INTRODUCTION
We all know that every specific community need to struggle whether they are right or wrong doesn’t matter to gain their specific identity and this is how the journey of the people who belongs to different gender or have different sexual identity gains their identity because prior most of the people get afraid to “reveal them as who they are”. We Indians are very much clumsy to adopt the changes which are happening in our society this is the reason why India always defeats from other developed countries.
Sex, Gender and Gender Identity are similar terms but in real life they mean very different things. Sex refers to the biological gender you are born with, gender describes how people reflects on and express themselves and their perceived gender identity this is also referred to as the social gender and to cover all those aspects we use the term LGBT IQ . The first three letters tells us about sexual orientation of a person L stands for Lesbian, ‘they are women who are attracted to other women’. G stands for Gay, ‘they are men who like other men and B stands for bisexuals, ‘they are attracted to both women and men’. T stands for Trans which revolves around gender identity it is based on the idea that gender and sex are different, people are born with a biological sex and are then assigned the attribute of girl or boy however for some people these binary attributes are not right they know they have a different gender identity from their sex and want to have it accepted by society so if the biological sex is different from the gender of a person we speak of a trans woman or transman respectively. The I stands for Intersexual, some people are born with no definitive biological sex sometimes Intersexual kids have surgery to adapt their sex. However, this is a very controversial intrusion into the personal physicality of intersexual people. The umbrella term queer from which the letter Q derives covers people that fit anywhere on the spectrum of sexual orientation, sex, gender and identity.
A BRIEF HISTORY OF LGBTIQ COMMUNITY
- The Indian world view since ancient times has had space for every imaginable entity these entities range from social to scientific and from imaginary to mathematical no way of looking at the world has been excluded this is why it is curious in modern times to find certain ways of life described as unnatural or taboo.
- India is a South Asian country with a long and complicated history and lots of different people came here from all over the world and stayed. The last ones here were British, and they rule around for over 200 years and left only in 1947. The British Empire criminalized sexual activities “against the order of nature” arguably including homosexual activities under Section 377 of the Indian Penal Code in 1861 which was 150 years ago.
- If we talk about Hindu mythologies we have stories of Narad falling into a pond and emerging from it as a woman this is how he discovered the meaning of Maya. Another story of Shiva Bathing in the Yamuna to become a woman and dance with Krishna.
- In Ahmadabad there is a temple belonging to bahuchara a goddess who writes the rooster it is said that there was a pond there that could turn women into men those who seek a male child still visits this dried up pond and seek blessings from hijras.
- One way to understand the stories is to appreciate that in ancient India lines dividing male from female and homosexual from heterosexual were blurred these deals were told without guilt or shame and are not uncommon buy any means.
- But where do the stories stem from perhaps they have their roots in Indian metaphysics in a world where all manifestations of the divine are said to exist “there is space not only for men and women but also for men with a woman’s heart and women with a man’s need masculinity and femininity” are only labels that are applied to bodies being occupied by eternal souls.
HOW SECTION 377 GET DECRIMINALIZE AFTER A VERY LONG PERIOD OF TIME
As per section 377 it was punishable act to have intercourse with any man woman or animal against the order of nature meaning “homosexuality” and “bisexuality” were both outlawed. The rule was first enacted in 1861 under British rule previous to that there was no law governing sexual intercourse in India.
But, a case which starts to change the history of 200 years was Naz Foundation case 2009 [WP(C) No.7455/2001, DELHI HIGH COURT;]
The Naz Foundation is a non-governmental organization working on HIV/AIDS and sexual Education and health since 1994. In 2001, the organization filed a writ petition in the Delhi High Court, challenging the constitutional validity of Section 377, claiming that the Impugned law was in violation of Articles 14, 15, 19 and 21. A bench comprising Chief Justice B.C. Patel and Justice Badar Durrez Ahmed dismissed the petition in 2004, Subsequent to which the petitioners approached the Supreme Court. The Supreme Court directed the High Court to examine the matter, deeming it worthy of consideration. Consequently, the Delhi High Court considered the petition
In this case judges dealt it with two angles first right to life which is inserted in article 21 of the Indian Constitution observes that without dignity or privacy no person cannot enjoy right to life which is the basic fundamental right for every individual and second concept was right to equality judges describe that section 377 is violative of article 14 because this section unreasonably discriminate homosexuals as a particular class and they criminalized the consensual sex between the homosexuals. By this Delhi high court comes to a judgment to decriminalize section 377 as it was infringing the basic rights of people.
The same was observed in NALSA V. UNION OF INDIA [AIR 2014 SC 1863]
But in this case Supreme Court observes a major loop hole that all the laws majorly focus on binary genders i.e. male or female and the rights of the transgender community are not protected by any of the provision of the law, that’s the reason why transgender community was discriminated. Further the Court upheld the right of all persons to self-identify their gender. Further, it declared that hijras and eunuchs can legally identify as “third gender”.
The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.
By all of the struggle and series of cases the landmark case which was the turning point for all the community was the case of NAVTEJ SINGH JOHAR V. UNION OF INDIA [(2018) 10 SCC 1:]
What the verdict means is that LGBT community would be able to indulge in consensual sex freely but there is an exception led by Supreme Court was the right fully protects the animals under against attempt of humans who have intercourse with them that still remain under the purview of crime. While giving this judgment justice Khan willkar the chief justice has raised the individuals identity to the pedestal of divinity trans identity “the name is only are denotative term and the sustenance of Identity is the filament of life” that destruction of individual identity would tantamount to the crushing of dignity which encapsulates privacy, choice freedom of speech and other expressions.
HOW TRANSGENDER BILL WAS PASSEDAND WHY THE COMMUNITY WAS PROTESTING AGAINST THE BILL
In the lieu of above cases it is now proved that any person irrespective of their gender is allowed to choose their identity.
Before the bill was brought in the Parliament there was a press release which states that transgender community is among one of the most marginalized community in the country because they don’t fit into the stereo typical categories of gender of men or women consequently they face problems Ranging from social discrimination, lack of education facilities and Employment, lack of medical facilities and so on. The bill shall empower the transgender community socially educationally and economically. In India from many years the transgender community repeatedly asking for this type of bill which protects their right.
The transgender person {protection of rights bill} 2019 was introduced in Lok Sabha on July 19, 2019 and was passed on 5 August 2019. On 26th November 2019 the bill was passed in Rajya Sabha.
This bill define a transgender person as one whose gender does not match to the gender assigned at birth it includes transmen and Trans women person with variations gender queer and person with socio cultural identity such as Kinner and hijras.
In this bill it is inserted that every transgender person shall have a right to decide and be included in his household. If the immediate family is unable to care for the transgender person the person may be placed in a rehabilitation centre on the orders of the competent court. The government has also taken steps to provide health facilities to transgender person including separate HIV surveillance centers and sex reassignment surgeries.
In this bill a clause for certificate of identity for a transgender person is added in which a transgender person may make an application to the district magistrate for a certificate of Identity indicating the gender as transgender. A revise certificate maybe obtained only if the individual undergo surgery to change their gender either as a male or a female.
This bill also recognizes the following offences against transgender person that is forced or bonded labour, denial of use of public places, removal from household and village, physical sexual verbal emotional or economic abuse. Penalties for these offences vary between 6 months and 2 years and a fine can also be imposed.
This bill also added a provision for the constitution of National Council for transgender person in which
- Chairperson must be the Union Minister for Social justice and the vice chairperson must be the minister of state for Social justice.
- There should be a secretary of the ministry of Social justice
- One representative from Ministries including health home affairs and human resources development.
- It also includes representative of the Niti Aayog and the National Human Rights Commission.
- state government will also be representated
- 5 members from the transgender community 5 experts from the Nongovernmental organization must also be there in the council.
The council will advise the central government as well as monitor the impact of policies legislation and projects with respect to transgender persons it will also rest the grievances of transgender persons.
BUT APART FROM THIS WHY THE PEOPLE ARE NOT HAPPY WITH THIS BILL
But, the people from the community are criticizing this bill because according to them bill violated their rights instead of empowering them. They claim that the bill does not adhere to the required concern. It violated the historic Nalsa judgment by the Supreme Court in 2014 that recognize transgender right to self determination among others.
The biggest opposition is the requisite for a screening committee to certify a person’s Trans status. This will lead to humiliation and harassment of the community.
According to the transgender community this bill is discriminating between the female and the transgender because there is a punishment close which is inserted in the bill that enforcing a maximum imprisonment of 2 years in case of assault or gender base violence against any transgender person but in case of a female the provision for the assault is up to 7 years or any punishment of less than 3 years is bailable at the police station.
The transgender people were very backward in the education employment and health care facilities so they demanded to give them reservation so that their community can uplift which was not granted in the present bill.
CONCLUSION
“We deserve to experience love fully, equally, without shame and without compromise” – Elliot Page
This quote by Elliot Page clearly describes that all persons are the creation of nature and to deny the creation of nature is a sin. Every member of LGBTQ community have the right to be treated as equals although the people who thinks that they are the creation by the adoption of western means they to need to get through the history of India which mainly emerges from artifacts and sculptures and there are many sculptures which give the evidences that in ancient times also the concept of Homosexuality exist.
The bill which was brought by government is a huge step which will result in upliftment of transgender community and the flaws which are presented in the bill should be amended so that it can be enforce in a right way and can achieve its objectives.
