Transgender people are people who don’t fit into traditional gender roles, which only accept male and female genders. As a result of society’s refusal to acknowledge their gender identity, they have endured misogyny, social injustice, and physical abuse. Hijras, jogappas, Sakhi, Aradhis, and other transgender socio-cultural groups exist, as well as persons who do not belong to any of the groups yet are considered transgender. Transgender individuals in India are legally protected and have the right to be recognised as a third gender.

The Indian constitution ensures transgender people’s rights in the same manner as it guarantees justice and equality to all Indian citizens. The government has passed the Transgender Person (Protection of Rights) Act of 2019, which forbids discrimination against transgender persons in jobs, education, and health care. Welfare programmes have also been established to protect the rights of transgender persons.

Recognition as Third Gender

People in the transgender community have been discriminated against for as long as they can remember. Their identity has always been illegal, repressed by law or culture, and they have been forced to write male or female against their gender. However, India’s Supreme Court recognised transgender individuals as the third gender in order to end prejudice and defend transgender people’s rights. 

According to court the transgender community should be treated as socially and economically backward classes and allow them to get admission in the educational institution and the employment should be provided on the basis of their third gender category.

In its final verdict, the Supreme Court decided that transgender people, in addition to binary gender, shall be considered as “third gender” for the purposes of protecting their rights under Part III of the Indian Constitution and laws enacted by the Parliament and state legislatures.

Transgender Person (Protection of Right) Act, 2019

The government has passed the Transgender Person (Protection of Rights) Act of 2019, which forbids discrimination against transgender persons in work, education, and health care. Transgender people’s rights have also been protected by welfare programmes. An act to protect the rights and welfare of transgender individuals, as well as matters related to and incidental to that.

The Indian Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, with the purpose of protecting transgender people’s rights, welfare, and other relevant problems. In light of the expiry of the Transgender Persons (Protection of Rights) Bill, 2018, the act was introduced in the Lok Sabha, the lower house of the Parliament, on July 19, 2019 by Thawar Chand Gehlot, Minister of Social Justice and Empowerment. On December 5, 2019, the president signed it, and the act was published in the Indian Gazette. It has been in force since the 10th of January 2020, following publication in the Gazette on the same day.

The bill defines a transgender person as someone whose gender does not match the gender assigned at birth and forbids discrimination against transgender people in employment, education, housing, healthcare, and other areas. It also provides for certification after surgery to change a person’s gender. For a revised certificate, give the DM the application and a certificate from a medical superintendent or top medical officer of the medical institution where the surgery was performed.

Violation of Human Rights

In contravention of the constitutional rights of equality before the law and equal protection under the law, they are denied social and cultural engagement, resulting in limited access to education, health care, and public areas.

According to Section 377 of the Indian Penal Code, “voluntary carnal intercourse against the order of nature with any man, woman, or animal shall be punished with life imprisonment or 10 years imprisonment with a fine.” Infringes on people’s right to privacy, equality, freedom of expression, and protection from discrimination.

Transgender people have been subjected to workplace discrimination and job discrimination. They are coerced into sex labour, putting them at the highest risk of catching HIV because they agree to unprotected sexual intercourse out of fear of rejection or to affirm their gender through sex.

Marriage Rights of Transgender Community

Transgender people have the right to marry, according to Article 21. Under the Constitution and international law, people of the same sex have fundamental rights, according to the Court. State governments have also been told to set up procedures to enforce “third-party” rights and the rights of transit individuals.

In India’s constitution, the freedom to marriage is not explicitly guaranteed. On the other hand, Article 21 of the Indian constitution is frequently considered to cover a wide range of rights linked to the right to life. 

The Supreme Court recognised Article 21’s freedom to marry in Lata Singh v. State of Uttar Pradesh, declaring that a person who has achieved the age of majority is free to marry whoever he or she wishes.

In the decision of Obergefell v. Hodges, the Supreme Court of the United States gave same-sex couples the fundamental right to marry in 2015. In Justice K. Puttaswamy v Union of India, the Supreme Court of India ruled that the right to privacy included “the option to enter the relationship that is the foundation of the family in our society.”

Madras High Court held Transgender Persons Right to Marry

In Arun Kumar and Others v. Inspector General of Registration and Ors., the Madras High Court declared transgender marriage permissible under the Hindu Marriage Act, 1956.

The decision came in a case when Arun Kumar and Srija, a Tuticorin couple, wanted to register their marriage with the state. The couple married in Hindu tradition and attempted to register their marriage, but state officials refused to recognise their union. The refusal was predicated on the basis that a transwoman (Srija) does not qualify as a “bride” under the Hindu Marriage Act, hence the marriage could not be registered. 

“Transgender persons who are neither male nor female fit within the definition of ‘person,’ and hence are entitled to the same legal protection as any other citizen of this country in all sectors of governmental activity,” the court noted.

By recognising and interpreting a transgender person’s right to marry under Article 21 of the constitution, this judgement created a precedent. Transgender people’s rights and lives will take a positive new turn with the inclusion of transgender persons who identify as women in a liberal understanding of the term “bride.”

The article is written by Kiran Israni, 2nd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

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