Abstract

In spite of national and international protections, transsexuals have been a neglected community worldwide. Baring few countries, there is no recognition of their rights and are sometimes forced to lead animal survival life. Before Naz Foundation’s case, humiliation, torture and cruelty with the sexual minorities were mostly unnoticed in Indian society. In the said case some legal protections were recognized by the higher judiciary in India. In this research paper, I have tried to point out discrimination against this community in various way.

Introduction

Transgender is normally defined for people whose gender identification, gender expression or conduct does not conform to their organic sex. Transgender may also takes in men and women who do not now perceive with their intercourse assigned at beginning, which encompass hijras/eunuchs who, on this writ petition, describe themselves as “Third gender” and that they do no longer identify as either male or lady. Hijras aren\’t guys by a distinctive feature of anatomy look and psychologically, they\’re additionally now not ladies, even though they\’re like women without a lady duplicate organ and no menstruation.

In a landmark judgement of Supreme court of India , National Legal Services Authority vs. Union of India (dated 15 April 2014, AIR2014SC1863, the ‘Nalsa Judgement’), which declared transgender people to be a ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step towards gender equality in India.Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.
In the above Judgement(Nalsa) Supreme court, declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and for the purposes of laws enacted by the parliament and state legislatures.

Non-recognition of the Third Gender in the Indian legal framework has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as in Indian workplaces. In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act,2019 (the ‘Act’).

‘Transgender’ as defined in the Act, refers to and includes all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.

Discrimination of Transgenders on various grounds

l. Sex Discrimination

Action is taken against an individual because of stereotypical beliefs about the nature of men and women (about their appearance and behavior). The argument for a straightforward application of sex-based anti-discrimination law has been rejected in many cases. This fails to acknowledge that the transgender person has been singled out for adverse treatment based on a belief about his or her sex – namely, that he or she should not change his or her sex or express it in a different manner than cultural norms allow.

II. Disability Discrimination
Because of misperceptions and misunderstandings about disability laws, some people have expressed discomfort in pursuing legal protections for transgender people based on disability. The term ‘disability’ in anti-discrimination laws, however, is not used in the popular or colloquial sense, and is not limited to individuals who are significantly debilitated or who appear outwardly ill.

III. Sexual Orientation Discrimination
Transgender people are harassed because they are perceived to be gay. Assumptions about a person’s sexual orientation may often arise either because of clothing the person wears or because of their gender presentation, which may be subtler than a person’s attire.

IV. Discrimination in Employment/Education
Hijras find it extremely difficult to get suitable employment of their choice. Due to social discrimination in employment most of them are forced into sex work. Apart from the fact of social discrimination, the low levels of literacy in the community also ensure the social, economic and political powerlessness of the community.

V. Discrimination by the Police
Oppression by police turned out to be one of the major concerns of the gay, bisexual and transgender people.
Extortion: The police often stop gay/bisexual men in the cruising areas, threaten them saying we know what you are doing, take their names and addresses and extort money from them. No FIRs are recorded.
Illegal detention: The police in this case take people in for questioning and detain them in the lock up for periods of time varying from overnight to a few days. They do not file (FIR) and keep no documentary evidence of the person’s detention.
Abuse: The police often abuse the men using filthy language, beat them up and even subject them to sexual abuse.

VI. Discrimination in the Family
Some families, once they realize that their children are a transgender, they rather disown and send him/her away rather than encourage and be there for them. This is what makes them turn to other immoral activities knowing well that there is no longer family for them.

Law And Justice

The Supreme Court rulings on Section 377 (Naz Foundation vs. Government of NCT of Delhi and Others & Suresh Kumar Koushal and another vs. NAZ Foundation and Others) and transgender right document confusion of notion inside the judiciary. The conflicting judgments of the courtroom on homosexuality seen at the side of its enlightened ruling on transgender rights probable displays a sluggish evolution of liberal notion within higher Indian judiciary.The needs of the 21st century and the enlightened vision of the Indian Constitution, with its attention justice, liberty, equality, and fraternity assuring the distinction of the person, mandate a creative citing of the regulation.

Background

Section 377 of the IPC categorised consensual sexual intercourse between same sex people as an “unnatural offence” which is “against the order of nature”. It prescribed a punishment of 10 years imprisonment. The provision is a Victorian-era law, which survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or have decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations.

Naz Foundation (India) Trust challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21 before the Delhi High Court.The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between two consenting adults – this violates the right to privacy and personal liberty under Article 21 of the Constitution. The Court held that classifying and targeting homosexuals violates the equal protection guarantee under Article 14 of the Constitution. Section 377 thus violated human dignity which forms the core of the Indian Constitution.

Several organizations and individuals challenged the Delhi High Court judgment in the Supreme Court. They argued that: the right to privacy does not include the right to commit any offence; decriminalizing homosexuality would be detrimental to the institution of marriage and would lure young people towards homosexual activities.

The Supreme Court reversed the Delhi High Court verdict in 2013 in it Suresh Koushal judgment and held that the decision of decriminalizing homosexuality can only be done by the Parliament and not the Court. It also held that Section 377 criminalises certain acts and not any particular class of people. It also alluded to the minuscule number of people who were members of the LGBTI community and the fact that only a fraction amongst them had been prosecuted under Section 377.

Several curative petitions were filed challenging the Supreme Court judgement. While the curative petitions against the Suresh Koushal judgment were pending, 5 individuals from the LGBTQ communities – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed a fresh writ a petition for scrapping Section 377 IPC in so far as it criminalised consensual sex between same-sex individuals.

The Supreme Court on January 5, 2018, formed a constitution bench for hearing the challenge to Section 377 in a comprehensive manner.
The 5 judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the matter from July 10th, 2018.

On 6th September, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.
They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).

Conclusion

These new laws alone won’t change the discrimination that many transgender people (often called hijra in India) face: many are excluded from mainstream employment and society – to the extent that some hospitals have reportedly refused to treat them – and are regularly harassed by police. It is however an important step in the right direction, because legal recognition can underpin greater social acceptance and community integration. The Supreme Court is also introducing quotas to increase the representation of transgender people in employment and education. Thus we need to change our mentality towards this community and give them respect and space.