Breaking boundaries – Transgender's rights and challenges

Momota Oinam *

Trans-Gender (Nupi Manbi) Community of Manipur at work in Imphal in March 2013 :: Pix - Deepak Oinam

Overcoming severe challenges, Bishesh Huirem will become the first transgender from Manipur to represent India at the Miss International Queen 2016 in Thailand in November this year. One newspaper item aptly described the development as "absolute confidence in coming to terms with her sexuality in a society that was not willing to accept her on her own terms".

Nonetheless, Bishesh Huirem reportedly had to slug it out, which only underlines deep societal malice and strength of human resilience, despite odds. While many transgenders have strongly come out of shackles of social prejudice &extreme discrimination, the community as a whole still continues to live in the shadow of alienation, ridicule & abuse. Whether they are on leiraks/leikais of Manipur or streets of Delhi, their vulnerability remains intact; difference, if any, could perhaps be only in degrees.

Needless to say, it is increasingly accepted that transgenders' problems are mostly basic human rights issues and certainly not social or medical issue, as attempted to be made out to be in the past. Though this paradigm shift is visible over the years thanks to human rights groups and LGBT activists, our society has not kept pace with this shift and transgenders still continue to be excluded from the mainstream social life.

Fortunately, law is evolving and catching up fast with legal recognition & protection and Courts are invariably interpreting constitutional provisions for ensuring dignity of the transgender community.

In the landmark NALSA judgment*, the Supreme Court held that privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Indian Constitution and the State is bound to protect and recognize those rights. The judgment identifies transgenders as those whose gender identity, gender expression or behaviour does not conform to their biological sex and include hijras/eunuchs.

The NALSA judgment declares hijras, eunuchs, apart from binary gender, as the 'third gender' for the purpose of safeguarding fundamental rights under the Indian Constitution and other relevant laws. Most significantly, this judgment upholds transgenders' right to decide their self-identified gender such as male, female or a third gender; and directed the Centre and State Governments to grant legal recognition of such gender identities. Recognition of transgender as the 'third gender' guarantees transgenders' rights of equality under Article 14 and all other rights including but not limited to rights guaranteed under Article 21 of the Constitution viz right to vote, eligibility for driving license, right to education, right to employment etc.

Considered a historical judgment for transgenders, the NALSA judgment provides for comprehensive entitlements & benefits to transgenders with Governments to take steps to treat them as 'socially and educationally backward classes', extend reservation for admission in educational institutions and in public appointments, frame welfare schemes, take proper steps for medical care, create awareness to bring transgenders to mainstream social life without any discrimination whatsoever.

In the context of Manipur, the Government recently constituted the Manipur Transgender Welfare Board to act as a single window for the community and facilitate them in accessing social welfare schemes and other privileges.

The above position and constitutional guarantee of equality nonetheless, transgenders still remain extremely vulnerable to harassment, violence and sexual assault, even by the police. The Transgender Persons (Protection of Rights) Bill, 2016 (recently introduced in the Lok Sabha) proposes imprisonment up to two years (with fine) for offences including forceful expulsion of transgenders from their houses/villages, denial of access to public place, any harm/injury affecting their physical/mental wellbeing or incitement for begging or similar forms of bonded labour and other forms of atrocity and violence.

Another shot in the arm for the transgenders is the Supreme Court's reference to a five-judge Constitution Bench of a batch of Curative Petitions against Section 377 of Indian Penal Code (IPC) – a colonial era provision criminalizing consensual sexual acts of LGBT adults (which include transgenders).

As reflected in the NALSA judgment, society's reluctance to embrace different gender identities needs to be addressed, a mindset change being paramount for social cohesion of the community with mainstream society. Undoubtedly, such a change would definitely involve multiple approaches. One way, perhaps, may be to look at the issue with empathy.

For once, we may like to see the world through the eyes of a transgender and feel & realize her/his pain, agony and trauma, with no fault on her/his part and certainly not by her/his choice. Moreover, those of us who have experienced some sort of prejudice (perceived or otherwise) on account of our looks etc. at some point in our lives may possibly be one way of understanding the issue better.

Of course, the context or situation can neither be the same nor be compared, but that abject sense of self-worthlessness and low self-esteem cannot be any different. And this gives us the impetus to support and work for social assimilation of transgenders to restore their self-dignity and self-preservation.

India is a growing economy under active process for global integration with international commitments& obligations qua basic human rights through appropriate legislations. In the absence of local laws, Courts will also continue to adopt/refer to principles of international covenants & treatises on basic human rights, to ensure protection of self-dignity for the weaker & marginalized sections of society including transgenders.

But all these endeavours would be fruitful and a real breakthrough on ground can take place only when the mindset of the society changes to embrace transgenders and make them comfortable in their own skin in living a life of dignity and self-esteem. And this is where we all come in.

* National Legal Services Authority Vs. Union of India decided on 15-04-2014