Question- What rights have been given to transgenders by the constitution?

Related Short Answer Questions

1. According to Article-14, which rights have been given to transgender persons?
   
2. Explain Article-4 in the context of Transgender.

Ans,

In the Preamble of the Constitution, every citizen has been given the right to justice - justice in the condition of social, economic and political equality.

Indian state policy, which earlier recognized only two genders, i.e. only male and female, has deprived the third gender of many of their rights as Indian citizens, including the right to vote, the right to property, the right to marry, claims of formal identity through passports, etc., and more importantly, the right to education, employment, health, etc. The fundamental rights from which they were deprived are their fundamental rights under Article 14, Article 15, Article 16 and Article 21.

The rights of transgenders where first considered under the NALSA judgment of 2014, where the Supreme Court emphasized on the protection of rights, laid down in Article 14, Article 15, Article 16 and Article 21 of the Indian Constitution which give rights to a transgender person under the principles.

Article 14, 15 and 16 provide the right to equality and Article 21 provides the right to freedom to every Indian citizen, but the transgender person is deprived of his basic right to liberty and equality.

Article 14 deals with equality before the law or equal protection before the law in the territory of India. Article 14 clearly falls within the expression “person” which includes male, female and third gender, therefore transgenders are also entitled to legal protection under the Indian Constitution in all spheres of state activity.

Article 15, which deals with the prohibition of discrimination on grounds of religion, race, caste and sex, includes the third gender in its purview because being citizens, they have to be protected on the basis of their religion, race, caste, sex. The right not to discriminate. They have the right to protect their gender expression which is prominently reflected through their dress, actions and behaviour.

Article 16 deals with equality of opportunity in matters of public employment as this article is used to broaden the concept of sex to include “psychological sex” and gender identity within its ambit. Being a citizen of India, transgenders have the right to equal opportunity in employment and should not be discriminated against on the basis of sexual orientation.

Article 21, which deals with the protection of life and personal liberty, states that no person shall be entitled to his/her life and personal liberty shall be denied only in accordance with the process of law. Transgenders have been deprived of their life and personal liberty over the centuries. Transgenders as citizens of India have every right to defend their rights and personal liberty. The Supreme Court has also recognized the right to dignity by recognizing gender identity within the purview of Article 21.

The case of Navtej Singh Jauhar vs. Union of India deals with criminalization of Section 377 of the Indian Penal Code. Because the central issue of the case was the constitutional validity of section 377 as it stated that “voluntarily physical intercourse against order shall be punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, with any man, woman or animal of the nature of, may, or shall be punished with fine.” The petition said that Section 377 of the Indian Penal Code is the right to privacy, equality, freedom of expression, human rights, fundamental rights and freedoms which are guaranteed to him by being a human, which can be guaranteed by any government. Can neither be created nor abrogated. It includes the right to life, liberty, equality, dignity and right to freedom of thought and expression.

Supreme Court in the case of National Legal Services Authority v. Union of India Transgender Community was concerned about the grievances and anguish of the U.S. as they wanted a legal declaration of their gender identity instead of the male/female identity assigned to them at that time. They prayed that the non-recognition of their gender identity was a part of Article 14 and Article 21 of the Indian Constitution.

The Hon’ble Court explained the meaning of Article 14 and said that the Article provides protection to ‘any person’, and here “person” includes a transgender person and, therefore, they are all like any other citizen of this country. States are entitled to legal protection in the field of activity. The court also held that Article 15 and Article 16 are not limited to the biological sex of man or woman only, but are intended to include those who consider themselves to be neither male nor female. Further, the court referred to Articles 19(1)(a) and 19(2) and concluded that transgender personality can be expressed by the behaviour and presentation of transgender and cannot be restricted. Finally, the court referred to Article 21 and observed that “Hijras/Kinnars should be treated as a third gender other than the binary gender under our Constitution and laws.”

The Supreme Court in its final judgment declared that transgenders, other than the binary gender, should be treated as “third gender” for the purpose of protecting their rights under Part III of the Constitution of India and laws made by Parliament and the state legislature. The Supreme Court directed the state government to legalize their third gender identity. The Hon’ble Supreme Court further directed the government to remove social stigma and promote specific health programs and provide equal protection to transgender persons.

And the right to protection from discrimination is infringing. In the present case, the petitioner has argued for recognition of the right to sexuality, the right to sexual autonomy and the right to choose a sexual partner that Section 377 is a violation of Article 14 because it was vague in the sense that “corporal intercourse against the order of nature” was not defined and that there was no. clear distinction between sexual intercourse by natural and unnatural consent. Section 377 was also a violation of 15 as it discriminates on the basis of sex of a person's sexual partner and it was also a violation of Article 19 as it denies the right to express one's sexual identity.

In the present case, the Hon'ble Supreme Court held that Section 377 should be decriminalized and affirmed that homosexuality is not an aberration but a variation of sexuality. The Court further held that discrimination on the basis of sexual orientation is a violation of the right to equality and right to privacy as sexual orientation is an inherent part of self-identity and denial of the following rights is a violation of the right to life and not a denial of a fundamental right can be done.

Prohibition against discrimination

Transgender people have faced a lot of discrimination in terms of housing, health, education and employment. The discrimination faced by them stems from the social stigma and isolation that they suffer from the lack of resources made available to transgender people. In order to protect the rights of transgender people and protect them from discrimination, the Transgender Persons (Protection of Rights) Act, 2019 includes prohibition against discrimination, most importantly in critical sectors such as employment, education and health care.

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