Apurv Kumar
In this modern era, where world is changing very rapidly. In every following day we all are hoping for a new invention. But still there are some evils which needs to be eliminated from society. History has witnessed that there has not been any country or any community that has remained completely immune from the evil of discrimination. No matter will it be a victim or a victimizer. Be it in European colonies, or The Apartheid system in South Africa, the discrimination faced by the Jewish community and in India the discrimination faced by the caste system, the slavery system of United States of America.
So now the question arises what is discrimination?
Discrimination is defined as treating unfairly a group of people or an individual on the basis of prejudice and partiality or discrimination is defined as debarring anybody of equal rights, equal opportunities on the basis of color, class, caste, creed, religion, sex etc. So, basically discrimination is the combination of two words that are prejudice and stereotypes. Stereotypes are the only reason we judge an individual or a group on the basis of racial issues without concerning whether the reason on which we are judging is true or false. We must remember one thing that the attitude we possessed is prejudice and discrimination is the result of our action.
Since our childhood we only heard about that there are two kind of sexes but as we all grew up. We came to know about third sex that is the Transgender. Transgender are the community whose actual gender identity does not match with the gender they were assigned at birth. We often refers transgender with different names like bisexual and lesbians. Nowadays, when every country is rushing towards development. Each and every thing is modernizing but our transgender community is facing major kinds of discrimination in every aspect of life. So being a responsible citizen of my country it is my duty to arise awareness among majority of people regarding the equality challenges or the discrimination facing by our Transgender community.
(IPC) in 2018 only with the case of Navtej Singh Johar V. Union of India[1]. In this the key observations cited by Supreme Court of India were:
- The apex court cited that article 14 of the constitution states that equality before law and applies to each and every class of citizens which implies ‘inclusiveness’ LGBTQ community.
- The apex court cited uphold pre- eminenceof constitutional morality in India by observing that equality before law cannot be refused by giving superiority to public or religious morality.
- The court after properly examining the case stated that gay persons or transgender do not suffer from mental disorder and therefore cannot be penalized.
- The Supreme Court said that homosexuality is not unique among humans which eliminate the prejudice that it is against the nature.
- The Court also suggested about the Yogyakarta principles on the application of International Law in relations to issue of sexual orientation and gender identity’ should be applied as Indian Law.
YOGYAKARTA Principles says that freedom of sexual orientation and gender identity as a part of Human Rights. They were outlined in 2006 by Yogyakarta, Indonesia by a distinguished group of International Human Rights experts[2].
Though this community has seen social and legal progress they still have to face extensive discrimination in various spheres of life be in schools, colleges, hospitals and their respective professions.
The Transgender Persons (Protection of Rights) Act, 2019 is an act of Parliament of India. The bill has been signed by President of India on 5 December 2019 and converted into law. Since 2014 it has been legally allowed for the transgender community to change their sex and attain their constitutional right to register themselves as third gender. Despite getting legalized and various political movements in favor of LGBT rights. Many people of this community remain closeted, fearing discriminations from their families and societies who might see homosexuality as shameful. Nevertheless, acceptance of this community is highest among the Hindus only.
On 6th September 2018 the Supreme Court of India announced its verdict The Court unanimously ruled that Section 377 is unconstitutional as it infringed on the fundamental rights of autonomy, intimacy and identity thus legalizing homosexuality in India.
Some famous lines cited by judges of this case are as follows:
“Criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”
CJI Dipak Mishra
“History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for the LGBT community.”
Justice Indu Malhotra
“It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity.”
Justice D Y. Chandrachud
There is one more famous case that helps us in clearing the concept regarding the transgender protection bill and also of sex. The case is of none other than NALSA V. Union of India[3] here, Article 15 of the Indian Constitution prohibits discrimination by the Stateagainst any person on the ground of sex. Sex though, has not been understood by the Supreme Court of India to mean only biological sex. The SCI interpreted “sex” to include one’s gender identity.
The conclusion of this case finally, the act breaches Article 15 (1) by mandating government certification for a sex-reassignment surgery as well. A person born into the biological sex they conform with needs no such certification for hormonal therapy or a mastectomy, for instance. It is the transgender community alone that needs such authorization from a Chief Medical Officer.
Now comes one more important point that is Invasion of Privacy. The notion of dignity and a zone of privacy that is now constitutionally protected under Article 21 following the decision of Supreme Court of India in case of K.S. Puttaswamy and Another V. Union of India[4], a bench of 9 judges held that privacy is a natural right- one that is essential to self-determination. It identified privacy as an essential feature of a pluralistic society with free expression of thoughts and believes. Privacy enable individuals to take decisions that find expression in one’s personality and protects choices extending to one’s body, faith and in this case gender.
So the conclusion came through this act is that the state is extending its reach to a decision that is inherently intimate. It is mandatorily compelling individuals to expose themselves to red-tapism, to claim something as personal as one’s gender identity. This infringes their right to privacy and decisional autonomy. The privacy breach is only one facet of the violation. The process also potentially strips individuals of their dignity by having them petition the state for their intrinsic identity[5].
Therefore,discrimination is totally an inhumane treatment to the transgender community. Since, by doing this we lose our morality. Now they are also legally acceptable so discriminating them on the basisof their sex is also an illegal act. So, it is our duty because being a responsible citizen we must provide them equal opportunities,sex treat them equally in every sphere of life.
[1]Navtej Singh Johar V. Union Of India, (2018) 10 SCC 1 (India)
[2]2018-2019 Drishti The Vision Foundation, India(Feb. 9, 2020, 7:55 PM), https://www.drishtiias.com/to-the-points/Paper2/to-the-point-paper-2-section-377-judgement
[3] National Legal Service Authority V. Union of India, (2014) 5 SCC 438 (India)
[4]Justice K.S. Puttaswamy(Retired) and Another V. Union of India, (2019) 1 SCC 1 (India)
[5]Blog of the International Journal of Constitutional Law (I-CONnect) (Feb. 11, 2020, 2:35 AM), http://www.iconnectblog.com/2019/12/a-constitutional-challenge-to-the-transgender-persons-act-in-india/
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