CHAPTER - 5

TRANSGENDERS

• Transgender is a broad category of Hijras, eunuchs, Kothis, Aravanis,

that includes those people who find Jogappas, Shiv-Shakthis etc.
a mismatch between the sense of
their own gender identity and the sex
assigned at birth. The Transgender Transgenders in Indian Mythology
Persons (Protection of Rights) Bill, 2019 • Lord Rama, in the epic Ramayana,
passed by the Indian Parliament on while leaving for the forest upon being
November 26, 2019, defines a trans- banished from the kingdom for 14
person on the same lines (someone years, turned around to his followers
whose gender does not match the one and asks all the ‘men and women’ to
assigned at birth). return to the city. Among his followers,
• Justice KS Radhakrishnan, who headed the transgenders alone did not feel
the two-judge Supreme Court bench in bound by this direction and decide
National Legal Services Authority Vs. to stay with him. Impressed with their
Union of India (UOI) and Ors. said that devotion, Rama sanctions them the
“Recognition of transgender as a third power to confer blessings on people
gender is not a social or medical issue on auspicious occasions like childbirth
but a human rights issue”. and marriage, and also at inaugural
functions which, it is believed set the
stage for the custom of badhai in
LGBTQ is a spectrum of identity across which transgenders sing, dance and
the gender spectrum which includes - confer blessings.
Lesbians, Gays, Bisexuals Transgender
and Queers. All these groups have their • Even in the Mahabharata, Arjuna
own issues and challenges that need to had to take the help of Sikhandi,
be understood in order to make a gender a transgender prince, to eliminate
sensitive society. Bhishma and eventually win the war.
• In Hindu mythology, Bahuchara Mata
who is a Hindu Goddess is considered

Historical status of as the patronage of the Hijra

community in India.

transgenders in the
India: Present Status in India:
• According to the 2011 Census, total
• The concept of hijras and other population of transgenders is 4.8 lakh
transgenders is not a new concept in but only 30,000 are registered with the
India. They have been recognised in Election Commission.
the Indian Society since the ancient
times. They have got a strong historical • However, estimates suggest that there
presence in the Hindu scriptures and are 50-60 lakhs transgenders in India
other religious texts. In general, the but most keep it a secret to avoid
Transgender Community comprises discrimination.

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• As per 2011 census, there were 54,854 themselves discriminatory. Ex: Rape
transgender children below the age of six. of LGBTQ is punishable by much less
severe punishment of maximum 3 years
• On the educational front, the pass
(as per 2019 Act). Similarly most laws do
percentage of transgender persons of
not include LGBTQs.
class 10 has decreased by 15.79% and
those of class 12 has decreased by 16.66 • Discrimination in the Family: Some
%. families, once they realize that their
children are a transgender, they rather
• On health front, prevalence of HIV and
disown and send him/her away rather
STI among transgender populations in
than encourage and be there for them.
India, lack of awareness and institutional
discrimination constitute the biggest • Lack of access to educational
challenge. opportunities: Indian schools remain
unequipped to handle children with
• Mental health needs of the transgender
alternative sexual identities and make
community is barely addressed in
them feel comfortable with other
the current HIV programs. Available
students.
evidence suggest the need to address
alcohol and substance use among • Lack of employment opportunities:
transgender communities. Due to hiring biases, on-the-job
discrimination, wage inequalities and
thus they are forced into professions like
Extent of discrimination faced prostitution and begging for livelihood.
They are also victims of human
by them: trafficking.
• Sex based discrimination: Since they All these discriminations were verified
do not fall in the binary categorisation during a study conducted by the National
of male and female, they are Human Rights Commission on the rights of
discriminated in every aspect. They Transgender community in India.
frequently face sexual abuse and even
law-enforcement agencies do not take
their cases seriously. Denial of access to Study by National Human
health care, education, house on rent, Rights Commission (NHRC):
toilets in public places. Right to live in
parental home is also denied. The first ever study on the rights of
transgender community in India, done by
• Sexual Orientation Discrimination: the National Human Rights Commission
Transgender people are harassed because (NHRC) has brought following facts to the
they are perceived to be gay. Assumptions light.
about a person’s sexual orientation may
often arise either because of clothing the • Schools have not been attended by
person wears or because of their gender around 50-60% of them. Of those
presentation, which may be subtler than who attend, 62% face verbal abuses in
a person’s attire. schools and 15% face harassment by
both students and teachers.
• Legal discrimination: Homosexual
relationships are not recognized • About 92% of the transgender
when it comes to defining the family population or denied their right to
for the purposes of insurance claims, participate in the economic activity
compensation under the workman’s and even those who are qualified, are
compensation act, gratuity benefits and refused jobs.
for the purposes of nomination. Laws • Social rejection issue faced by almost

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 99% of them on one or more occasions, • The authorities must construct special
including from their own family public facilities for them and pay
members. attention to the unique medical needs
• Denial of jobs forces them to take low- of the community.
paying and dignified jobs for their
livelihood which includes begging, Taking cue from the judgement of the
taking Badhaai on births and marriages, apex court, the Indian Parliament passed
as sex workers etc. Transgender Persons (Protection of Rights)
• 57% are interested in getting sex- Act 2019 for protection and welfare of the
realignment surgery but lack funds for transgender community.
the same.
In response to the petition filed by National
Legal Services Authority (NALSA), the
Transgender Persons (Protection of
Supreme Court of India passed historic Rights) Act 2019:
judgement on the rights of transgender Transgender Persons (Protection of
people on April 15, 2014. The date of Rights) Bill, 2019 was passed by the Indian
verdict also coincides with the constitution Parliament on November 26, 2019. Key
of Aravani (Transgender) Welfare Board provisions of the act include:
by Tamil Nadu government as the first 1. The act defines a transperson as
of its kind in the country. The date is someone whose gender does not match
also celebrated by the trans and queer the one assigned at birth.
communities as Transgender Day.
2. It aims to prohibits discrimination
against them in employment, education,
Highlights of the judgement: housing, healthcare and other services.

• The judgement created the “Third 3. The act allows self perception of gender
Gender” status for the transgenders. identity. But it mandates that each
Thus it gave them a separate identity person would have to be recognised
apart from the existing binary of male as ‘transgender’ on the basis of a
and female. certificate of identity issued by a district
magistrate. It provides that, a revised
• The judgement provided for the right to certificate can also be obtained after
self determination of gender. Sex Reassignment Surgery (SRS).
• The court also directed the states and 4. It enforces a minor’s right of residence
the central government to treat the compelling any transperson below 18 to
transgenders as socio-economically cohabit with their natal family.
backward classes in social welfare
schemes. So, the judgement made 5. Prohibition against discrimination: The
it contingent upon the governments Act prohibits 8 types of discrimination
to take care of the transgenders by against a transgender person, including
including them in various welfare denial of service or unfair treatment
policies. in relation to: education; employment;
healthcare; access to goods, facilities
• The court ordered the governments opportunities available to the public;
to frame social welfare schemes for right to movement and right to reside,
the community and also generate rent, or own property; opportunity
awareness about them in the society to hold public or private office; and
through campaigns. These campaigns access to a government or private
would help in removing the stigma that establishment which has custody of a
pervades the society about transgender. transgender person.

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6. National Council for Transgender
Persons: will be setup Way forward:
with
representatives from the government,
transgender community and experts in • The idea of certification by the District
the field. It will advise the government on Magistrate needs to be revisited as it
formulating policies for the community, goes not only against the judgement
and monitor the implementation, and of the Supreme Court but also militates
address grievances, among others. against the idea of dignity of individual.
7. Health care: The government should • There is a need for affirmative Action
take suitable steps to provide health in the form of reservation in education
facilities to transgender persons and employment for the transgender
including separate HIV surveillance community, on the lines of provision for
centre and sex reassignment surgeries. the people with disability.
8. The government shall review medical • The greatest challenge lies in the
curriculum aimed at addressing the implementation of the law in its true
health issues of transgender persons spirit, sensitising the law-enforcement
and provide comprehensive medical authorities about looking to the
insurance schemes for them. concerns of transgender community
with greater sensitivity and compassion;
and mobilising the society in giving their
Critical Analysis of the Act: due to the most discriminated section
of the Indian society.
1. Nomenclature: Activists have a issue
with reference to the name. The • In 2014, The Rights of Transgendered
argument is that the term ‘Transgender’ Persons, was introduced in the Rajya
is restrictive. The term shows a lack Sabha as a private member Bill, by
of understanding of the complexities Tiruchi Siva, a Member of Parliament
in people who do not conform to the from Tamil Nadu. It aimed to provide
gender binary, male/female. a range of entitlments to such
persons, to be provided specifically
2. Self determination: This is one of the for them in health, education sectors,
controversial clauses of the bill. The skill development and employment
LGBTQ community is of the opinion opportunities, and protection from
that the need for an identity card by abuse and torture.
DM negates the principle of right to self
determination. While the government is • The community only hopes that the
of the view that, since benefits from the National Council for Transgender
state are linked to 3rd gender, they have Persons will allow for a more favourable
to attain an identity card. implementation of the law, and thus
provide more elbow room for genuine
3. No review mechanism: The Act does representations of the community that
not provide a mechanism for appeal or the Bill itself failed to accommodate.
review of decision, if transgender person
is denied a Certificate of Identity by the
District Magistrate.
Recent Initiatives:
4. It does not make provisions for
1. India’s first transgender home will be
affirmative action in employment or
established in Bengaluru. Exclusive
education despite the Supreme Court
homes for transgender children will help
mandate in NALSA Judgement.
them escape bullying, say members of
the community.

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2. Country’s first University for Transgender established in 2020 under the
Community will be opened in Uttar provisions of the Transgender Persons
Pradesh’s Kushinagar district. It will (Protection of Rights) Act, 2019. It is
facilitate its members to study right generally concerned with advising the
from first class upto the Post Graduation government on policy matters affecting
level and even do research and get PhD the transgender persons.
degree. The university is being built by • The Union Minister of Social Justice &
the Akhil Bhartiya Kinnar Siksha Seva Empowerment is the Chairperson (ex-
Trust (All-India transgender education officio) and Union Minister of State
service trust). for Social Justice & Empowerment is
3. The Kochi Metro has been a train to the Vice-Chairperson (ex-officio). The
success for members of the transgender National Council shall perform the
community and Kerala’s popular following functions, namely:
women’s self-help group Kudumbasree.
» (a) Advise the Central Government on
4. Noida Metro has also taken initiative
the formulation of policies, programmes,
to employ transgenders, a first of its
legislation and projects related to the
kind initiative in North India. It has also
transgender persons;
renamed its sector 50 Metro Station as
Pride Station to instil a sense of pride » (b) Monitor and evaluate the impact of
among the community and break the policies and programmes designed for
existing stereotypes. achieving equality and full participation
of transgender persons;
5. Transgenders above 60 in Kerala get a
monthly pension. » (c) Review and coordinate activities of
all the departments of the Government
6. Government hospitals in Kerala offer
and other Governmental and non-
free sex reassignment surgeries.
Governmental Organisations (NGOs)
7. Tamil Nadu government has taken dealing with matters relating to
initiatives to improve the lives of transgender persons;
transgenders by providing them with
» (d) Redress the grievances of the
identity cards, free housing, subsidised
transgender persons; and
food and education.
» (e) Perform such other functions as
8. At 2019 Kumbh-Mela in Prayagraj, Laxmi
may be prescribed by the Central
Narayan Tripathi, a Transgender and
Government.
Transgender Rights activist became the
Mahamandleshwar of Kinnarakhada • The other members of the Council include
and participated in Sahi Snan. representatives of various Ministries/
Departments, five representatives of the
transgender community, representatives
National Council for of NHRC and National Commission
Transgender Persons: for Women, representatives of State
Governments and UTs and experts
• The National Council for Transgender representing NGOs.
Persons (NCTP) is a statutory body

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