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Written by: Jhanvi Sharma
INTRODUCTION
The ancient history of our country provides various shreds of evidence of recognition of the third gender, yet it was not until 2011 that an official count of transgenders in India was revealed through a census for the first time. According to the census, approximately 4.88 Lakh Indians identified as transgender, but several activists estimated the count to be much higher. Despite a large population, the formal recognition of the third gender was done by the supreme court in 2014. This portrays the sheer sense of neglect the transgender community faced back in the time. Transgender people in India have always been socially marginalized, they face constant discrimination due to their gender identity, and innumerable cases related to mistreatment, cruelty, and violence faced by the people of the community are often neglected or dismissed.
VIOLENCE AGAINST TRANS PERSONS IN INDIA
HISTORY
The reason behind violence against the transgender community is largely due to the British colonization of India. Before colonization, the transgender community was much valued and respected, evidences of the same can be found in many ancient Hindu religious texts and writings from the Mughal era. Through colonization, the English government westernized the Indian culture and outlawed anything that went against the views of western society. Section 377 of the IPC was brought into effect in 1858 and this is where the concept of hate against the transgender community came into being.
CONTEMPORARY SCENARIO
Before the 2014 judgment[1], the Indian Laws only recognized two genders, that is, Male and female. This binary categorization created various hurdles for the third-gender people. Coupled with hate, violence, and cruelty, the transgender community also struggled with gaining employment and was even denied basic medical care.
Cases of gendered violence faced by the transgender community are several in number. They face various issues ranging from threats to security to dented health and economic services. A study named “Situation and Needs Assessment of Transgender People in Three Major Cities in India,” revealed that around 59% of the total respondents in the transgender community had experienced violence, the reports of violence were 57% in Delhi, 55% in Mumbai, and 70% in Bangalore. The violence, humiliation, and cruelty are not just limited to public spaces and workspaces, various surveys also revealed that most of the people belonging to the transgender community faced all of these issues at home too. Discrimination against transgenders even leads to restricted access to basic human rights and various trivial processes like obtaining an Identity card or passport and even opening a bank account. The people of this community face all of these issues despite various provisions available in the Indian constitution[2] that guarantee equality and protection like Article 14, 15, 16, 19, and 21, etc.
MAJOR JUDGEMENTS BY SUPREME COURT
● NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA[3]
In a 2013 judgement named Suresh Kumar Koushal vs Union of India[4] the LBGTQ+ rights took a hit when homosexuality was re-criminalised in India. After this, The NALSA judgement was passed in 2014 and it is considered as a victory in the history of the battle for the LGBTQ+ rights in our country. A two-judge bench consisting of Justice K. S. Radhakrishnan and Justice A. K. Sikri passed this landmark judgment where the Apex court held that the persons who don’t fall within the binary gender classification of male or female can be legally recognised as the Third gender. Because of this judgement, people from the transgender community were legally recognised as the third gender people and the binary classification of genders ended with this judgment.
The supreme court further stated that the Transgender people were entitled to the provisions given under the Indian constitution and the court also instructed the government to come up with a system to recognise the rights of such people. A comprehensive set of guidelines were laid down for the social welfare of the people who identify themselves as transgender.
● Arunkumar and Sreeja v. Inspector General of Registration and Others[5]
Arunkumar and Sreeja v. Inspector General of Registration is another path-breaking judgement for the LGBTQ+ community. Delivered by the Madras High Court, this judgment increased the scope of civil rights, relating to marriage, especially pertaining to transgenders. The court held that a marriage between a male and transwoman is valid under the Hindu Marriage Act, 1955, when properly solemnised. The bench also interpreted static terms like “bride”, etc. present in the Hindu Marriage Act, 1955 in an unconventional way, setting new standards regarding interpretation of statues.
SITUATION AFTER THE 2014 JUDGEMENT
The plight of the transgender community was reduced after the NALSA judgment. Various steps were administered by the centre and state government to reduce the prejudices that existed in the Indian society against the transgender community, the whole initiative was also aimed at generating public awareness among the masses. However, the judgments had its own shortcoming and it could not curb the hate crimes and cruelty against transgenders. In 2015, a detailed piece by The Human Rights Watch revealed several instances of discrimination and cruelty against the third gender by the police. Later, a study also revealed that the majority of the cases of violence against trans people were administered by police and other government officials. Much delay was noticed in following the orders given by the Apex Court following the NALSA judgment and several gaps in implementation created additional trouble.
CONCLUSION
The LGBTQ+ community, especially the trans people, have fought tirelessly for basic human rights for a long time and after long years of constant struggles and encountering various setbacks, they finally succeeded in gaining legal recognition. India as a country still needs to achieve much more when it comes to the rights and recognition of the Transgender community. The need of the hour is to identify the social and economic needs of the trans community, along with uprooting various social stigmas and practices which exist in this sphere. The transgender community has been marginalised for a long time and it is time to adopt a more inclusive approach when it comes to accepting them socially, economically, culturally, and politically.
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