Role of Indian legal System in protecting gender equality in India with respect to third gender.

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Abstract

According to Article 15 of the Indian Constitution “The state shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them”. But why the society through dictates and judgment determine the identity of an individual and do gender inequality. These individuals who faces these challenges due to personalities and sexual orientations are later on categorized as ‘others’. They are basically abandoned by families and ridiculed by negative comments after that they have no other option than to beg or sing at wedding. Various rights have been given to the third gender but due to gender inequality and thinking of people these rights are not much active in society. LGBTQ has not been given that position that the other gender has got. Many developments has been made in society but despite these development and awareness contribution, major problems still plague this section of society. The paper aims to act as an expose when it comes to make-believe cases of being LGBTQ and third gender. Through my research paper, I want to aim at discrimination the third gender is suffering. Major Problems are still being faced by this section of society. In addition to this, I will also focus on the social and legal position of the third gender and LGBTQ.

Keywords:  Constitution, Equality, Fundamental Rights, Gender, Third Gender, LGBTQ, Transgender.

INDEX

S.NO.TOPIC
1INTRODUCTION
2OBJECTIVE
3HISTORY OF THIRD GENDER IN INDIA
4COMMON PREJUDICES AND MYTHS REGARDING LGBTQ
5LGBTQ RIGHTS IN INDIA
6LGBT: NO LONGER REVERED
8LEGALITY OF MARRIAGE
9CASE LAW
10CURRENT SITUATION OF THIRD GENDER
12POSITION IN OTHER COUNTRIES
13CONCLUSION
14.BIBLIOGRAPHY
  1. INTRODUCTION

Biological Design of Genitalia makes the conventional distinction of human gender into male and female and the people who do not fit into these custom and deny the biological binary are called “Third gender”. Third Gender means the gender other than the male and female. LGBTQ refers to those not include third gender but believes in that category. LGBTQ means person who like same gender person for example when men like men ,women like women. Third Gender and LGBTQ both are believed to be in the same category and thus the society discriminates them in the socirty.  However, In reality LGBTQ is a concept in which a individual is placed in such a category either by themselves or by the member of the society. These third gender and LGBTQ are sometimes considered under the category and called as Transgender. This term is not properly understood by general population.

Regional identities are used to represent the trans-community like hijras, aravani, jogtas and shiv-shaktis. The desire for a rigid definition, set the platform for the NLSA v. Union of India judgment which defined the term in the following words, a “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”. Thus, it can be said that the term, transgender is a blanket term used to refer to persons with identities that do not get along with the strict dual categories of man and woman and whose gender identity and expression differs from the conventional norms expected from their birth sex.

 In India, Third gender is not treated equally as compared to two other gender i.e, male and female. If the child other than the male and female is born in India or if men like men or women like women they are believed to be sin. They are sometimes thrown out of the house or sometimes killed. Though the Constitution under Article 14 and 15 gives equal right to all gender including third gender and also declared no prohibition of discrimination on the basis of sex but there is a discrimination to the third gender by our society. The first-ever study on the rights of transgender by National Human Rights commission said that 92% of transgender or LGBTQ are deprived of right to participate in any of economic activity in the country, with qualified ones refused jobs[1].

  1. OBJECTIVE OF RESEARCH PAPER

The objective of this Research paper is to look into the legal aspect of equality of LGBTQ into the society and to know where they in reality stand in the society.

  1. Research methodology

This research has been done from secondary resources of information which includes websites, books, journals, and blogs.

  1. HISTORY OF LGBTQ IN INDIA

The starting point of the concept of LGBTQ can be traced from the Hindu Mythology which has many examples of changing gender, manifesting as an Avatar of opposite sex etc. Indian Mythology stipulate that the transgender persons who are often denigrated today were once venerated and appreciated to a great extent. Gods were often considered to be represented as both male and female and who love the opposite sex gender but no option of same sex gender love is prescribed.

Mahabharata and Ramayana has the references to transgender people not the LGBTQ community. Shikhandi from Mahabharata is probably the most powerful transgender figure found in the Hindu mythology.

Another episode in the Mahabharata which witnesses the presence of third genders include the time when Arjuna was sent to exile. There, he assumed the identity of Brihandala, a eunuch and performed rituals during occasions of weddings and childbirths. Ramayana is another source inspiration for the emergence of transgender people..

Indeed, during the Mughal Empire (1526-1857), hijras and LGBTQ were known for positions held in Royal Courts as political advisors, administrators, generals as well as guardians of the harems. They even occupied high positions in the Islamic religious institutions and were also able to influence state decisions. Later, these benefits were removed through legislation in the British period[2].

  • COMMON PREJUDICES AND MYTHS REGARDING LGBTQ
  • Every LGBTQ person is a Hijra – People who insensitive and does not care about feeling of individual often use Hijra as a derogatory term to mock and abuse effeminate boys and  LGBTQ individuals. Most people in India don’t realize is that the hijra community is a socio-cultural community comprising of transgender people who may belong to India and even a few neighbouring countries. 
  • Trans People are incapable of doing significant jobs – In India when society came to know about LGBTQ person they have a different perspective they did not get the job in a company or firm.
  • Being the parent of LGBTQ – Society believes the marriage of only the two opposite gender not the marriage of LGBTQ i.e, same sex gender. When people come to know about the LGBTQ person the parents of that person are harassed by the society. They mentally become incapable[3].
  • LGBTQ RIGHTS IN INDIA

The first right they deserve is the right to equality under Article 14. Article15 speak about the prohibition of discrimination on the ground of religion, caste, sex ,race or place of birth. Article 21 ensure right to privacy and personal dignity to all citizens. Article 23 prohibit trafficking in human being as beggars and other similar forms of forced labor.
Right to equality is enumerated under the constitution which does not discriminates on the grounds of sex, caste, creed or religion. Every citizen has been given the political rights and other benefits too. But the LGBTQ were deprives of many right which they have been given under the constitution.

Protections under the Fundamental Rights mentioned under Constitution are available to all persons but some rights are being restricted to only citizens. No discrimination were made by constitution among rights holders beyond the categorization. But official identity papers provide civil personhood. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity may be a crucial and unavoidable category. The Indian state’s policy of recognizing only two opposite sexes made for each other and refusing same sex made for each other(LGBTQ), or as a third sex (if a hijra wants it), has deprived them at a stroke of several rights that Indian citizens deemgranted. Constitution includes many rights like the right to property, the right to vote, the right to marry, right to travel, the right to claim a formal identity through a passport and a card , a driver’s licence , the proper to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.

  • LGBTQ : NO LONGER REVERED

LGBTQ community living in the Indian society are discriminated in the workplace, job, public places. They did not get the opportunity to live in the society and grow in the society and for the Welfare of the society. There is a negative approach the LGBT community does not let them contribute in the society and making negative impact on their confidence and self respect.

The society does not give them our platform which they deserve. The LGBT community does not have a right to marry even we have seen Pandit doing the ritual of the marriage does not prefer to go in the LGBT community marriage Now after article 377 they have overcome certain situations and has given the right under the constitution but now also the proper implementation of the same has not done. They can marry each other openly.

  • LEGALITY OF MARRIAGE

Corbett v. Corbett was the first case to discuss marriage involving sex change. In this case, the Court held that notwithstanding the sex change, the respondent was still a male and marriage between males was void. Further, the principle used in the previous case was applied in the case of R v. Tan, where, it was held that post-operation of change of sex, a male still remains a man by law.                       

 In India, it is observed after further consideration that neither the Hindu Marriage Act nor the Special Marriage Act includes transgender people in their umbrella. Eunuchs are not protected under National Commission for Woman since they do not form a part of fairer sex. Section 2(c) of the National Commission for minorities which defines minority communities as Muslims, Christians, Sikhs, Buddhists does not cover transgender persons either. Interestingly, in the international legal order, there is silence on the status of the transgender in certain documents.

According to Hindu Marriage Act marriage between the two hijras is voidable means it can be valid depending upon the parties.

  1. Case Law

National Legal Services Authority v. Union of India[4] is a landmark decision by the Supreme Court of India, 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 judgment came as a major implication for the current laws related to marriage, adoption, labor laws, and inheritance which will now have to move away from the binary system of male and female to facilitate the legal rights of transgender persons.

Further, it is impossible to ignore the irony that the judgment was delivered only a few months after the case of Suresh Kumar Koushal and another v. NAZ Foundation and Others which upheld the constitutionality of Section 377 of the Indian Penal Code. The Court, accepting that Section 377 is discriminatory against transgender persons, clarified that the judgment leaves the Koushalcase uninterrupted and thus single-handedly focusing on the legal recognition of the trans-sexual community. One of the most innovative turn in the judgment was the involvement of fundamental rights directly from the Constitution, especially the application of Article 19, thus, acting as a bold motive in acknowledging the rights of a transgender being. regarding minorities, since they would qualify as a socially disadvantaged, backward class.

The remedies that the Court awards are also exceptionally fascinating. Three mandates have, as of now, been mentioned: that hijras are currently perceived as the third sex, that trans-persons have the privilege to pick between being male, female or having a place with the third gender, and that transperson are to be given benefits that are duly offered under governmental policies and should not be discriminated on their gender should be given all right which are mentioned under the constitution.

  • CURRENT SITUATION OF LGBTQ IN INDIA

In National Legal Services Authority v. Union of India Supreme Court by amendment of Indian constitution, has addressed transgender people as the third gender and it has created a special pulse over the nation. Due to this amendment third gender community will have their scheduled quota in job and educational institutions and will have the right to select their sex as a third gender. This amendment is significantly progress toward eliminating the discrimination these people face in general, which is not only inhuman but it is against humanity as well.

The Court declared that third gender includes transgender and addressed that the fundamental rights given or granted under the Constitution of India will be equally applicable to transgender people as they are the third gender, and have given them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step toward LGBTQ in India.

Moreover, it was also held that because transgender are included in socially and economically backward classes, they will be given reservations with regard to admissions in educational institutions and jobs.

  • POSITION IN OTHER COUNTRIES

Most of the countries including Germany has made rules for the LGBTQ community they can marry each other openly, they can live together in an open relationship. Many other countries saying the position of Germany has also taken this necessary steps for the welfare of their society. America also legalize the same sex marriage and made rules for the LGBTQ community so that there is no discrimination in the society for the LGBTQ community.

  • CONCLUSION

It is distinctly clear from the above observations that transgender individuals with different sexual orientation face intolerance, discrimination and exclusion in the society. This isolation varies from private reasons to the most common social incomprehension.

Judiciary has taken a significant step to remove the stigma attached to the third gender, it is our turn to recognize the true implication of this judgment and prioritize its enforcement. While throwing money at hijrasto spurn them away, we are not just insulting these individuals, but are relegating the very basic principle of humanity; even curs are better treated by the love of humanity. Such actions will only lead the transgender community to toil and struggle in the same quagmire of indignity that they have been facing for generations together. It is hence necessary to not only pen down laws, but also bring them to action for the upbringing of the transgender community to the basic rostrum of human dignity. 

  • BIBLIOGRAPHY

[1] LGBTQ COMMUNITY, http://www.culturetrip.com (last visited Oct 26, 2021).

[2] LGBT RIGHTS AND EQUALITY, https://www.vox.com (last visited Oct 26, 2021).

[3] LGBT RIGHT & MYHTS, http://www.vox.com (last visited Oct 27, 2021).

[4] National Legal Services Authority v. Union of India, https://caselaw.findlaw.com (last visited on Oct 28, 2021).

Author: Golam Zaky

Editor: Kanishka VaishSenior Editor, LexLife India

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