Sonica Aron, Founder and Managing Partner, Marching Sheep

An XLRI post graduate, Sonica has worked with companies like Pepsico, Vodafone, Roche Diagnostics and ICI paints. She started her career with a sound understanding of business where she went route-riding with Pepsico and was part of the team that launched Pepsi 200 ml at Rs 5. She was the first lady HR Manager stationed at a factory in Upcountry UP and there the seeds to her diversity practice were born.

International Transgender Day of Visibility (TDoV) is a day observed every year on 31st March and this year will mark the 12th International TDoV. Globally, this dayis dedicated to celebrate and acknowledge the strength and courage of transgenderand non-binary/gender nonconforming people living openly and authentically whileadvocating andraising awareness of transgender rights.

TDoV was founded by US-based transgender activist Rachel Crandall of Michiganin 2009. Crandall was inspired by the fact that there was no day in existence dedicated to honoring the achievements and contributions of transgender people. 

The idea here is to bring to our awareness that there are a number of people even today who feel invisible in their own communities and may live every day with fear of discrimination or violence. Visibility is core to develop a culture and working environment that is inclusive in nature;normalizing spaces for the transgenders just like the rest of the people.

This day has been designated for the transgender people to show simply that it is normal to be transgender though time and again many of them have highlighted the fact that it is far from easy being a transgender – not everyone is lucky enough to avoid discrimination, violence, abuse and not everybody has their families standing by them. Some people have lost their partners, friends, homes and even jobs. Not surprisingly, the problems faced by transgender people inevitably leads to mental health issues such as anxiety, depression, isolation – sadly, in some scenarios, even self-harm.

Transgender Community in India

Transgender persons face various forms of gendered violence, harassment and discrimination both at home and in public spaces. A study by Humsafar Trust titled, “Situation and Needs Assessment of Transgender People in Three Major Cities in India,” carried out in Delhi, Mumbai, and Bangalore, over the period between June 2017 and March 2018, found that around 59 percent of respondents in the transgender community had experienced violence: 57 percent in Delhi, 55 percent in Mumbai, and 70 percent in Bangalore. Across these three cities, ones’ own family and relatives were often perpetrators (22 percent), followed by the common public, which is responsible for 21 percent of the cases of violence committed against transgender people. (The Diplomat, 2020)

There is a widespread lack of understanding of transgender issues and gender identity that are at the heart of transphobic attitudes. Transgender community is a marginalised community in our country because they do not fit into the general categories of binary gender definitions of ‘male’ or ‘female’. Consequently, they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on. Though a number of efforts have been made to improve conditions on ground,yet we are far from reality in understanding the gravity of human rights violations people belonging to the transgender community face on a daily basis.

Indian census had never recognized third gender i.e., Transgender while collecting census data for years. It was only in 2011 where for the first-time data of Transgender’s were collected with details related to their employment, Literacy and Caste. The first count of third gender in census recorded – 4.88Lakh andof the total number of transgenders identified by the census, almost 55,000 were in the age group of 0-6 population.This came as a big surprise to the community as they did not expect so many parents to identify their children as belonging to third gender. Over 66% of the population identified as third gender lived in rural areas. The census data also revealed the low literacy level in the community, just 46%, compared to 76% literacy in the general population. 

Transitioning is a widely misunderstood concept, where only medical transition is seen as a legitimate form of transitioning. This belief is also what shaped the Transgender Persons (Protection of Rights) Bill, 2018, that required transgender people to be ‘certified’ by the district magistrate to have their identity recognised and to show documentation proof of SRS (sexual reassignment surgery) and other medical interventions to have their gender changed in legal documents.

Later, the Transgender Persons (Protection of Rights) Act, 2019 an Act of the Parliament of India was enacted with the main purpose of safeguarding the rights of transgender people, their welfare, and other matters related to them. 

What is the definition of a transgender person according to the transgender persons (Protection of Rights) Act, 2019?

According to this Bill, a transgender person is one whose gender does not match the gender of a person assigned at birth. Trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as ‘kinnar’ and ‘hijra’are included in this Bill. 

On what grounds a Transgender person can’t be discriminated from others?

No person or establishment shall discriminate against a transgender person, including denial of service or unfair treatment in relation to:

  1. Education
  2. Employment or occupation
  3. Healthcare
  4. Access to, or enjoyment of goods and services, facilities, or opportunity which is made available to the general public
  5. Right to movement
  6. Right to reside, rent, or otherwise occupy the property,
  7. Opportunity to stand for or hold public or private office
  8. Access to a government or private establishment in whose care or custody a transgender person is.

Can a Transgender person apply for a certificate of identity?

Yes, a transgender person can apply for a certificate of identity as a transgender person by writing an application to the District Magistrate, in any form and manner accompanied by required documents, as may be prescribed.  In the case of a minor child, the application may be made by a parent or guardian of such child.

Can a Transgender person undergo surgery to change gender either as male or female?

If a Transgender person undergoes surgery to change gender either as a male or female, such person has to make an application, besides a certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery. The application along with the certificate issued is presented to the District Magistrate for a revised certificate.

On being satisfied with the receipt of the application and with the certificate issued by the Medical Superintendent or Chief Medical Officer, the District Magistrate may issue a certificate indicating the change in gender.

The person to whom the revised certificate has been issued shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person according to the gender issued in the revised certificate.

Where does the Transgender fall short?

The Trans Act 2019 was supposed to be the culmination of the community’s long drawn efforts to get legal sanction for its rights. But the Act has actually removed many of the gains the community had achieved in the NALSA (National Legal Services Authority) judgment in 2014. 

Judgment delivered in the NALSA Vs Union of India case in 2014, the Supreme Court bench had called for legislation to safeguard the rights of transgender persons. The bench said: “Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.”

The 2019 Act gives the district magistrate (DM) the power to recognise a person as trans, while the NALSA judgment allowed self -identification of gender. The NALSA judgment had further said that any insistence on SRS (sex reconstruction surgery) was immoral and illegal. It stressed that self-determination of gender is integral to one’s personality and dignity. However, the 2019 Act specifies that to identify as male or as female, one must supply proof of surgery to the magistrate. Activists say this gives power to the DM, leading to the possibility of arbitrariness and misuse.

The 2019 Act also institutionalises legal discrimination by making punishment for sexual abuse against transgenders imprisonment of “not less than six months but which may extend to two years and with fine.” This is much less than the punishment for rape against women under the Indian Penal Code (IPC), which is imprisonment of “not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine.”

Furthermore, the 2019 Act which was purportedly enacted to eliminate discrimination against transgender persons by other persons or establishments does not prescribe a punishment for discrimination. It states that if the immediate family is unable to care for a transgender person, the person could be placed in a rehabilitation centre after an order from a competent court. This violates Article 21 of the constitution, which guarantees the right to life and dignity. The 2019 Act fails to recognise that transgender persons are capable of making their own decisions.

The Act also violates the NALSA judgment by failing to provide reservations in admissions to educational institutions and public appointments by treating the transgender community as socially and educationally backward classes of citizens. Only one section is devoted to welfare, but there is no list of specific ways in which welfare benefits must be provided and no word about reservations and other form of benefits. The rules only hover around the identity question, not the welfare issues that follow. 

Conclusion:

India has a long road ahead to gender justice and legal reform so that Transgender people are as free and empowered in their public and private lives as any other citizen of India. Keeping the above reality in view there is need for working on gender sensitization along with legal reforms needed to make inclusion of transgender people in Indian society a reality on ground. Another aspect is to give people from the transgender community the space and opportunity to voice their needs and talk about their lived realities and normalize their existence within the wider community. 

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