The legislative and judicial contributions towards the upliftment of transgender children in India and the way forward

The author of this article is Gayathri C.H, Coordinator of the Teachers Development Program of Law and Justice Research Foundation, who is also pursuing her final year of L.L.M in Taxation from Govt. Law College, Kozhikode.

This article is a critical analysis of the contributions of the judiciary as well as the legislature with regard to the upliftment of the vulnerable group of transgender children, and the further steps to be observed by us for the effective implementation of the same.

“There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.”

Madras High court¹

Transgender people face injustice at every stage of their life, be it in their families and homes, the school systems that promise to shelter and educate, the harsh and exclusionary workplaces, the markets and shops, the hotel front desk, the emergency rooms, or at the hands of landlords, police officers, health care workers or other service providers2. And among these, the hardest type of ordeals are sadly faced by the Trans children, who just like the rest of the kids in our society, need love, care, protection, and nourishment; both physical as well as intellectual, for their proper upliftment, which indeed is their birthright, though still denied even today.

According to Census data of the year 2011, there are around 4.9 lakh trans genders in the country with literacy levels in the community as low as just 46 percent, compared to the 74 percent literacy in the general population. And therefore, it is heartening to see the government finally acknowledge the rights of transgender children³.

After the direction given by the Supreme Court in Ram Singh v. Union of India4,  to the Centre and State Governments to grant legal recognition to the transgender and to treat them as socially and educationally backward classes, Kerala Government has come up with a policy for the welfare of trans genders. The main objective of the Policy is to ensure the right for self-identification of gender as man, woman or transgender; Encourage all Government Departments and public authorities to extend a non-discriminatory treatment to the trans genders; Ensure that trans genders are no longer punished or harassed for cross-dressing as it is their right to dress the way they wish, and to provide barrier-free access to public transport, health services, and public places & education⁵. 

As a positive step towards the upliftment and empowerment of the children of these vulnerable communities, the Kerala government has also removed the upper age limit for transgender students seeking admission to various courses in the State universities and its affiliated arts & science colleges and has further sanctioned two seats exclusively for trans persons in all courses run by universities as well as the affiliated arts and science colleges in the State in the year 2018 itself6. This decision to relax the upper age limit is expected to encourage trans genders in the State, to pursue various undergraduate and postgraduate courses, thus enabling them to obtain their fundamental right to be educated and thereby lead a dignified living, like rest of the members of the society.

Further, Kerala has also become the first state in the country to announce a transgender policy in 2015 in the light of the judgement of the Honourable Supreme Court of India vide its judgement dated 15th April, 2014⁷, which has firmly established the right to equality and equal protection of trans genders under article 14⁸, 15⁹ and 16¹⁰, by prohibiting discrimination on the basis of gender identity. This judgement has also directed the centre and State Governments to grant trans genders full legal recognition of their gender identity, which includes granting legal recognition to a person’s self-identified gender as male, female or third gender, trans genders persons as socially and educationally backward classes, and extending reservations in public education and employment, amongst others like providing separate HIV zero – surveillance and appropriate health facilities, etc.¹¹

A year after the country’s Supreme Court issued this historic ruling recognizing a legal “third” gender, the first school dedicated to transgender students opened in Kochi, a city located in the state of Kerala. Further, with an aim to ensure the fair treatment of transgender students in pursuing their education without any social discrimination, the University Of Kerala, Thiruvananthapuram has also drafted its ‘ Policy For Transgender Students”. The main objective of this policy being identifying Transgender students in educational institutions under University of Kerala and Protecting their identity & self-respect, it aims at enabling these students to gain confidence, acceptance, and acknowledgment in society at large.

The inclusion of transgender children in the disadvantaged group comes on the heels of Delhi University’s decision also, to acknowledge transgender students by introducing a third gender category in its application form. Transgender children wanting to study in city schools will now be able to do so free of cost as Lt-Governor Najeeb Jung has notified their inclusion within the meaning of children belonging to the disadvantaged category under the Right to Education (RTE) Act¹².

In addition to these, a new school in India, Kinnar Vidyalaya, operated by the non-profit organization Shri Mahashakti Charitable Trust, in the central state of Maharashtra, will now be providing free education to members of the country’s often marginalized transgender community, with more than 25 students — both adults and children — who have already been admitted there¹³, while An NGO in Vasai of Maharashtra’s Palghar district has opened a school that will provide free education to these marginalised vulnerable groups¹⁴.

In order to increase the social inclusion of transgender persons, the government has also planned to start right at the school level, way back in 2018 itself, with the ministry of human resource development set to ask schools across the country to create a national database of transgender children. This was aimed to ensure that the transgender children are not discriminated against, that they are included in the curriculum, that they have basic facilities like separate toilets in schools, and also that the NGOs & parents are involved to evolve a plan of inclusion for these children, as well as their teachers sensitised for the same.¹⁵

In 2019, THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT was also enacted by the Govt. Of India followed by the rules made by the central Govt. in 2020,¹⁶ to provide for the protection of rights of transgender persons & their welfare, and for matters connected therewith & incidental thereto, by recognising their identity and prohibiting discrimination in the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to the use of public services and benefits.

The act¹⁷ through its chapter 2¹⁸, chapter 3¹⁹, chapter 4²⁰, chapter 5²¹, chapter 6^22, and chapter 8²³ strives hard to ensure the same, but unfortunately, the ground reality shouts that despite all these measures taken, India’s transgender laws still appear to be not worth celebrating.

Trans activists have critiqued the various trans rights bills since the first one was introduced in 2016, as in the end, lawmakers always failed to consider the concerns the activists raised, and as a result, even the new law of 2019 violates the rights of trans people rather than respect and uplift long-persecuted communities.

Perhaps the most serious flaw in the new law of 2019²⁴ is the procedure it mandates via chapter 3²⁵ for — the process by which trans people can change their documents to reflect their identity. This Chapter sets up a two-step process in which firstly, it requires an individual to apply for a “transgender certificate” from the District Magistrate where they live, and the same can be done on the basis of a person’s self-declared identity. Then, a certificate holder can apply for a “change in gender certificate,” which signals to the authorities to change their legal gender to male or female. However, this second step requires the person to provide proof of surgery, issued by a hospital official, to the District Magistrate for a second evaluation, and the official must be “satisfied with the correctness of such certificate.”

This sets an extraordinary amount of power with the government office to arbitrarily influence the human dignity of the trans people, as they are to “qualify” to be recognized as who they are and also coerces people into medical procedures they might not want — a fundamental rights violation that the Indian and international jurisprudence condemns.

While the Supreme Court Of Indian have, way back in 2014²⁶ held that trans people deserve the government’s recognition on their own terms without mandatory intervention or discrimination and that they should be recognized as a third gender and should be able to enjoy all fundamental rights while also being entitled to specific benefits in education and employment, it was well declared by the court that “any insistence for [sex reassignment surgery] for declaring one’s gender is immoral and illegal.”²⁷

The Delhi High Court’s ruling in October 2015²⁸ further laid out the intrinsic link between the right to legal gender recognition and other rights, affirming a 19-year-old transgender man’s right to recourse against harassment by his parents and the police. “Everyone has a fundamental right to be recognized in their gender,” the Delhi High Court declared, while Justice Siddharth Mridul wrote: “A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.” – Justice

In addition to violating these court rulings, the new law’s provisions are also contrary to international standards for legal gender recognition and best practices — including those of multiple United Nations agencies, the World Medical Association, and the World Professional Association for Transgender Health, as all these call for separation of legal and medical processes.

Three years after the Supreme Court struck down as unconstitutional, a repressive law that criminalised homosexual relations, the Madras High Court has also now taken significant steps to blunt the sharp edge of discrimination against the LGBTQIA+ community. In an expansive set of guidelines that build on the spirit of the 2018 Navtej Singh Johar v Union of India²⁹ and the 2014 Nalsa v Union of India³⁰ judgments, the High Court Of Madras has barred the dubious practice of “conversion therapy” that claims to change the sexual orientation of queer people or the “gender identity of transgender people to cis-gender”, by pronouncing a recent judgment³¹, which is remarkable for the way it places a conversation about acknowledging and “unlearning” prejudice at its heart, by clearing a space for acceptance of different identities and ways of cohabitation. “I must frankly confess that the Petitioners, Ms. Vidya Dinakaran and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance)” – Justice N. Anand Venkatesh said³², issuing the following interim guidelines/directions for the proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life of their choice:-

1. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.

2. Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.

3. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.

4. NGO concerned shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the Ministry concerned bi-annually.

5. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.

6. With a specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and “garima greh” (shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity- building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who requires shelter and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks.

7. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavor to a device such measures and policies.

8. For the sake of creating awareness, the Court suggested certain sensitisation programs be conducted by the Ministry concerned of the Union/State Government(s).

However, despite these major footing taken by the courts of the country, the first gender audit of the National Council of Educational Research and Training (NCERT), still failed to talk about the lack of representation of transgender or non-binary persons in its textbooks, or how gender stereotypes could affect gender nonconforming children.³³ 

The National Council of Educational Research and Training (NCERT) has also recently transferred two of the three senior faculty members of its Department of Gender Studies, who has helped to develop a first-of-its-kind teachers’ manual on the inclusion of transgender children in schools, which was earlier removed from its website ,on a notice being issued by the National Commission for Protection of Child Rights (NCPCR) ,seeking its comments on a complaint filed by an organisation named Legal Rights Observatory, against the manual.³⁴

Further, its quite shocking to see that even the New Education Policy 2020 ( NEP), which proposes a major revamp for the country’s education system, mentioning “full equity and inclusion” as the cornerstones of all education decisions, has also forgotten to mention communities like lesbian, gay, bisexual in it³⁵, thus leaving a big question mark as to Where’s The Rainbow in NEP !!!??

The countrywide census conducted in 2011, which was India’s first attempt at collecting data on people with non-binary gender identities, had three options to declare a person’s sex–‘Male’, ‘Female’ and ‘other’. And this, ignoring the issues of exclusion and accuracy, provided an estimate of India’s transgender population to be 487,803. However, despite this huge number of transgender people being present in the country, most of the other official data sources still continue to collect and provide data in binary format, excluding transgender and intersex persons.

While there are no countrywide surveys or reports, multiple qualitative reports highlight the ostracization and stigma faced by India’s transgender community, throwing light on the harsh realities, as to how transgender children are forced to quit their education due to harassment and bullying, impacting their chances of employment and societal integration, and how the Individuals who identify as transgender often face discrimination from healthcare workers, limiting their access to health services and are even subjected to higher rates of gender-based violence, especially from police personals.

According to one of such reports prepared by Sangama, a human rights organisation for individuals oppressed due to their sexual preferences, nearly six in 10 transgender persons surveyed in Kerala in 2015, had dropped out of school due to “severe harassment” and gender-related negative experiences.

The same which interviewed around 3,619 transgender persons found that only 12% of the transgender persons surveyed were employed, while half of the respondents made less than Rs. 5,000 per month. It also highlighted the most alarming statistics while that more than half (52%) of the transgender respondents had been harassed by the police, nearly all (96%) had not raised a complaint because of their gender identity.

A similar study conducted by the National Human Rights Commission (NHRC) in 2017 among 900 transgender persons in four districts of Uttar Pradesh and the National Capital Region

(NCR) found that three in four transgender persons in NCR and 82% in Uttar Pradesh were never to schools or were drop outs even before grade X, nearly 15% had no jobs, 69% were working in the informal sector, primarily engaged in singing, dancing and ‘blessing’, three in four respondents were dissatisfied with their career or income-generating activities and 53% were earning less than Rs 10,000 per month.³⁶

Despite these struggles faced by the transgender community across the country, it is highly saddening to see that all the major national data sources on health, education, and employment that provide sex-disaggregated data, such as the National Family Health Survey (NFHS), which provides essential health and nutrition data; the Unified District Information System for Education (UDISE), a collation of data from schools on resources & enrollment; and the Periodic Labour Force Surveys, the primary source of statistics on labour force participation and employment, do not have a separate category for the transgender population. All these exclusions ultimately lead to a situation where many Indians who identify themselves as transgender are excluded from various social security benefits, in spite of the same being their birthright as ensured under part 3 of the Indian Constitution.

Thus, as observed by the Delhi High Court in Naz Foundation case, it is to be well remembered by each of us, being responsible members of the society that ,Where society can display inclusiveness and understanding, only then can these vulnerable groups of people be assured of a life of dignity and non-discrimination. Further, it cannot be forgotten by us that discrimination is the antithesis of equality and that it is the recognition of equality that will foster the dignity of every individual.³⁷

Reference

1. S. Sushama and ors. vs . commissioner of police, greater Chennai police and ors. w.p. no. 7284 of 2021
2. Social Justice ( B)Department , Transgender policy 2015, Government of Kerala
3. The Indian Express , Nov 16TH ,2021
4. Ram Singh v. Union of India(2015) 4 SCC 697
5. The SCC Online blog
6. The Hindu , July22, 2021
7. NALSA v. Union Of India ,Writ Petition (civil) No. 604 of 2013
8. Equality before law – The state shall not deny to any person equality before law or the
   equal protection of the laws within the territory of India.
9. Article 15(2) – No citizen shall, on grounds only of religion, race, caste, sex, place of birth
   or any of them, be subject to any disability, liability, restriction or condition with regard to
   (a) access to shops, public restaurants, hotels and palaces of public entertainment; or
   (b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained
   wholly or partly out of State funds or dedicated to the use of the general public.
10. Article 16 – equality of opportunity in matters of public employment –(1) There shall be
    equality of opportunity for all citizens in matters relating to employment or appointment to
    any office under the State.(2)No citizen shall, on grounds only of religion, race, caste, sex,
    descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of,
    any employment or office under the State.
11. Social Justice ( B)Department , Transgender policy 2015, Government of Kerala
12. The Indian Express , Nov 16TH ,2021
13. https://www.them.us/story/india
14. India Today, June 29, 2021
15. The Print , 27th April, 2018
16. Transgender Persons (Protection of Rights) Rules, 2020
17. The transgender persons (Protection of Rights) act,2019
18. Chapter ii Prohibition against discrimination
19. Chapter iii recognition of identity of transgender persons
20. Chapter iv welfare measures by government
21. Chapter v obligation of establishments and other persons
22. Chapter vi education, social security and health of transgender persons
23. Chapter viii offences and penalties
24. The transgender persons (protection of rights) act, 2019
25. Chapter iii recognition of identity of transgender persons
26. NALSA v. Union Of India ,writ petition (civil) No. 604 of 2013
27. Justice K.S. Radhakrishnan’s observation in NALSA judgement
28. Shivani ‘Shivy’ Bhat vs. State of NCT of Delhi ,223 (2015) DLT 391
29. AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
30. NALSA v. Union Of India ,Writ Petition (civil) No. 604 of 2013
31. S Sushma and ors. vs. commissioner of police, greater Chennai police and ors. w.p. no. 7284 of 2021
32. SCC Online, June 8th, 2021
33. The news minute, Nov 4th, 2021
34. The Indian express, November 11th, 2021
35. The Quint, Aug 16 the, 2020
36. India spend 11th Jun, 2021
37. Naz Foundation v. Gov. of NCT of Delhi160 Delhi law times 277