Transgenders and the Indian law
This is a collection of articles archived for the excellence of their content. |
Contents |
Crime
2015-19: 76k transgenders held for extortion on trains
April 26, 2019: The Times of India
76k transgenders held for extortion on trains in 4 yrs
New Delhi:
At least 76,500 transgenders have been arrested for extorting money from passengers since 2015 till March this year, a senior railway ministry official said.
According to official data, during the current calendar year up to March, 4,118 transgenders have been arrested across all railway zones. The number of such accused arrested was maximum at 20,566 during during 2018 followed by 19,800 in 2016.
“Both the Railway Police Force and the Government Railway Police have acted against such offenders to ensure the passengers are not harassed by such elements,” said another ministry official. It’s a regular affair on many trains as some transgenders board between specific sectors and misbehave with passengers if they refuse to pay cash. TNN
Official recognition
Transgenders are a third gender: SC
Supreme Court recognizes transgenders as 'third gender'
Dhananjay Mahapatra,TNN | Apr 15, 2014
NEW DELHI: In a landmark judgment, the Supreme Court on Tuesday created the "third gender" status for hijras or transgenders. Earlier, they were forced to write male or female against their gender.
The SC asked the Centre to treat transgender as socially and economically backward.
The apex court said that transgenders will be allowed admission in educational institutions and given employment on the basis that they belonged to the third gender category.
The SC said absence of law recognizing hijras as third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.
This is for the first time that the third gender has got a formal recognition. The third gender people will be considered as OBCs, the SC said.
The SC said they will be given educational and employment reservation as OBCs.
The apex court also said states and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.
The SC said the states must construct special public toilets and departments to look into their special medical issues.
The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and can not be discriminated.
The apex court expressed concern over transgenders being harasssed and discriminated in the society and passed a slew of directions for their social welfare.
The apex court said that trangenders were respected earlier in the society but situation has changed and they now face discrimination and harassment.
It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.
The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term 'transgender'.
The bench said they are part and parcel of the society and the government must take steps to bring them in the main stream of society.
The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to give separate identity to transgenders by recognising them as third category of gender.
Five highlights of the SC’s order
Third gender: Top 5 reasons why Supreme Court order is a milestone in transgender people's struggle for identity
Arun Janardhanan,TNN | Apr 17, 2014 The Times of India
The Supreme Court order recognizing the 'third gender' is a turning point in the struggles of transgender people and other sexual minorities in the country, says L Ramakrishnan, country manager of the Solidarity and Action Against The HIV Infection in India (SAATHII), a collective of non-government organizations, and a senior organizer of the Tamil Nadu Rainbow Coalition.
In a conversation with The Times of India, Ramakrishnan says this would eventually improve the social and economic status of the LGBTs (lesbian, gay, bisexual and transgender).
He highlights five points that make it a landmark order.
The right to choose gender
Transgender falls primarily under two categories. They are, some who are born male and live the life of a female; and others who are born female, but live the life of a male.
Apart from an Aadhaar card and a few other government documents, there were no options to declare a 'third gender.' The SC order, reiterating that the gender identity is a right to be determined solely by that person, has now given three options.
For a transgender filling up an application form, the right of choice may be any of the three genders (male / female/ the third gender).
Improving the social status
The Supreme Court order ensures reservation for the third gender under the OBC category to pursue education or for any government employment schemes.
As it does for backward communities, this reservation would play a crucial role in improving their social status. Presently a large number of sexual minorities in the country are forced into sex work and denied a dignified place in their families and workplaces.
Chennai-based Sahodaran, an organization for transgender people, estimates that almost 75% of over 1,000 transgender people in the city are forced to do sex work for livelihood) .
Sexual orientation to be protected
The decision to create a third gender and recognize it officially would also benefit other sexual minorities such as lesbians, homosexuals and bisexuals.
The SC order clarifies that not only the gender identity but the sexual orientation of individuals will also be protected.
Goodbye to sex reassignment surgery
With this order, one doesn't have to undergo a sex reassignment surgery to prove his or her gender.
The desire to imitate or to pass for the other sex is often crucial in the identity of a transgender. The government of Tamil Nadu, a pioneer in implementing several progressive and social welfare health programmes for transgender community, also conducts free sex reassignment surgeries in its hospitals.
Greater social acceptance
The order could pave way to breaking down of barriers of social, legal and gender discrimination, and the sexual minorities would gain a greater acceptance. Issues such as denial of admissions to schools, colleges and employment opportunities in the private sector would be addressed by creating awareness on the rights of sexual minorities on the strength of the SC order.
While a majority of the private sector companies remain indifferent to the above minorities' populace, IBM, Goldman Sachs and Google have taken measures to address the needs of LGBT employees as part of making the workplace more inclusive.
Transwoman are women
Hindu bride' also includes transwoman: HC
Srikkanth D, April 23, 2019: The Times of India
'Hindu bride' also includes transwoman: Madras high court
MADURAI: In a path-breaking ruling, the Madras high court held that the term ‘bride’ as per the Hindu Marriage Act would also mean a transsexual, and not just refer to someone born as a woman. The court also ordered the state government to issue an order banning sex reassignment surgeries on inter-sex infants and children.
Justice GR Swaminathan, quoting from the Supreme Court judgments and epics Ramayana and Mahabharata, said the expression ‘bride’ in the Hindu Marriage Act could not have a static or immutable meaning. Holding that the expression ‘bride’ would have to include not only a woman, but also a transwoman, the judge directed the authorities to register a marriage between Arun Kumar and Sreeja, a transwoman. The couple had moved the court after the registration department refused to register their marriage, held on October 31 at a temple in Tuticorin, and issue a certificate.
Justice Swaminathan also rejected the government’s contention that the registrar of marriages had powers to refuse registration as the couple did not meet the statutory requirement of the Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a ‘woman on her wedding day.’
‘Intersex child entitled to stay with family’
In this regard, the judge referred to landmark judgment by the Supreme Court, which upheld transgender persons’ right to decide their self-identified gender.
Taking into account the stigma the transgender people battle and the ordeal they undergo after being forced to leave their homes, Justice Swaminathan directed the Tamil Nadu government to issue a GO banning sex reassignment surgeries on intersex infants and children.
He held that it was the responsibility of the government to launch sustained awareness campaigns so that parents were encouraged to feel that the birth of an intersex child was not a matter of embarrassment or shame.
“Any intersex child is entitled to stay within the folds of its family. The running away to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from margins to the mainstream,” Justice Swaminathan observed.
As for the present case, the judge said that since they were also an inter-caste couple they were eligible for financial incentive under the Dr BR Ambedkar scheme for social integration through inter-caste marriages.
State directed to issue a GO banning sex reassignment surgeries on intersex infants and children.
2018/ and PAN forms get separate column for transgenders
PAN forms get separate column for transgenders, April 11, 2018: The Times of India
Tincome he Centre tax has rules amended to allow the transgenders to be recognised as a category for obtaining PAN. The notification was issued and now the PAN card form will have three columns linked to gender for applicants — male, female and transgender.
Tax department sources said the column has been added as they were finding it difficult to link their PAN card with Aadhaar. While Aadhaar has a column for transgender, the application form for a PAN card did not have one.
Forcible medical examination of gender a gross violation of the right to privacy: HC
Cops find cop a transgender, court asks reinstatement as woman
A Subramani,TNN | Apr 18, 2014 The Times of India
CHENNAI: A couple of days after the Supreme Court accorded legal status to members of third sex as 'transgenders,' the Madras high court on Thursday asked the Tamil Nadu government to let a person dubbed as a transgender after medical examination continue in service as a woman police constable.
The judge said compelling an individual to undergo medical examination and medically declare her/him as a 'transgender' is a grave violation of fundamental rights. "By compelling an individual, who has been recognised all through as a female, to undergo medical examination so as to declare her as a transsexual will be a gross violation of the right to privacy," Justice S Nagamuthu said.
Beneficiary of the high court order would be a woman, whom the court preferred to identify as 'Nangai', who was selected as a woman constable, only to be thrown out of the force after being subjected to several rounds of medical examination and being branded as a 'transgender'. Thanks to the judgment, Nangai shall now be absorbed back in the force as woman police constable with continuity of service from January 2011.
Nangai was born a girl in 1989, studied in a girls' school, competed as a girl and was selected as woman police constable in January 2011. But in March 2011 she was asked to undergo medical check-up where she was classified as a transgender. She was made to go through several more endocrinological and chromosomal studies for biological sex evaluation, before being branded 'transgender.'
She was then removed from service for having failed to disclose that she was a 'transgender' and for having availed herself of the reservation benefits meant only for women. Her absence from training owing to the continuous medical tests too was cited as reasons for her removal.
Justice Nagamuthu, slamming the authorities for having undertaken a roving probe into her sexuality, said: "Treating Nangai as not a female on the basis of medical declaration that she is a transsexual and forcing her to accept the said sexual identity will surely be an infringement of the rights guaranteed in the Constitution."
Pointing out that Nangai had always maintained that she was a woman, the judge said: "Nangai has declared her gender identity only as 'female' notwithstanding the declaration made by the medical community that she is a transgender. Her sexual identity as female by birth, and recognised by society and her own self-identity as female, should be recognised by the government."
Justice Nagamuthu then declared that Nangai should be treated as a female for all purposes such as employment and property rights, and said, "unless laws are made recognising this female-to-male (FTM) as third genders providing certain special rights, such identification by the individual as third gender will not be beneficial to her."
Mere medical declaration of a person as a transgender cannot keep an individual out of the binary classification of sex, the judge said, adding that in the absence of adequate legislation to protect their interests, the legal community would treat such people only by the sexual identity given to them by birth and recognised by the society, irrespective of the medical, psychological, genetic and other scientific communities.
If Nangai's sexuality is to be determined only on the basis of medical examination, then the same yardstick should be applied on everyone for entry of sex details in birth register, for employment and election, Justice Nagamuthu said. Cautioning that such a practice would create chaos in society, he said: "No court, to my knowledge, had ever sent any individual for medical examination to determine the sex of the said individual."
The judge had requisitioned the services of senior advocate K M Vijayan, and additional solicitor-general of India and senior advocate P Wilson to act as amicus curiae and assist the court.
Quota for transgenders won't cover gays, lesbians: SC
The Times of India, Jul 01 2016
Dhananjay Mahapatra
The Supreme Court paved the way for implementation of its two-year-old judgment directing inclusion of transgenders within the Other Backward Class (OBC) for the purpose of reservation by clarifying to the Centre that the community would not include lesbians, gays and bisexuals. Though the judgment was delivered on April 15, 2014, the NDA government in July 2014 had moved an application seeking clarification whether the term `transgender' included lesbians, gays and bisexuals.
Additional solicitor general Maninder Singh told a bench headed by Justice A K Sikri that though there was clarification in the judg cation mentioned in the original judgment.
This means transgenders across India will now be legally entitled to write `third gender' as their sex and not male or female.
They will also be entitled to reservation in admissions to government educational institutions and employment as part of the OBC group.
In 2014, the SC had said absence of a law recognizing `hijras' as third gender could not be ground to discriminate against them in availing equal opportunities in education and employment. This was the first time that the third gender got formal legal recognition. People belonging to the third gender would now be considered as OBCs, the SC had said, entitling them to reservation. ment itself that for the purpose of reservation, the term transgender would include `hijras' (eunuchs), a small discussion about the definition of the term in the judgment had created confusion in some quarters.
The 2014 judgment had said `transgender' had come to be known as an umbrella term which included gays, lesbians, bisexuals and cross-dressers within its scope. However, it had clarified that for the purpose of the judgment, the term would include only `hijras', `kothis', `shivshaktis', `aravanis' and `jogtasjogappas'.
The Justice Sikri-headed bench, which had earlier warned that it would impose cost on the Centre for filing a “mindless application“ seeking clarification, was persuaded by Singh to dispose of the application by noting the self-explanatory clarification.
Legal rights
NCC: Transpersons can join
March 16, 2021: The Times of India
Transperson can join NCC, amend law: Kerala HC
Kochi:
The Kerala high court has ordered that a transgender person be allowed to join National Cadet Corps and has also directed that the law be amended to include transgenders in the NCC.
Justice Anu Sivaraman issued the directive after considering a petition filed by Hina Haneefa, a student of University College in Thiruvananthapuram. The court said the fact that the NCC Act does not recognise the third gender or that detailed guidelines are yet to be introduced for the integration of persons of the third gender into NCC can’t be justification to deny the petitioner entry. TNN
‘Petitioner entitled to be enrolled if successful’
Ruling that denial of enrolment in the NCC in this case is unsustainable, the court said the petitioner is entitled to participate in the selection process and to be enrolled if successful.
The court pointed out that the Transgender Persons (Protection of Rights) Act, 2019 recognises the right of transgenders to a life of dignity and prohibits discrimination against them. Provisions of NCC Act can’t preclude the operation of the law on transgender rights, it said. A transgender has not only the right to be recognised as a transgender but also the right to self-perceived gender identity as per law, the court noted.
Right to inherit agricultural land in UP/ 2020
Transgenders get right to inherit agri land in UP, August 20, 2020: The Times of India
Transgender people in Uttar Pradesh can now inherit ancestral agricultural land under a new law that has come into force after the Yogi Adityanath cabinet cleared an amendment to the UP Revenue Code of 2006, removing the limitations of nomenclature in inheritance laws that only mention “sons”, “daughters”, “married”, “unmarried” and “widow”.
The proposal for a law acknowledging the inheritance rights of the “third gender”, as recognised by the Supreme Court, had been submitted by the State Law Commission to CM Adityanath in March 2019.
Commission chairperson Justice AN Mittal had pointed out that all inheritance laws leave out the third gender, who as it face social ostracism despite measures to protect them.
Cabinet: Move will give social recognition to third gender
In the UP Revenue Code (Amendment) Act, 2020, changes have been made to sections 4(10), 108 (2), 109 and 110 to include people of the third gender as members of a landowner’s family to give them succession and physical rights to the property. This will also accord equal rights and social recognition to the community, the cabinet note says.
Among other changes made to the code are amendments to Section 59 (4), in which unreserved land can be earmarked for community use, such as a playground, grazing pasture and cremation ground. The remaining land can be returned to the gram sabha.
Under the same section, another amendment makes it possible to denotify previously acquired land.
Under Section 60 (2), a provision has been inserted for creation of temporary tin sheds on grazing grounds for amenities such as tubewells and feeding troughs.
Social security
Monthly pensions in Odisha/ 2020
Odisha to give monthly pension to transgenders, July 5, 2020: The Times of India
Bhubaneswar:
The Odisha government has decided to include members of the transgender community in a social welfare scheme which provides a monthly pension to the needy, a minister said.
CM Naveen Patnaik has approved a proposal to cover the members of the community under the Madhu Babu Pension Yojana (MBPY) which aims at providing financial assistance to the destitute elderly, differently-abled persons and widows, he said.
Around 5,000 transgenders will get a monthly pension in between Rs 500 and Rs 900 depending on their age, social security and empowerment of persons with disabilities minister Ashok Panda said. PTI
