SOCIAL EXCLUSION OF TRANSGENDER: ACHIEVING SUSTAINABLE DEVELOPMENT GOALS IN INDIA BY - DR V SHYAM SUNDAR
SOCIAL EXCLUSION OF TRANSGENDER:
ACHIEVING SUSTAINABLE DEVELOPMENT GOALS IN INDIA
AUTHORED BY - DR V SHYAM SUNDAR
Assistant
Professor of Law (SS),
Chennai
Dr. Ambedkar Government Law College, Pudupakkam
ABSTRACT
Gender is a common aspect in every aspect of one’s life. It
is predestined into two categories: male and female. Most people's gender
matches the gender assigned during birth. But for transgender people, this may
not be the same. Their feeling, and attitude of attraction towards the
different sex leads to a change in their gender identity. After their
biological change, they make up their mind to live with the transgender
community as their families are not ready to accept them. They were documented
as “Third Gender” by the Apex Court of India in the year 2014. After the
judgement, their rights and needs were not implemented by Government and Society. The State of Tamil Nadu has taken effective policy related
to transgender people and made an unprecedented effort to look into the social
needs of the Transgender communities even before the 2014 judgment. The State
Government has initiated numerous steps to enhance the high-satisfactory lives
of Transgender networks like issuing ration cards, voter identification cards,
housing, bank loans, and free travel in government buses. The author will
further analyze the social exclusion of a transgender community in India and
how pioneer in achieving Sustainable Development Goals for transgender
development.
INTRODUCTION
“All human beings are born free…..” and includes the
Transgender. As human beings, their identity is valid, their feeling is valid,
and their life journey is valid. But the society treated them as invalid
persons. Transgender is a common people, those who expect dignified respect
from the social order. Their desired attention and activities change from the
normal course which leads to a pathetic situation in their life.
Sadly, transgender persons have to deal with institutionalised
discrimination, harassment, and marginalization in a nation like ours where
they have a particular position in society. The well-being of the lack of
attention given to the transgender community on the legislative front is two of
the primary issues. The stigma around transgender healthcare is pervasive.
Their bodies are viewed as abnormal. One of the key causes of both societal
stigma and lack of information. A fundamental human right, access to
healthcare, is in jeopardy in their situation. The court in India continues to
disregard gender parity and "gender neutrality," despite the
country's assertions to the contrary when it refers to crimes involving sexual
offenses. In addition to recognizing India has made the ground-breaking
decision to recognise transgender individuals as having the same fundamental liberties
and constitutional rights as those who identify as either male or female.
"A
person whose gender does not match the gender assigned to them at birth, yet
they are persons with intersex variance and genderqueer," says a
transgender person. They are born with either of the anatomies but experience
gender expression, identity, or behaviour that is different from their birth
sex. “Transgender people attempt to express their gender identity in a variety
of ways. Some use their behaviour, dress, or mannerisms to live as the gender
they believe is appropriate for them, while others reject the traditional
understanding of gender.”
“Transgender
people are people whose identities diverge from stereotypical gender norms,
which solely recognize male and female genders. They have faced discrimination,
social marginalization, and physical violence. Transgender persons are
classified as Hijras, Jogappas, Sakhis, Aradhis, and other socio-cultural
groupings”. It
may also refer to people who are neither primarily male nor exclusively female.
Depending on the context, they may also be called "transvestites,"
"drag queens," or "drag kings,". Cross-dressers may be
included in a very broad definition of the word "transgender". People
who identify as transgender may choose not to label either straight,
homosexual, bisexual, or sex as their sexual preference. Those having
biological gender that "does not fit typical binary ideas of male or
female bodies" are known as intersex, which is distinct from transgender.
Cisgender is the reverse of transgender and refers to those whose gender
identification or expression corresponds to their identified gender.
Some
individuals will not get into any category but are referred to as transgender.
The article discusses transgender rights in India and their legal protection.
The Constitution of India guaranteed rights to Transgenders peoples too.
Presently, in India, the rights related to transgender like, employment,
education, and health services safeguarded by the new Act in the year 2019.
Welfare schemes have also been put in place to safeguard transgender people's
rights.
The policy implementation to protect the transgenders those who are all face
discrimination once they changed. They face extreme discrimination in education
and health care services. They are not provided with proper equal access to
educational institutions. They do not have easy access to toilet facilities in
educational institutions. Transmen are facing lots of sexual abuse from male
students and transwomen are neglected by the female students as they thought
that they are still male.
TRANSGENDER POSITION IN INDIA
In India,
unlike most of Asia, transgender people do not have legal protection.
Transgender people are recognised as the third gender in various states,
including Tamil Nadu, Kerala, and Odisha. The single-member bill by Member of
Parliament Mr.Tiruchi Siva aims to protect transgender people.
“A transgender person is defined as someone who is partially female or male, or
a combination of female and male, or neither female nor male, according to the
bill. Furthermore, the person's gender cannot be the same as the gender
assigned at birth”. Transmen,
trans-women, those with intersex variants, and gender-queers are all included
in the bill.
The SC has
held in a landmark verdict in 2014, laying out a
framework for transgender people's rights.
It reads: “The right to choose one's gender is included in the right to
life and the right to live with dignity, recognising the civil rights of this section.”
The SC ordered the state to incorporate the term "third gender" for
the Transgender in all aspects like forms and applications. It was mandated
that a person's choice of one of the three genders be solely their own. Ironically,
the nation that is forward-thinking enough to acknowledge the third gender is
still too archaic to establish laws against sexual offenses that are
gender-neutral. Because these criminal regulations do not even encompass the
masculine gender, the debut of the transgender person is a pipe dream.
Fortunately, transgender individuals now have constitutional equality. The
equal standing that people have under the nation's Constitution is known as
constitutional equality.
No one shall
be the target of sex-based prejudice. However, despite having both legal
recognition and enshrined in the constitution equality, the way transgender
people are treated in society and the law because there are no laws, it is
implied that their basic rights under Articles 14, 15, 19, and 21 are violated.
This is because there are no laws against sexual offenses. lack gender
neutrality. It is terrible since it is alleged that the majority of sexual
crimes against transgender people happen when they seek assistance from the
authorities. The PUCL of Karnataka looked into transgender people being
subjected to human rights violations, and the findings were shocking. It also provided for reservations
for this marginalized segment inside the OBC quota. Karnataka is the first and
only state to provide 1% reservations for Transgenders in the direct recruitment
process from 2021 and before the Odisha government in 2016 provided social
welfare benefits. It was suggested that a commission like the National
Commission for SC/STs be established to protect the interests of this minority.
Since, the beginning of
recorded history, trans individuals have existed in every race, class, and
community. The common name of “Transgender” was coined in the year mid of 1990s
for the hijras, kinnars, and others. Despite recent progress for the LGBTQAI+ community,
many transgender people believe there is still much more work to be done in the
struggle for equality.
WORLD HEALTH ORGANISATION (WHO)
INITIATIVE
It has
explicitly defined the distinction between these phrases, which are sometimes
used interchangeably. In the context of Transgender health, the WHO has taken
appreciative measures for their specific health needs. Through, the
International Classification of Diseases (ICD-11), the WHO made a significant
change related to Transgender rights. As per the ICD-11, they introduced
“Gender Incongruence” replacing “Gender Identity”. The present WHO policy
ensures that Transgender have the right to receive appropriate and respectful
healthcare services which include hormonal therapy, mental health counselling,
and Sexual Reassignment Surgery (SRS). Thus, WHO ensures that transgender
people are recognised with Human Rights. The WHO has a target to achieve a
competent health workforce before 2030 for all including Transgenders.
HEALTH
AND MEDICAL FACILITIES FACED BY THE TRANSGENDERS
Significant
health inequalities affect transgender people in several areas. Actual or
perceived barriers to care may affect transgender people's desire and ability
to get it and stigma within medicine and the availability of health care in
general. Transgender women, also known as MTFs, are widely having a global HIV
incidence of 20% and are acknowledged as a group of people with a
disproportionately high infection rate. In a US sample of 1093 transgender
people, “clinical depressive disorder (44.1%), anxiety (33.2%), and
somatization were all quite prevalent (27.5 percent). In the biggest nationwide
study of transgender people to date (n=6,456), 26% of respondents stated they
presently or in the past used alcohol or drugs to cope with abuse, 30% of
respondents said they currently smoked (1.5 times the rate of the general
public), and 41% said they had attempted to kill themselves.” The same being encountered
by some of these national healthcare hurdles, transgender people suffer several
that are exclusive to them and are greatly exacerbated. Transgender people
typically need medical treatments, in addition to the usual treatment, such as
hormone therapy and/or surgery. This text's objective is to provide a brief assessment
of the existing literature describing the obstacles that transgender people
have in obtaining high-quality medical treatment, as well as to suggest
research priorities for figuring out both the causes of these hurdles and
possible workarounds.
Lack of
availability to health treatment is the main obstacle to successful hormone
therapy and regular hospital treatment for transgender patients. Transgender
patients contend that the main obstacle to access is a lack of specialists in
the area, despite guidelines and evidence in favour of the new transgender
medical care paradigm. The care of transgender people is not covered in
traditional medical curriculum, and too few doctors are knowledgeable and
comfortable treating this population. Financial obstacles (lack of insurance,
lack of income), discriminatory treatment, and healthcare professionals' other
ones include a lack of cultural awareness, barriers in the healthcare system,
and economic barriers that have been reported (transportation, housing, mental
health). While other minor groups also tend to face some of these healthcare
insurance hardships, transgender people suffer more as they are exclusive to
them and are worse. Affordable health care is one of the most significant
welfare measures. Gender-positive healthcare includes surgical and non-surgical
procedures that aid a person in expressing their deeply held gender identity.
Sex
reassignment surgery ("SRS"), hormone treatment, and psychotherapy
are a few of them. The problem is much trickier than it seems. SRS is thought
seen as a cosmetic operation that doesn't require intervention. On the other
hand, the transgender community claims that medical care that is
gender-affirming is necessary. They are necessary for social acceptance as well
as bodily self-acceptance and identity. Given the significance of these
procedures for maintaining one's identity and gaining societal acceptability,
referring to them as "cosmetic" would be unfair to the transgender
community. Medical necessity and the "autonomy principle" are the two
most well-known justifications or reasons for state-sponsored SRS surgery.
HUMAN
RIGHTS OF TRANSGENDERS: INTERNATIONAL CONVENTIONS & NATIONAL LEGISLATIVE
PERSPECTIVES
Transgenders
are vulnerable in the world for the past centuries. Some international
convention talks about advancing orientation towards sex and equality over Gender
Identity.
The panel of experts in “International Human Rights Law and sexual orientation
and Gender Identity” enacted the “Yogyakarta Principle from 6 to 9 November
2006. Principle 1, Human beings of all sexual orientations and gender
identities are entitled to the full enjoyment of all human rights”. The state
must implement the principles in their local laws for the benefit of all.
More Indian legislatures establish the rights of the Transgender. The Indian
Penal Code, 1860, Criminal Tribes Act, 1971, The Constitution of India, 1950,
The Immoral Traffic (Prevention) Act, 1956, Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH), The
Transgender Persons (Protection of Rights) Act, 2019.
The Act for
Preventing, outlawing, and addressing female sexual exploitation at Work, 2013,
is exclusively intended to “protect women in the workplace and is gender-specific.”
However, it doesn’t speak about the fact that males and transgender people can
also experience sexual harassment at work. Speaking specifically about
transgender people, they are a sexual minority who are more vulnerable to
harassment and violence than males owing to their sexuality and then women due
to the absence of legislation protecting them. After the passage of the
Transgender Persons (Protection of Rights) Act, transgender now has formal
recognition of transgender individual, transgender people are now allowed to
work anywhere without facing any legal repercussions for their gender identity.
Because the male-dominated culture still does not recognize the different sexes
as among them, who are equally able to work and earn, transgender people are
also victims of sexual harassment at work under POSH. The Transgender Persons (Protection of Rights) Act, 2019
aimed to provide for the Protection and welfare rights of the Transgender. The
prohibition against “discrimination, recognition of the identity of transgender
persons, welfare measures by the government, Education, Social security, health aspects of transgenders,
offenses, and penalties for the crimes against transgenders” were incorporated
in the Act. The Act fulfils the SDG which were implemented by the UN
Development Group related to Lesbian, Gay, Bi-sexual, and Transgender persons. The
National Council for Transgender Persons was enacted on 21/08/2020 through
Governmental order.
TRANSGENDER POPULATION AND
EMPLOYMENT
RATES IN INDIA
The census
of India, 2011 stated that there nearly 487503
are living in the country. Uttar Pradesh is having more transgenders, followed
by Andhra Pradesh and Maharashtra. Tamil Nadu stands in the 7th
Position. Out of the total 16% of SC Transgenders and 7% of ST Transgender are
living. The overall literacy rate is 56.07%. The NHRC’s first-ever research on
transgender rights gives a clear image of the nation’s transgender situation. According
to the survey, ninety-two percent denied participation in any employment. The
government must ensure that, with just a small percentage of them finding beneficial
work.
Only a smaller number of transgenders achieved some high in their life. Like
the first advocate - Sathyasri Sharmila, first Judge - Joyita Mondal, first
police officer - Prithika Yashini, first college principal - Manabi
Bandopadhyay, the first person to contest in the election – Mumtaz, first MLA –
Shabum Mausi, first soldier in Army – Shabi and first medical assistant in
operation theatre – Jiya Das.
Change must begin at the family level as a culture. Children should be taught
that trans persons are just like us, with hopes and dreams. They may not always
have the resources to fulfil their goals, and we can help them along the way.
We must treat them with respect, just as we would any other human being. “Equal
opportunity in hiring, providing infrastructure such as restrooms for the third
gender, action against misconduct/harassment, medical insurance and policies,
and health care” are all examples of how workplaces can be more
transgender-inclusive. Finally, we must make our society more inclusive for
them by allowing them with us equally.
SOCIAL EXCLUSION OF TRANSGENDER IN
OCCUPATION
AND EMPLOYMENT:
The Gender
Recognition Act, 2004 of the United Kingdom, The Canadian Human Rights Act, The
Gender Identity Law, 2012 of Argentina, and other countries' laws emphasize the
rights of the Transgender. In India, the Apex Court and some of the High Courts
provide welfare measures for the transgender community. The case laws namely, National
Legal Services Authority (NALSA) Vs. Union of India (2014 – Recognition of
Transgender as Third Gender), Navtej Singh Johar Vs. Union of India
(2018- ensuring dignity and gender identity), National Legal Services
Authority Vs. Union of India (2017 – Transgender rights implementation), Gopi
Shankar.M Vs. State of Tamil Nadu (2019 – Madras High Court directed to
give community identity cards to Transgender) provided welfare measures to that
community. The said enactments and cases provided welfare measures to
Transgender but, but social exclusion
of transgender individuals in the realm of occupation and employment is a
significant issue in India. Despite legal advancements recognizing transgender
rights, pervasive societal attitudes, stereotypes, and discriminatory practices
often hinder their full participation in the workforce. Transgender individuals
frequently encounter discrimination during job searches and in the workplace.
This discrimination can manifest in various forms, including biased hiring
practices, workplace harassment, and unequal opportunities for career
advancement. While legal frameworks in India have evolved to recognize
transgender rights, implementation and enforcement of these laws may be
lacking. Transgender individuals may not always have legal recourse against
workplace discrimination, and the absence of comprehensive anti-discrimination
laws specifically addressing gender identity can contribute to their
vulnerability. Transgender individuals often face challenges in securing
employment due to societal prejudices and stereotypes. They may be confined to
specific industries or roles and encounter barriers when attempting to enter
traditionally gendered occupations. Workplace harassment, including verbal,
physical, or psychological abuse, is a prevalent issue for transgender
individuals. A lack of awareness and understanding about transgender issues can
contribute to the creation of hostile work environments.
Many workplaces lack inclusive policies that specifically address the
needs of transgender employees. This includes the absence of gender-neutral
facilities, non-discrimination policies, and healthcare provisions that cater
to the unique needs of transgender individuals. Discrimination against
transgender individuals often begins during their educational years, leading to
limited access to quality education. This educational exclusion can
subsequently impact their employment prospects and professional development. The
social exclusion of transgender individuals in employment contributes to
economic disparities. Limited access to employment opportunities can lead to financial
instability, poverty, and dependence on informal and precarious forms of labour.
Limited access to education, no employment, no viable economic
conditions, and deprivation by the parents lead some transgender individuals
may turn to sex work as a means of survival. The sexual teasing and torture
from society push them into prostitution. In recent times, the number of
transgender sex workers numbers are increased in multiple and they are facing
lots of sexual and physical harassment from their clients and law enforcement.
They don’t have the financial capacity to protect themselves from legal
proceedings. By way of coercion, some transgender sex workers undergo Sexual
Reassignment surgery for prostitution. That leads to a higher prevalence of
HIV/AIDS and face lots of health diseases.
CONCLUSION
Discrimination
of transgenders can be witnessed in many domains, as evidenced by literature
and media depicting the issues and struggles that they confront. Many
researchers have also corroborated and suggested that the Transgender’s social
sidelining led to a loss of uniqueness, self-assurance, and a feeling of
personal and communal accountability. The society and students must be educated
about the Transgenders.
The Apex Court also supported transgender people's ability to choose whether to
identify as a woman, man, or Transgender. This would safeguard their
entitlement to respect and decency in treatment in their daily lives.
Additionally, the court mandated that transgender persons get accommodations in
public educational and employment settings from both the federal and state
governments, as well as social support programs. In this sense, one can contend
that applicants' eligibility to receive benefits intended for transgender
people must be verified using objective standards. Benefits may be fraudulently
claimed by others if the only requirement for eligibility is one's
self-declared gender identification Bill, 2016: Transgender Persons (Protection
of Rights), establishes protections against discrimination for transgender
people and helps programs for their health, education, and employment. This
allows the Bill to recognise the identification of transgender people by
allowing for both a screening procedure and self-perceived gender identity.
Transgender people's ability to exercise their right to health has been
severely restricted in India for millennia due to persistent discrimination
against this minority. The Transgender Person Act of 2019 had high hopes but
has fallen short of them. The NALSA case (2014) paved the way for the
community's progressive and beneficial rights. The policies in India have, to
put it mildly, been deficient, particularly in the area of healthcare. A
fundamental human right, access to healthcare, is in jeopardy in their
situation. An aspect that rarely receives much attention but is crucial for the
majority of transgender persons is gender-affirmative surgery. Transgender
people frequently struggle to balance their outward exposure with the general
state of their community invisibility and are at risk for health problems. These
services both keep people physically and psychologically healthy by preventing
illness and disease from occurring, and they also lessen the pain or suffering
that comes with a disease or illness by providing medical attention. The
Supreme Court upheld the right to choose one's gender identification in the NALSA
case. This imposed a responsibility on the part of the State to uphold the
rights and welfare measures made for the transgender community.
Finally,
speaking about the social exclusion of transgender community is a matter of
justice and human rights alone however also a crucial component in achieving
SDGs in India. By nurturing inclusivity and dismantling unfair practices, we
the society pave the way for a more equitable and sustainable society. To
achieve the inclusion of transgender community into society, the State and
every individual ensure that they will attain legal Recognition and protection,
Inclusive Education, enhanced healthcare access, anti-discrimination in job
opportunities, govt support in entrepreneurship, and mental health &
well-being. The true measure of development lies not only in economic progress
but also in the inclusivity and well-being of every individual, regardless of
their gender identity.
2019,
Transgender Protection Act, clearly talks about their rights and benefits. As
per the Act, the state has ensured the safeguard of human rights of
transgenders in the normal course of life. The voice of the Transgender has to
be given a response and their claims for their rights should be given priority
by the government. The government has to take necessary steps publicities
through the media and social networking sites about the welfare schemes of the
Transgenders. The proper counselling should be given to Law Enforcement
particularly Police Department to handle the Transgenders without violating
their human rights and discrimination. Gender identification is the choice of
the transgender who identifies herself as a woman, then protection available to
women victims of crime must be made available to her. The Union Government has
to take proper data and census about the transgenders and ensure that everyone
tastes the welfare schemes.
To conclude,
what Transgender expect from society is the quote of Bill Maher “Transgender
people deserve something vital; they deserve your respect.”
