1INTERNATIONAL CONFERENCE ON HUMAN RIGHTS, DEMOCRACY AND

HUMAN DIGNITY: 70 YEARS OF UNIVERSAL DECLARATION OF HUMAN

RIGHTS.

NAME OF THE RESEARCHER: 2Aakash Aggarwal

FOCAL THEME: Human rights, democracy and human dignity.

SUB-THEME: Protection of Human dignity.

RESEARCH PAPER TITLE: Human dignity as a basis for human rights to the
“Transgender” and it`s contemporary scenario in INDIA.

Affiliation: BBA.LLB (hons.), Himachal Pradesh National Law University, Shimla

171011.

1
International conference on HUMAN RIGHTS, DEMOCRACY AND HUMAN DIGNITY: 70 YEARS OF UNIVERSAL
DECLARATION OF HUMAN RIGHTS organise by Himachal Pradesh National Law University and Grand Academic
Portal India.
2
Aakash Aggarwal – BBA.LL. B (Hons.) 1st semester, Himachal Pradesh National Law University, Shimla (H.P.)
Abstract - Should transgender be provided with human rights and dignified character? The
topic of this research paper is “Human dignity as a basis for human rights to the transgender”
under the sub-theme “Protection of human dignity”. The “transgender” is the term for the
people whose gender and sexual orientation is different from the sex assigned by birth. In
2012, the government of India submitted figures before the apex judiciary organ of the
country (i.e. Supreme court) that approx. 2.5 million population of transgender (lgbt`s)
recorded in the country. Transgender constitutes an undeniable section of country which is
being marginalised since the very decades. Transgender do have their specific character and
must have the right to lead a dignified long run. As far as the homosexuality is concerned,
Netherlands was the first country to legalise the same-sex marriages. Everyone has the right
to lead a dignified human life and must not be deprived of legal rights. Transgender should be
happily accepted by the society and proper respect should be given to them. This research
paper aims to find the contemporary scenario of human rights to the transgender in a highly
democratic country like India, the various problems which the transgender community is
facing around the globe and the question that can human dignity be considered as a basis for
providing human rights to this certain community. Various countries have set an example by
making stringent laws and legislation for this community so that they can lead their life in a
lofty manner. Transgender are being characterized as mentally ill, the persons which are
socially deviated. The crime rates against transgender, poverty issues and lack of proper
access to the essential resources are some major concerns which need to be discussed.
We can`t directly deny this community in the name of so called “morals and ethics”, though
it`s all about the way, a person forming his perception. Many people are in ethical dilemma
that whether a civilised society can accept and pay respect to such kind of community which
are against their own

created and developed morals and ethics especially in a deeply rooted, customized,
diversified country like India. This research paper will also include the various local
perceptions of the people, like how they perceive this community which may vary from
individual to individual. The main purposes of this research are to come to a conclusion, to
get out of this “ethical dilemma” , to consider transgender as a requisite part of any society
and to pay the attention to the contemporary issues and consequences this community is
facing these days globally !!
{KEYWORDS – Human dignity, transgender, morals, ethics.}
Research aims and objectives:
- To know about existence of third gender community i.e. ‘Transgender’.
- To study various case laws with respect to discrimination against transgender.
- To find out the evolution of transgender’s right movement in India.
- To go through various Indian case laws responsible for legal recognition of the
community ‘transgender’.

Research questions:
- What is the existence of this third gender community?
- What are the various international case laws which verified the discriminations, this
community is facing?
- From where it all started in India (transgender right movement)?
- What are the various Indian case laws which heat up the rights campaign in India?
- Should transgender be provided with all basic rights, on the basis of human
dignity?

Research methodology:
Exploratory research has been done with the help of non-doctrinal approach. The
mediums of data collection are various survey reports, previously conducted researches,
journals, magazines etc. Secondary data has been collected and analysed properly.

Need statement:

Third gender community or transgender community is the community comprises of that kind
of people which are having sex different from that which was assigned at the time of birth, or
the people with gender non-conformity. This is the community which continuously facing the
heat of the society in almost every arena of their livelihood i.e. education, employment,
medical assistance etc. this community is being marginalised from the very beginning of the
time, has no social acceptance. Biology should not consider as everything, these people must
be provided with legal and dignified recognition despite of the gender they are having.
Introduction

Every day, Transgender community is facing brunt of society and economic and social
marginalisation because of being denied by society for their sexual orientation. Transgender
people are basically that section of society which has different sexual orientation than that of
which was assigned at the time of birth. Transgender people are commonly known as Hijras,
Kinnars, Iravanis, Khusras in this contemporary society. This is the undeniable section of the
society which must be given legal gender recognition. The transgender people face lot of
discriminations and don’t have access to basic facilities i.e. access to medical assistance, right
to education, access to all resources etc. These people are more prone to diseases like
HIV/AIDS because of no access to proper medical facilities.
Hinduism is the oldest religion in the world (traced from 500 B.C.) followed by approx. 11
billion devotees worldwide. In Hinduism scared texts there was a reference of this
community which shows its existence from the very time ago.
3
1. In Hindu mythology, there was a hero named Iravan who destined to marry Mohini
before his death through self-sacrifice. to fulfil the boon given by goddess kali,
Krishna (incarnation of lord Vishnu) turned into Mohini to marry Iravan and to spent
night with him since no other woman wanted to get widow overnight. After his death,
lord Krishna transformed back from Mohini. The transgender celebrates this
transformation as a festival every year.
2. Secondly, when Arjuna was in exile, he met a beautiful lady named Urvashi and she
wanted to marry him but arjuna refused. For this, she cursed arjuna to become a
transgender named ‘Brihnnala’.

These shows the existence of transgender from the very beginning of Hinduism. Its been a
long time this community is not accepted by the society which must be concerned. There are
several myths or prejudices in the society about this Transgender community. Every one must
have legal gender recognition and there should be no discriminations on the basis of gender
recognition and gender recognition. 4Article 27 of Universal Declaration of Human Rights
has provisions for the protection of cultural rights of the individual. It prescribes the
enjoyment of cultural rights; it insists that everyone has right to participate in all aspects of
one’s cultural life. It can be said that, things started to turn after the British Raj in India
(1757-1947) when the colonial rulers introduced section 377 of Indian penal code in 1860
which criminalizes the homosexuality and listing transgenders as unwanted and criminal
elements of society.

3
Mahabharata by C. Rajagopalachari.
4
U.N General Assembly, “Universal Declaration of Human Rights,” (Paris,1948). Article 27 of Universal
Declaration of Human Rights – “everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its benefits”
5
The trans murder monitoring project, an initiative which collected the data and records of
trans homicides worldwide recorded 1731 murders of transgender people from 2007-2014,
murders also involve shocking brutal practices, humiliation and torture of transgender people.
Such kind of reports shows the real status of transgender in our modern society, how the
transgender is being treated. There must be legal recognition of every person besides of its
sexual orientation and gender identity and have access to all general facilities.
The wheel is turning, countries are revoking their legislations and their legal arenas which
make the transgender deprived of their basic human rights. The right to recognition is now
the part of every international human right convention or treaties, which acknowledges the
worth of every single person. Gender recognition is also an imperative element of other rights
such as right to privacy, right to life, right to freedom of expression, right to education etc.

“Making legal recognition for transgender must be a global priority”.

Being the most unwanted section of society, transgender community is facing injustice at
every turn, lot of discriminations everywhere for their different sexual orientation and gender
identity. Whether it is the arena of medical facilities and proper assistance, access to proper
education, employment, housing, public accommodations, police and incarcerations.
Findings of 6“Injustice at every turn: A report of National Transgender Discrimination
survey” are:
• Respondents transgenders live in extreme poverty, a staggering (41%) of respondents
reported attempting suicide compared to (1.6%) of general population, who lost job
due to bias (55%), harassed and bullied in school (51%), victims of physical assault
(61%) and victims of sexual assault (64%).
• (90%) of the surveyed respondents reported experiencing harassment, mistreatment
or discrimination at workplace.
• Respondents who had lost a job due to bias at workplace experienced ruinous
repercussions like four times the rate of homelessness, (85%) more incarcerations,
more than double the HIV infection rate, compared to those who didn’t lose a job due
to bias.
• (53%) of respondents reported being verbally bullied in a place of public
accommodations i/c hotels, restaurants, buses, airports etc.
• (22%) of them reported being harassed by police, (46%) being uncomfortable
seeking police assistance. (16%) of respondents who had been to jail reported being
physically assaulted and (15%) being sexually assaulted.

5
Transgender Europe (TGEU) – ‘Trans murder monitoring project’ report 2014.
6
“Injustice at every turn: A report of National Transgender Discrimination survey” by National Centre For
Transgender Equality, 2019.
These are some shocking findings of the report which reflects the various mal-practices being
practiced on transgender community.

Evolution of transgender and their rights: An International aspect!

In earlier times there were strict legislations and provisions in the legal arenas of the nations
which prohibited the same sex conduct, same sex marriages and they were treated as
unwanted section of society. 7Countries like Malaysia, Kuwait and Nigeria enforce laws
which outlaw the very existence of this “transgender community”.
With the passage of time the tide turned its direction and countries started giving recognition
to this untouchable section of the society. In recent years, transgender people striving for
legal recognition have made tremendous strides worldwide.
▪ Argentina in 2012, broke the ground and stated anyone over the age of 18 can select
their gender identity, can revise official documents, undergo sexual re-orientation,
children can also do such by the guidance of their legal representatives.

▪ In 2015, four countries Colombia, Denmark, Ireland and Malta which revoked their
significant barriers to gender recognition. Ireland’s 2015 gender recognition bill was a
fruit of 22-year legal fight by 8Lydia Foy. She filed her case before Irelands High
Court in 1997, again in 2007, which gained attention of various international human
right bodies that directed Ireland to come up with a gender recognition bill.

▪ Nepal supreme court revised the 2007 ruling, directed the government to recognize
third gender category. Furthermore, the human right activists of Nepal were
successful in including third gender category on voter rolls in 2010, citizenship
documents 2013 and passports in 2015.

▪ In 2009 the supreme court of Pakistan recognised this community as third gender.

▪ Bangladesh’s cabinet issued a decree in 2013 stated the hijras as their own legal
gender.

7
Ghoshal, Neela, and Kyle Knight. “Rights in Transition: Making Legal Recognition for Transgender People a
Global Priority”. World Report 2016, by Human Rights Watch, 1st ed. Bristol University Press (pp. 21-32).
8
Lydia Foy- an Irish trans woman notable for leading legal challenges regarding gender recognition in ireland.
Various case laws and statements in European Human right court:

9
1. Rees v. United Kingdom:

- In this case the court rejected the request of the applicant, a female-to-male
transgender who wanted to amend his birth certificate to publish his current sex on
birth certificate. She said that using Mr. as a prefix caused him embarrassment and
humiliation. She also stated that the article 4,8,12 of European convention had been
violated. But court rejected his arguments.

10
2. Corbett vs Corbett:

- In this case applicant argued that state had violated his right to marriage under article
12 of the European convention. But court refused to this argument and stated that
article 12 stated the marriage between two people of opposite sex.

11
3. Sheffield and Horsham v. United Kingdom:

- Similarly, the court refused the arguments made by the applicants, two male-to-
female transgender who wanted to amend their birth certificates and stated that their
rights under articles 14, 8, 12 had been violated. The court also stated that Ms.
Horsham would have to live in exile because her marriage to male partners in
Netherlands wouldn’t be recognised by the authorities here in U.K.

Some recent case laws in U.S. Court of Appeals:

12
1. Whitaker v. Kenosha Unified School District:

- Consist the discrimination against transgender students which constitutes sex

discrimination and violates the Title IX of Education Amendment Act of 1972 and
Equal Protection Clause of U.S. constitution.

9
Rees v. United Kingdom, App.No.9532/81, 9 Eur. H.R. Rep. 56(1987)
10
Corbett vs Corbett (1970) 2 AII ER 33.
11
Sheffield and Horsham v. United Kingdom, App. No. 31-32/1997/815-816/1018-1019,27 Eur. H.R. Rep. 163,
54, 66 (1997).
12
Whitaker v. Kenosha Unified School District, 858 F.3d 1034 ( 7th Cir. May 30, 2017)
 13
2. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

- Consist termination of an employee on the basis of transgender status which

curtails the Title VII of the Civil Rights Act of 1964.

14
3. Glenn v. Brumby:

- Termination of employee on the basis of his gender recognition and

unsubstantiated “bathroom concerns” resulted in the violation of Equal Protection
Clause of US constitution.

Transgender community: Scenario in India

• Evolution of transgender community and their basic rights:

India is religiously and culturally diverse country in which ancient religious customs and
cultural activities are still being performed in this modern era. The concept of third
gender community, or the people having gender unconformity, transgender has its
existence from the very beginning of Hinduism. There are references in Indian mythology
and Hinduism sacred texts of this third gender community. Hinduism is the oldest religion
of the world traced back in around 500 B.C. and the words like ‘trityaprakriti’ and
‘napunsaka’ are the integral part of Hindu mythological texts which verified the very old
existence of this ‘third gender community’. It is also believed that during the 14-year
exile of Lord Rama, he ordered all his male and female devotees to go back, by feeling
bound with this statement only hijras stayed with him. This made him happy and he
blessed hijras to confer blessings at the time of auspicious occasions such as marriage, at
the time of birth by singing, dancing and all. Thus, this all shows that this third gender
community is not the contemporary one, it has its existence from the time immemorial.
15
The transgender in Tamilnadu (India) call themselves as Iravanis in the memory of
Arjuna’s son in Mahabharat epic which was sacrificed to Goddess kali after the end of
‘Yudha’.
This third gender community is continuously facing
heat of the society, unacceptance and other various discriminations. Right to legal
recognition must not be gender biased. This community is undeniable section of the

13
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6TH Cir. 2018)
14
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. Dec. 6, 2011)
15
Agoramoorthy, Govindasamy, and Minna. J Hsu. “Living on the Societal Edge: India’s Transgender Realities.”
Journal of Religion and Health 54, no. 4 (2015): 1451-1459
 society which is not to being humiliated or discriminated. It’s the duty of every nation and
the authorities to ensure the dignity of each and every citizen of that particular nation
despite of his gender, race, religion etc. From the beginning of this community they are
being treated as criminal element of society which has no social acceptance in the name
of so called ‘morals and ethics.’

This all started with the introduction of section 377 of Indian Penal Code of 1860 which
criminalizes the conduct of this third gender transgender community and termed them as
unnatural conducts which also includes homosexuality, same-sex marriages etc.

16Section 377 of Indian Penal Code stated as follows-

“Unnatural offences- Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.”
During the time of colonial rule in India, this community was referred by the use of
stigmatizing and pejorative term ‘enunchs’.
Amendment to ‘Criminal Tribes Act of 1873’ in 1897 and the sections included in the
amendment was totally applied particularly to Enunchs. This was believed that this
community is more exposed to criminal offences and conducts. Under the ambit of sections
in the amended act, enunchs were required to registered with the local authorities, they were
also prohibited from being a guardian of a minor, making a gift deed or adopting a son
etc.
Other provisions under the amended act are as follows:
17
1. Local governments and authorities were directed to maintain a register of names
and residences of all the enunchs who were suspected of criminal activities such
as kidnapping or castrating etc.
2. 18Enunchs who had not completed 16 years of age could be imprisoned for two
years.
3. 19They were also prohibited from dressed like a female at any public space.

This Criminal Tribes Act of 1873 was repealed in 1949 but there was presence of other
domestic legislations which were having stringent provisions related to the conduct of this
community such as Telangana Enunchs Act etc. 20it was stated that enunchs could be

16
Section 377, Indian Penal Code (1860)
17
Criminal Tribes (Amendment) act, 1897.
18
Id.
19
Id.
20
Section 4, Telangana Enunchs Act.
arrested without any warrant on being found performing in the disguise of a woman at public
places.

• Legal fight for the rights to third gender community in India:

After the very unrest in the country, when various human rights organisations, lgbt rights
organisations came together in coalition to raise ‘voices against 377’ in 2008. The main legal
fight for the rights to transgender community is basically started in 2001 when the lawyers
collectively filed the petition reasoning the constitutionality of Section 377 on the behalf of
Naz Foundation in Delhi High Court. Which was decided further in 2009.
In this case of Naz Foundation v. Govt. of NCT of Delhi (2009):
21
- Which held that the criminalisation of consensual intercourse between the same
sex is against the constitutional rights. Therefore, decriminalised the consensual
intercourse between two individuals of same sex.

After the judgment in this case, there was a wave of happiness among transgender people
around all over the country. This was considered as the big stride, striving for the rights to
transgender. But this happiness was not permanent or stayed with them forever as the two-
judge bench of supreme court over-ruled the judgment passed by the Delhi High Court in the
case of Naz Foundation v. Govt. of NCT of Delhi in 2013.
In this case of Suresh Kaushal v. Naz Foundation & others (2013):
22
- It was held that section 377 of Indian penal code which criminalises the
homosexuality cannot be revoked or struck down and let parliament to decide the
constitutionality of Section 377 of IPC.
After this in 2014, there was again a joyful moment for the transgender community all over
the India because in the petition filed by National Legal Services Authority to consider
transgender as third gender of the nation.
In this case of NALSA v. Union of India (2014):
23
- A two-judge bench of Supreme Court comprises of Justice A.K. Sikri and
Justice K.S. Radhakrishnan held that transgender people too have the right to self-
identify, whether as male, female or transgender and there is no need of medical
re-assignment. It was also held that right to life, dignity also includes ones right to
gender identification and sexual orientation as well and consider this community
as third gender of the nation.

21
Naz Foundation v. Govt. of NCT of New Delhi & others, WP(C) No. 7455/2001 (2009).
22
Suresh Kumar Kaushal v. Naz Foundation and others, SLP(C) No. 15436/2009 (2013).
23
National Legal Services Authority v. Union Of India, 5 SCC, 438 (2014).
This judgement brought great excitement and was one step ahead in transgender right
movement in India. In 2018, moving towards one step ahead towards destiny, in the petition
filed by Navtej Singh Johar before Supreme court, it was resulted in the decriminalisation of
homosexuality under section 377 of Indian Penal Code.
In this case of Navtej Singh Johar v. Union of India (2018):
- 24
In this judgement a five judges’ bench of Supreme Court laid down the
judgment which resulted in the decriminalisation of homosexuality under section
377 of Indian penal code. It was held that section was unconstitutional that it
criminalises the consensual relationship between two individuals of same sex.
Chief justice Deepak Mishra in the judgment also stated that right to life and
dignity under article 21 of constitution of India also include the aspect of one’s
identity and sexual orientation.
Thus, we can say that with the passage of time, the tides are turning and authorities are
becoming more aware about the rights to transgender community so that they can also enjoy
the long and dignified life.

Should transgender be provided with all basic rights, on the basis of human dignity?:
An Epilogue

We have seen how the tides are turning in the favour of this third gender community i.e.
transgender, though they have been discriminated from the time of their existence. As per the
legislations from the time of colonial rules which stated this community as an element of
crime or as the community suspicious of doing criminal and unnatural offences, the
community has faced a lot of unhumanitarian conduct which is not less than of that which
was tolerated by blacks of Africa during the policy of Apartheid. Due to the different morals
and values of this community, they are surviving on the societal edge with lots of
discriminations. Biology is not everything, or it is not the criteria which would decide
whether the person should facilitate with gender recognition and basic human rights. A quote
from Jazz Jennings- “Being transgender isn’t a medical transition. It’s a process of
learning to love yourself for who you are”. Third gender community, being the undeniable
section of the society must be provided with legal gender recognition and with all basic
human rights and must be treated equally, despite of the sex and sexual orientation they are
having. There has been many changes in the scenario of perceiving this community from the
very starting to the contemporary one. The things and the perceptions are being changed.
Every citizen has the right to live with dignity with reputation with respect, just because of
their so called different sexual orientation, don’t they entitle a dignified life? Sexual
orientation is not the criteria or the factor which decides the dignity of any individual, the
individual must be recognized legally and must have access to all necessary resources, must
be facilitated with all basic rights and must be treated equally irrespective of one’s caste,

24
Navtej Singh Johar v. Union of India, Writ Petition (c) No. 76 of 2016
colour, race, gender identity and sexual orientation. According to sociologist Durkheim, he
stated this society as organic solidarity and the words of Aristotle which stated man as a
social animal tell us about the importance of societal acceptance for a dignified life.
Transgender should be considered as the integral part of society; without societal acceptance
they cannot lead a dignified life.

“The transgender community deserves the dignity and respect that most people take for
granted.”
▪ ED. Murray