- Ankit Somani
It is the right of an individual to have its own identity. Identity should not be misunderstood in a sense of becoming a self-made person. Identity must be seen from a greater perspective. I have born with natural sex and recognizing that gender identity is not a problem. But, curtailing the right of those individuals who do not want that natural sex assigned from birth and want to choose their desired sex is the infringement of their right. It is evident that after the judgment of Navtej Singh Johar v. UOI, where five-judge bench decriminalizes Section 377 which deals with homosexuality will affect transgender rights. Subsequently, the landmark judgment of NALSA VS UOI, Supreme Court of India confers social position to the transgender community and acknowledged them as a ‘legal third gender’. The Supreme Court by its judgment has clearly stated the transgender community is a part of the society and they can’t be discriminated based on their identity. But, recognition does not lead to the self-determining of an individual. Before determining an individual identity, the difference between sex and gender should be distinguished. The former one is determined on the biological characteristics which was recognized from birth and the latter one is identified by an individual’s own experience which developed through his surrounding people.
Constitutionality of Transgender Community
According to law, a transgender person is one, who is partly male or female; or a combination of both man and woman; or neither male or female. Moreover, transgender also includes those individuals who disown their sexual identity from which they were recognized at the time of their birth. Contrary to the ancient and medieval periods, the transgender community is not acknowledged by the members of the present contemporary society. Furthermore, they become the victim of the society who often abuses and exploit them in public places. Article 14 provides equality before the law and equal protection to its citizens before the law. Equal protection of the law is a positive law that does a balance between privileged and underprivileged classes. Moreover, it helps the underprivileged class to come to the status of a privileged class. Moreover, the Indian constitution never talks about gender protection in a precise way. Constitutional framers use the word ‘citizens’ and ‘person’ instead of ‘sex’ or ‘gender’ in the constitution which shows their intent of the framers that they don’t want unfair treatment among citizens of the country. Additionally, their idea also reflects in Article 15 and 16 of the constitution which prohibits discrimination on gender and sex in educational institutions and public employment. Notably, not providing legal status to the transgender community not only violates Article 14 but also violates their right to life of Article 21. The law which violates Article 14 will automatically violate Article 21 of the constitution. The purpose behind the incorporation of Article 21 is to lessen the accountability of constitution framers. As it will work in the absence of suitable legislature and protect the rights of citizens. The constitution-makers can’t envisage every legislature which can guide, control, recognize or safeguard human conduct. Hence, the court interprets Article 21 from the wider perspective.
Considering the third sex in the ambit of Article 21, it is their right to choose their gender identity which leads them to live their life with dignity. The word ‘person’ is stated in Article 21 indicates its ‘gender neutrality’. Gender identity is an integral part of sex and it will be the violation of fundamental rights if citizens are discriminated against on the ground of gender identity.
How the decision Impact Future Generation?
The changes in the society whether it is cultural, social, legal and economic will strongly affect the future generation directly and indirectly. To understand the impact on the future generation, this section is divided into two parts; first, the concept of ‘Intergenerational Obligation’ and secondly Nehru’s idea of ‘Scientific Temper’. It is important to do changes in society for changing the perspective of the current generation which later on develops into intergenerational obligation for the future generation. It is always questioned that why the future generation will pay off for the sin done by their ancestral generation. Pertinent to this, a counter-question always put forward by the current generation of a marginalized group that how much they will suffer for the injustice done to their ancestral generation. Recognition to the transgender community is a perfect example of the above concept. The decision of the Supreme Court helps to the change social perspective of the future generation. The remedy to the problem lies in the core of the society and which reflect in the current decision. The decision will help to construct the society to think critically concerning the rights of the marginalized people.
The idea behind to develop the habit of critical thinking of the future generation to analysis the changes in the society; but the notion was long ago already giving by Jawaharlal Nehru in his concept of scientific temper. Nehru knew that to recognize India as a developed nation; India has to face many obstacles and hurdles and to contour this he introduces the concept of scientific temper in the Indian Constitution. Scientific temper talks about the ethical and social, practical and pragmatic, altruistic and humanitarian way for social betterment.. Scientific temper will not work as a mechanism to analysis but it also helps to prepare us for the upcoming changes. The impact on future generations can be drawn from the above two concepts; first, it will help to analysis the mistake of their ancestral generation and secondly, how to ratify the mistakes by using scientific temper. The combination of both concepts helps to broaden the perspective of the community to recognize the unrecognized people. Moreover, the decision of the Supreme Court and the introduction of the transgender bill strongly support the idea of Constitutionalism. As the above concept will help the future generation for the betterment of the society whether it initiates protest against the state for good cause or to develop a new idea for the future solution. But currently, the real recognition of the transgender community will come when they will not be treated as untouchables which include them to the mainstream of society.
India is known for its diversity and believes in the mantra of ‘unity in diversity’. The term ‘diversity’ should not be restricted to religion and caste; the ambit of diversity also includes sex and gender. India has forgotten that transgender was an important aspect of the ancient as well as medieval India. They hold the highest position in the Mughal Empire and they were treated as a god in Hindu mythology. But, in the 21st century, even after the decision of the Supreme Court, India is struggling to recognize transgender as a part of its culture. It is to be noted that the government of India has introduced several welfare policies and schemes in support of transgender. For instance, MGNREGA is a significant step of the 11th five-year plan which completely focuses on the job opportunity of the transgender people. As the transgender people are eligible for passports, citizenship ID card, participate in the census, etc. All the government welfare schemes will fail if there will be no support from each stratum of society. There is an urgent need for education to all the sections of the society regarding ‘gender identity’ and ‘choice of an individual’. Most importantly, the government has to make stringent laws against the humiliation faced by transgender.
Moreover, self-determining should not be dealt with the common consciousness of the majority but should be dealt with the minority perspective of society. Every individual of the society has a right to choose and the other members of the society have to respect their decision until and unless they are not violating any provision of the law. It is not a mental illness to become a transgender; it is a matter of choice of an individual. It is a matter of choice to disown that sex from which they are recognized at the time of birth. It is their right to live their life with dignity with their choice of sex. Hence, it is of utmost important to change the society thought process by introducing them to the modern legal education system which talks about the right of every individual of the society.
- Navtej Singh Johar v. UOI,  10 SCC 1.
- NALSA v Union of India  5 SCC 438.
- Art. 14, Constitution of India 1950.
- Art. 15, 16, Constitution of India 1950.
- Maneka Gandhi v Union of India,  2 S.C.R. 621.
- Chakrabarty BR Pandey, Modern Indian Political Thought (1st edn, SAGE Publ 2009).
- Transgender Persons (Protection of Rights) Bill 2019.
- 11th Five Year Plan, Planning Commission of India.
The author is a 2nd Year Student of Nirma University.