Equality and the Third Gender

History

The history of our country has recognized the presence of the third gender in the society through epics like Mahabharata but people belonging to these categories are not yet completely accepted by society. Even today, an individual suffers for being born as a third gender.

Initially, neither the legislature nor the judiciary recognized the third gender or incorporate any provisions for their enlistment. These institutions have always remained ignorant of the rights of the LGBTQ+ community. LGBTQ+ stands for lesbian, gay, bisexual, transgender, and queer.

In the absence of proper legislation and social exclusions, people belonging to these communities were also deprived of their basic human rights as well as fundamental rights provided by the Constitution of India. However, in 2014 the National Legal Services India filed a petition in the apex court to recognize those persons who neither fall in the category of men nor the category of women. The major issues in the following case were whether persons who do not fall in the category of man or woman can be considered as the third gender and whether non-recognition of such gender is a violation of fundamental rights enshrined within the Constitution of India. 

National Legal Services India v. Union of India

was the first judicial pronouncement which not just recognized the third gender but also discussed the concept of gender identity at length. In this landmark judgment, the apex court held that such individuals who are neither categorized as men nor as women are to be considered as the third gender. Further, the court observed that this category of the third gender is entitled to all the rights available incorporated within the Constitution of India and International law.

This judicial pronouncement has made an effort to recognize the third gender and provide them basic human and fundamental rights that they are entitled to. This effort of the judiciary was much appreciated and further lead to another milestone for the people of the LGBTQ+ community. This milestone was decriminalizing homosexuality and providing the third gender an opportunity for equality. The following case has been discussed below:

Navtej Singh Johar v. Union of India

The candidate in the current case recorded a written request in the Hon'ble Supreme Court and tested the protected legitimacy of Sec. 377 IPC for being violative of Art. 14, 15, 19(1)(a) and 21 of the Constitution of India. A 5-judge seat of the pinnacle court collectively pronounced Sec 377 of the Indian Penal Code as Unconstitutional for the explanation of them being violative of the previously mentioned arrangements of the Constitution of India.

The court saw that the language of the arrangement doesn't make any sensible order in normal and unnatural sexual demonstrations making it outside the domain of sensible grouping under Art.14. The court additionally set out that separating a portion of individuals based on their sexual direction likewise makes this arrangement violative of Art.15 of the Constitution of India.

This judgment had set a new benchmark in the advancement of the idea of uniformity in India.The LGBTQ+ people group faces provocation because of social rejection consistently.

However, after the milestone choices of the peak court in both the cases, even the lawmaking body felt the need of presenting an enactment that could tie down the privileges of such individuals having a place with the transsexual local area. In this way, in 2019, the governing body presented the Transgender Persons (Protection of Rights) Act, 2019.

Sec 2(k) of the act defines a transgender person as a person whose gender is not assigned at the time of birth. The Act not just recognized transgender persons but also incorporated provisions related to their education, employment, healthcare facilities, access to public offices, and holding and disposing of properties.

The enforcement of this legislation can be said to be another turning point in the lives of transgender communities. This legislation provides all those basic rights to the community of which they were deprived from ages. The exclusion of these members in society was not just in the social aspect but in the legal aspect as well. But now with the incorporation of legal provisions for the protection of transgender, a hope for their enlistment can be witnessed.

A ray of hope for Transgender

The two landmark decisions of the apex court of the country, i.e. NALSA case and decriminalization of homosexuality have paved a path of the third gender and provided them the opportunity to independently perceive their gender. The enactment of the Transgender Persons (Protection of Rights) Act, 2019 was a step closer to their recognition in society. This act provides the entitlement to the third gender of all the basic requirements like education, employment, health services, property, access to places open to the general public, etc.

The legislation ensures the dwelling facility to a transgender at a shelter house if the family of such transgender refuses to accept him. It also lays down the provision for the certificate for identification as a transgender. The legislation further entrusted the responsibility to the appropriate government to take the pertinent measures for the welfare of transgender people. Apart from this the legislation also lays down punishments for certain acts that may be construed as an offense against transgender. Such offenses shall be punishable with imprisonment of 6 months that may extend up to 2 years and a fine.

Further, the legislation also established a National Council for Transgender People. The primary work done by the council shall be to address the issues of transgender people. It shall also direct both the central as well as state governments to keep a check on all the policies and laws made for the welfare of the transgender.