Before the case of National Legal Services Authority v. Union of India affirmed the term ‘The third gender’, India had different expressions for people who tick on the ‘other’ checkboxes. The gender is defined as people who do not conform to the organic sex’s identification or conduct. After this ostracised gender went through derogatory behaviours and name calling, our society has finally changed a lot to accept their existence. But the acceptance is still bound by “what they are” and “how they are”. This estimated one million community has never got a ‘first class’ lifestyle. The disparities are not restricted to the societal stigma on their existence but also every day discrimination and denial of human rights.
The Constitution of India guarantees rights and protections to all humans in general. The only distinction in this regard are the reasonable restrictions except which no discrimination on the grounds of sex, religion, caste or creed is not tolerated. Even after the constitutionally guaranteed political and other benefits, the third gender community still finds itself in the same position. The issue that these laws are not implemented, that the gender finds itself more often than not without a job in the respectable positions is an unavoidable truth in which inequality is an everyday affair.
This particular issue took the light when Air India was brought to the court for refusing an airhostess job claiming she was a transgender and that the post was only reserved for women. The denial is an act which is banned by law. The question on how the gender forms a reasonable nexus with the description of job calibre is arbitrary and undoubtedly, is an infringement of equality under Article 14. The denial also violates Article 15 for infringing the prohibited discrimination on the basis of sex. Article 21 fnds as the personal dignity of the gender stands into question. The struggle as ‘other’ is not merely the name calling but also the opportunities since that lies as the only one through which the gender would be respected and could also afford to grow in their lives. Most of this gender related issues are not only connected to the societal issue but also because of their lifestyle due to the lack of resources and opportunities limiting them to only begging, which more often than not, is a bad business with no security.
When the Constitution sought to remove the untouchability issues, along with the guaranteed rights under Article 17, there were also reservations and job opportunities that the issue has almost been demolished and seen in only backward areas.
But a major issue that crosses between the blinking of an eye is the fact that the reservations bring lifelong recognition under the same society. The passing of Transgender Protection Act, 2019 starts on the wrong foot. The various instances where the Act does not take in the consideration of trans-activists puts the first question on the upliftment.
The most serious flaw that remains is the process of trans-people changing their documents to reflect the identity. The new law sets up a two-step process. Firstly, it requires the person to apply for a “transgender certificate” from the District Magistrate of the particular location. This specific part can be done on the basis of the person’s self-declared identity. Only for this step does the certificate holder gets eligible to apply for a “change in gender certificate,” which is to change the legally declared gender to a male or female. However, this second step requires the person to provide different documents such as surgery proof, issued by a hospital official, which is again sent to the District Magistrate for a second evaluation. It also requires the officials to be “satisfied with the correctness of such certificate.”
One important factor to notice here is that it sets an extraordinary amount of power with one government officer who might have the only power to abuse the position or arbitrarily “qualify” to the gender as required to be recognized as who they are. It also pressurizes people into medical procedures they might not want or might be comfortable with. Such a forceful act is in itself a fundamental rights violation made by the government officials.
Repetitively the Indian courts have long held that trans people deserve the government’s recognition on their own terms and with actions which are assimilated from their demands, without mandatory intervention or discrimination but the same has been dismissed.
Improvement in the status of the transgender community needs to be a collective effort in order to empower the discussed community in the workplace and to reduce the social stigmas which could also end up improving their economic position. Although the Act only puts an onus and does not place legal requirements on the people concerned, in view of the changing the dynamic status. However, preparing such an Indian workspace for an inclusive approach towards transgender individuals is going to be a continuing uphill task and accommodating such societal change of this magnitude is definitely going to be a slow process in India.
Eduindex News 