"God created Adam and Eve, not Adam and Steve."- Recently a woman has shouted this old homophobic slogan at the Pride marchers in east London. But the truth is far away from this. In between Adam and Eve, there are many other fluid gender identities all over the world. In the Indian context, Mythologist Devdutt Pattanaik, in his 2014 book Shikhandi: And Other Tales They Don't Tell You, had examined the queer behaviour of characters in Hindu mythology. He opined that queerness isn't only modern, Western or sexual. He says that a close look at vast written and oral traditions in Hinduism, some over two thousand years old, and one would find many overlooked tales, such as those of Shikhandi, who became a man to satisfy her wife; Mahadeva, who became a woman to deliver his devotee's child; Chudala, who became a man to enlighten her husband; Samavan, who became the wife of his male friend; and many more. It is clear from this that the concept of transgender has been prevalent in Indian culture from the time immemorial.
But in India, the existence of other genders beyond the male-female binary has legally been endorsed only in 2014. In 2014, the Supreme Court, in National Legal Services Authority v. Union of India declared transgender people to be a 'third gender' and affirmed that the fundamental rights guaranteed under the Constitution of India will be equally made available to transgender people. The judgment gave them the right to self-identification of their gender as male, female or third-gender. Moreover, the Court also held that as a transgender community was a socially and economically backward class, they will be granted reservations in admissions to educational institutions and public employment.
"Beware of land where celibate men decide what is good sex''-quips Devadutt Pattanaik in his book. So also the exclusively cisgender dominated state apparatus evolve and enforce laws and pronounce judgments upon the rights and duties of the transgender. In India, the representation of transgender people in the government and decision-making process is abysmally minimal. Barring Shabnam "Mausi" Bano, who was elected to the Madhya Pradesh State Legislative Assembly in 1998, no other transgender person ever got elected to an Indian legislature. In this circumstance, the apathy of the powers-that-be towards the transgender population is understandable.
The Supreme Court observed in National Legal Services Authority v. Union of India: "Once it is accepted that the Transgender is also part of vulnerable groups and marginalized section of the society, we are only bringing them within the fold of aforesaid rights recognized in respect of other classes falling in the marginalized group. This is the minimum riposte in an attempt to assuage the insult and injury suffered by them so far as to pave way for fast-tracking the realization of their human rights''.
But unfortunately, the rights granted by the Supreme Court has been remaining dead letters as the Government had neglected to pass appropriate legislation for giving effect to the directions of the Supreme Court for the last five years after the landmark judgment in National Legal Services Authority v. Union of India case. In 2014 A proactive Member of the Rajya Sabha, Tiruchi Siva from the DMK, introduced a Private Member's Bill to affect rights of trans-persons titled the Transgender Persons (Protection of Rights) Bill, 2014. The Ministry of Social Justice and Empowerment instead of facilitating the 2014 Bill, introduced a prejudiced Bill titled the Transgender Persons (Protection of Rights) Bill, 2016. The Bill of 2016 has subsequently been lapsed. Thus the Government has committed unpardonable delay and neglect over the rights of hapless transgender community.
The Lok Sabha passed on August 5, 2019 the Transgender Persons (Protection of Rights) Bill, 2019 which aims to set up a mechanism for social, economic and educational empowerment of transgender people. While introducing the Bill, Minister of State for Social Justice Rattan Lal Kataria said that according to the 2011 census there are more than 4.80 lakh transgenders in the country. "I am very happy that a Bill that looks into the "welfare'' of Transgenders has been passed. However I feel strongly that it should have been rights-oriented instead of their welfare alone"-says Anjali Gopalan, the founder and executive director of the Naz Foundation (India) Trust, an NGO dedicated to the fight against the HIV/AIDS epidemic and LGBTQ rights.
The glaring lapse of the present Transgender Persons (Protection of Rights) Bill 2019 is that it takes no steps to implement the Supreme Court direction of reservations to the transgender people in admissions to educational institutions and public employment. The transgender people are the most socially and educationally backward section of society. As such, as the Supreme Court directed, they should be granted reservation in education institutions and public employment.
The Supreme Court had held that the non-recognition of the third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. is discriminatory to the transgender. In Arun Kumar vs. the Inspector General of Registration (2019), the Madurai Bench of the Madras High Court held that a marriage solemnized between a male and a trans-woman, both professing Hindu religion, was a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India, which has been reiterated in Justice K. Puttaswamy v Union of India and again in Navtej Singh Johar v Union of India. The discrimination based on sexual orientation or gender identity would impair equality before law and equal protection of laws and violates Article 14 of the Constitution of India. The present Bill is silent on these vital aspects like the marriage of transgender people, the right to adoption etc. The Surrogacy (Regulation) Bill, 2019 passed by Lok Sabha on August 5, 2019, excludes the transgender people from the right to have children through surrogacy.
The National Council for Transgender Persons stipulated in the Bill is apparently inadequate for safeguarding the rights of transgender people. The proposed Council is an official-dominated body without sufficient powers and functions. The Transgender persons deserve a National Commission for Transgender Persons, on the lines of National Commissions for SC, ST, Women and the Child Rights. Such a Commission should be a representative body of the Transgender community and should have the powers of a civil court. "Setting up a National Council without any teeth is not what is needed. A Commission with judicial powers is what is needed"- says Anjali Gopalan.
Section 9 (3) of the Constitution of South Africa guarantees that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, inter alia, gender, sex and sexual orientation. Article 15 of the Constitution of India prohibits the discrimination on grounds of religion, race, caste, sex or place of birth. This Article of the Indian Constitution should be amended to include Gender and Sexual Orientation as the grounds for non-discrimination.
The present Transgender Persons Bill is as parsimonious as Mr Bumble, the cruel and pompous beadle of the poorhouse in Charles Dickens' novel Oliver Twist. The hapless transgender people are being hoodwinked by the Bill for tremblingly coming forward and asking for some more gruel. "You parents—if your children ask for a loaf of bread, do you give them a stone instead?''-asks the Bible. In the transgenders' case, they have been given a stone instead of a loaf of bread.
The author is an independent researcher with Graduation in Law and Post Graduation in Political Science.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]