Transgender demanding equal protection against sexual crimes: In the context of recent PIL in SC


Introduction

Transgender are the people who identify their gender different from the sex they are assigned at their birth. Transsexual people are the ones who undergo surgeries and take medical aid to transit from one gender to another. The concept of feeling misaligned with the gender assigned at birth with their gender identity causes gender dysphoria. Transgender being an independent sexual orientation have not been recognized as well as respected by society.

The 2014 verdict on transgender people have given them recognition as “persons’ under Article 14 of the Constitution of India but there is still no protection given to them against the offences being committed.


Background

Transgender people have always been considered the abnormal part of the society. Trans people are treated harshly and they have been openly criticized and made fun of their sexual orientation and sexual choices. There have been plenty of assaults happening to them almost every other day but still, there is no protection given to them as there are no appropriate laws for their safety. Due to the conservative mindset of the people, they have still not accepted the very existence of transgender people. This is why; their own families have distanced themselves and abandoned them. But the truth is that the trans people are so brave and strong that they have identified and recognized themselves and have come forward with their identity very proudly. They are equally capable of achieving what any man and a woman can.


Their existence in society can be observed for a very long time. They have been given important decision-making posts in Mughal era. Our Indian civilization has accepted the existence of transgender since hundreds of years, but it was the British rule that considered transgender as “other” part of the society. Existence of Shikhandi, an integral part of Mahabharat, was born as a woman but later changed her identity as a man. These things were a part of our culture and until the Colonial rule was established. Under the British law, transgender were considered as criminals while some managed to make a living by either turning to begging or prostitution. The trans people have played important role in our history. It is in 2014, that their existence has been legally recognized.


In 2014, the Supreme Court of India in its landmark judgment in National Legal Services Authority v. Union of India declared transgender as the “third gender” and recognized them as “persons” which gave them the access to exercise their Fundamental Rights given in the Indian Constitution. After years of struggle and discrimination faced by them from the society, they were legally recognized. It was imagined that at least now they will be treated equally and respected by the society.

As the transgender community is considered to be economically as well as socially backward, they will be awarded with reservations in educational sector and job opportunities. It was directed to create awareness through social media platforms and demolishing the stigma around the trans community.


But the truth is, they have been used for the political benefits. It is the hypocrisy of some political leaders who use transgender people as their agenda to get votes from the general public but does nothing in order to protect and safeguard them. The Transgender Right Bill, 2014 was deformed. Some clauses of the bill were considered complicated and impractical which is why it was requested to withdraw the bill. The bill was asked to withdraw also because it would have put too much burden on the government. This bill created history as for the first time in four decades that the Rajya Sabha has passed a private member’s bill.

This community has received utmost humility and disrespect from those around them. They are discriminated and are subjected to inappropriate behavior even in their own families, schools, colleges and work places. They even have to quit their jobs due to non-cooperation from their colleagues and continuous humiliation. One such story is of Manobi Bandopadhyay who is India’s First Transgender College Principal which testifies absolute resistance from the society due to her being a transgender. She was born as a son to her parents and was bullied almost her entire life. She had fought a battle against ignorance and discrimination.


Issue

Transgender people apart from facing discrimination and humiliation have also been subjected to sexual assault. The level of abuse against a transgender is relatively higher as there is no law punishing the offenders. As a consequence, most of them are living under trauma and fear of being victimized to assault repeatedly. It is seen that the transgender people are abused more by those in power. The transgender are physically assaulted by the police officers when being in jail or custody. There is no security provided to them and no provision as to having separate wards. While others have been subjected to assault by the medical professionals.


Analysis

There is no law that binds on these people for the offences being committed by them. A recent PIL has been filed in the Supreme Court by Reepak Kansal which talks about the absence of penal laws for the people committing sexual abuse against the third gender. By the recognition of transgender people as “persons” in 2014 verdict under Article 14 of the Constitution of India, they are still not provided any protection. The Fundamental Rights awarded to them are not safeguarded as there are no laws protecting the same. Hence, the legal acceptance of transgender people seems hollow. There is a wide gap between the laws and their implementation. The petitioner also challenged the constitutional validity of Section 354 of the Indian Penal Code, 1860 which is outraging the modesty of a woman and Section 354A of the IPC which is sexual harassment and its punishment.

There are no amendments which talks about physical abuse or sexual harassment against the transgender community. Right to equality, right to life and personal liberty, right against discrimination and right live with respect and dignity have been violated under Article 14, Article 15 and Article 21 of the Constitution of India. Their Fundamental Rights are being revoked. He also asked for gender neutral laws specifically for sexual harassment with effective implementation along with passing of Anti-Discriminatory Bill which will protect the transgender community.


Conclusion 

The need is to bring a change in our outlook towards life along with accepting how others perceive it. We should normalize the existence of transgender community and treat them with respect and dignity. Along with this, the Indian Education System should also be changed and the students should be taught about transgender people and how they should not be looked upon differently or considering them as the abnormal parts of the society. There should be sensitization towards the trans people in home, schools/colleges and work place to promote their safety and protecting their rights. When we end inequality, it would help us to establish a surrounding where the transgender community is treated equally and hence the amount of physical abuse they experience would also reduced. They are often threatened by their partners that their identity would be revealed and are subjected to mental and physical abuse. They experience harassment in every step of their life. To help them with this, the government should make strict laws in order to prevent their exploitation and also ensure that the laws are effectively implemented. Local organizations should also be established so that it is convenient for them to seek help and report on happening of any such abuse. There is a need to create awareness community education and awareness events.


Everyone has a right to live their life on their own terms with respect and dignity and the transgender community should not be an exception to this.

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