Gender Non-conformity and Constitutional protection: Expanding gender
Author: Priyadharshini R
The Transgender community is also a part and parcel of society. But they are not recognized as humans and are considered taboo in society. Human rights are the basic freedom that every individual retains by virtue of being a human being. Therefore, such rights can never be denied to the transgender community by discriminating against them based on their gender association.
Unfortunately, transgender people have been deprived of even basic rights and have been shunned even by their parents. India has just started to move towards accepting transgender as the third gender due to the apex court’s verdict in 2014. According to the verdict, transgender people are also persons and they should also be given equal rights with other citizens. Their rights should include equality, dignity, liberty, privacy, most importantly the right against exploitation. Transgender should also be given a reservation for improvement of the community.
The objective of this paper is to find out whether the guidelines of the apex court had been incorporated by the government or not. This paper also analyses the various rights that are to be provided to the community like marital rights, adoption rights, right to education, right to freedom of expression, employment opportunities, etc. The study is conducted by analyzing various sources of secondary data including court judgments, statutes, census, and various statistical reports.
WHO IS A TRANSGENDER?
There is usually a misinterpretation of the term transgender as the persons who are born with particular sex and then converted to another sex. But this is not true. Actually transgender is one who is having a gender identity different from that of the sex assigned to them. The term gender identity is clearly defined in the famous apex court judgment National Legal Services Authority (NALSA) v. Union of India [WP (Civil) No 400 of 2012]
Gender identity is which we will determine the person intrinsic whether he is a female, male, or transgender, or transsexual and it is said to be fundamental aspects of life. A person's sex is usually assigned at birth, but a relatively small group of persons may bear with bodies which incorporate both or certain aspects of both male and female physiology.”
For example, even if a person is born with male sexual organs according to his intrinsic sense(gender identity) he feels like a female.
DISTINCTION BETWEEN GENDER AND SEX:
We used to use the term Sex the same manner it also used as Gender. But these are dissimilar terms and scientifically they are not interlinked. Sex is said to be the biologically formed reproduction that consists of outer and internal body parts (such as sex chromosomes, gonads, sex hormones, internal reproductive structures) of a human being or in short biological differences between males and females. Gender can be used in the content of social features. A person’s sex doesn’t shape their gender. The behaviors of a transgender person are different from the outer appearance, personality, characteristics of a conventionally similar person. The term transgender is used for a variety of people including intersex who is in nonconformity regarding their gender identity. When people internally define themselves, the external expression also takes shape through their actions and outfits that we see in the public. It is a part of their gender identity which is widely known as ‘gender expression’
CONSIDER TRANSGENDER AS THE THIRD GENDER AND BACKWARD COMMUNITY:
Before 2014 transgender are not even considered human beings. They are denied the rights and benefits provided by the Government. Only after the NALSA judgment insists to consider transgender as the third gender and also as socially and educationally backward classes and provide them with all the benefits that are provided for the other backward community.
The judgment also insists to provide reservations for this community in education and employment. Even if the literacy rate among the transgender community is fairly reasonable their education and employment rate is very minimal which has to be changed. Education is the only factor that can improve any community.
The transgender community are denied of the rights guaranteed under Article 14, 15, 16 and 21, which the Supreme Court in its judgment of NALSA v. UOI has clearly denied stating that, “Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws. In the aspects of both social and economic. Even the transgender may also avail themselves the protection. Transgender is also has a right to avail employment, education, and healthcare Article 15 and Article 16 talks about Prohibition to discrimination on basis of Sex. The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to the biological sex of males or females but intended to include people who consider them to be neither male nor female. Article 21 says that every person has the right to lead a life with dignity, they are also entitled to have privacy. The essential part of the Right to life is also to live with dignity."
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019:
The NALSA judgment ordered the formation of an expert committee to look into the problems faced by the transgender community all over India. The committee submitted a report in 2013 with which the Rights of Transgender Bill, 2014 was passed in Rajya Sabha but failed in Lok Sabha. In 2016, the bill was amended and a new bill was passed through both the houses and was called The Transgender Persons (Protection of Rights) Act, 2019.
 Ministry of Social Justice & Empowerment (MSJE), Report of the Expert Committee on the Issues relating to Transgender Persons, Oct. 23, 2013.  ld  ld  Supra, at 1