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Over the Rainbow

Introduction

Walking down the memory lane it’s always illuminating to witness the evergreen mythology of this country. For instance, a part of the Ramayana talks about the incident where Lord Ram was exiled from Ayodhya, and all the men and women of the kingdom followed him into the forest. He asked the men and the women to retrieve backand they obliged, but there was a peculiar group of people who stayed behind because they were neither men nor women and hence were not obliged to follow the orders of the King. They were the Hijras and that is exactly when this community of Trans genders came in the eyes of the people.

Transgender: An exception to our Community?

Transgender people in the Indian subcontinent have a roaring history, from being treated as a god to being condemned. The definition[1] of a transgender person is one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as Kinnar and Hijra.In today’s world the Transgender community is a big part of our society, there are more than 4.88 lakh Transgender in the country[2]. Yet they have been admired and feared by people who understand very little about them.

The Trans genders face a lot of emotional as well as mental stress regarding their gender despite of the fact that India has a wide range of Transgender culture which is respected and celebrated. A transperson is not only someone who goes through the procedure of passing[3]but a wide range of men and women with different sexual orientations, it’s more or less has become an Umbrella term.

Since they are exceptional in their looks, culture, upbringing the laws under which they are booked are also exceptional like Section 268 IPC causing a public nuisance, Section 294 Obscene Acts and songs, Section 269 and 270 likely to spread infection, etc. They are also denied of the basic human Rights like Ration card, Right to vote, Right to marriage, child adoption, opening of a bank account, and other fundamental rights. Not only this, they also face socio-legal issues like denial of admission because their genders do not match in their documents, recognition of their gender identity, inheritance in wills and trust, immigration status, employment, and access to public and private health benefits. Despite of all of these challenges faced by them they have exceeded in their community by standing for local, state and national election and have won as mayors and MLAs, they also worked for uplifting their community and working towards the betterment of their people of the community.

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People say a Rainbow fully blooms only after it gets exposed to the sunlight. The rainbow here is The Transgender Persons (Protection of Rights) Bill, 2019[4] for the Transgender community and it could only bloom with the help of the Indian legislative system which acted as a ray of sunlight on which arose amidst the dark cloud. On 19th July 2019, Lok Sabha introduced a bill by the Ministry of Social Justice and Empowerment[5]. It was passed by both the houses of the parliament subsequently the discussion on Article 377 was taking place. The bill received presidential assent and the Act came into effect on 10th January 2020.

The Transgender persons (Protection of Rights) Bill, 2019

In 2014 the Supreme Court made a decision that marked the turning point in the history of Indian judiciary by legalizing the transgender community by calling it a third gender under the landmark judgment of National Legal Services Authority versus Union of India,[6] though it was a turning point it certainly did contain loopholes. Since, from redrafting the Rights of Transgender Persons Bill 2014 to including laws, schemes that would finally do justice to this community. The bill was released again in 2016 and 2018 which the community strongly objected as their rights were not being fulfilled. However, the most recent bills was drafted that finally worked in the favour of the community yet some questions that came up even though this bill and the NLSA judgment provided protection, self-identity, and no violation of Fundamental Rights. Was it because of the flawed provisions under this act? Or was it the legislature who was not listening to what the community wanted?When a landmark judgment has given some shape to the transgender rights why would they want something lesser than that? The NLSA judgment set a benchmark for this act to match up to.

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The Transgender Bill is yet to become statute, but when it does it will be marked as a turning point in the history of the Indian judiciary. However it will be a small step towards the right direction and change, it will be an ice breaker from the old robust laws. With the organisation working endlessly to strengthen the queer community’s rights, it has been very little time since the five judge constitution bench of the Supreme Court gave its judgement on Section 377[7] to decriminalize same-sex marriage.

Even though this act got a lot of alterations in the courts they also made the judiciary see the wrongs done to this community and also made them appreciate their culture of “love”. However, a lot of work still needs to be done at the socio-cultural level. The discrimination towards the community has reduced but the family and social acceptance is still a dream to many. What is expected are more conversations about their rights in respect to marriage, adoption, property rights, reservations. It is a long route to cover but before it reaches social sanction, the awareness and conversations need to continue.

In conclusion, the feeling when you see a full blossomed rainbow after a stormy day, well this is what the queer community felt when they were finally accepted by the society in which they were meant to belong. They faced significant difficulties but they fought and are still fighting for their place in the society. The queer community was always told to love in private but now they can proudly show off their love without being beaten down to their knees. Masks are off, people are no more scared to be open about who they are and who they love and that’s how it should be- against hate, strong and together. We live in a democracy and democracy does not restrict, it embraces.

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[1]  Official Gazette of India, Part -II Section- 1, Ministry of Law and Justice, New Delhi, the 5th December, 2019/Agrahayana 14, 1941 (Saka)

[2]In India, total population of transgender is around 4.88 Lakh as per 2011 census

[3]The Nochoices : Passing; Transgender Specific Issue ref: https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/forge/transgender_passing.html

[4]  See the latest amendments Transgender Persons( Protection of Rights) Bill, 2019.

[5]Ministry under Mr.ThaawarchandGehlot..

[6] Writ Petition (Civil) No. 400 of 2012, India: Supreme Court, 15 April 2014.

[7]LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.


Cite this article (The Bluebook 20th ed.)-

Priyanka Shahani, Over the Rainbow, Ex Gratia Law Journal, (September 22, 2020), https://exgratialawjournal.in/blawg/human-rights/over-the-rainbow-by-priyanka-shahani/.

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Author

Priyanka Shahani
Student - K C Law College, Mumbai