This article is written by Shreyanshi Tripathi, a student at Law College
The nationwide lockdown has become the reason of the discomfiture into the life of both men and women and especially for the daily wage earner. The situation is very much difficult as far as concerned to the people of the transgender community as because their source of income is from their daily earning only. This is very true as people who are from Hijra profession from the transgender community their livelihood is totally dependent from the streets but due to the lockdown, they are in the true sense being locked up in their homes without any proper supply of the food and medicines. The Hijra community which are in India are being identified with unique and myriad gender identification and a sexual orientation forming a unique culture of India.
Impact of covid-19 on the transgenders
The transgender who are living with their hostile parents during this lockdown are also facing the mental stress and trauma, especially those who have gone under the sex reassignment surgery or those who are taking hormones. According to the community which submitted it’s report and pointed out that, “As the world comes together, India’s transgender community fight Covid-19 alone.”[i] There are many transgender who are challenging their lifecycle in this lockdown situation in the absence of the medical help and food. As a result of decades of structural discrimination and violence the majority people of the community has to be depended on the street begging, offering blessing during the traditional celebration and doing sex in order to earn for living.[ii] After seeing the plights of the transgender community a PIL[iii] was being filed in the Kerala High Court by 5 transgender against the state in order to direct them the regular free supply of the medicines and food in consonance with the state government, whenever any member of the transgender community is approaching the concerned statutory authority with the prescription of the doctor as it is seen that the transgender are very much prone to the Covid-19 disease because many transgender are HIV positive and if they are not being given due care then it is obvious that their will be huge number of cases Related to the Covid-19 in the Hijra Community. A bench comprising of Chief Justice S Manikumar and Justice Shaji P Chaly directed that “if any member of the transgender community approaches the District Authority or the Nodal Officer appointed for the purpose of the issuing gender identity card, necessary steps taken at the earliest as possible to address the issue, and on being satisfied, to take immediate steps to issue identity card and ration card to such person so that they can get the benefit of free medicine and food form the government.”[iv] The court also held that the it had viewed the ruling which has been ruled by the Apex Court in the National Legal Services Authority versus Union of India [v], in which it was held that the gender identification is the basic essential commodity for the people as due to which only they will be benefited and can enjoy the civil rights of the members of the community. The Court held in this case that the state has got no reason to deny the basic human rights to the transgender community.
Basic human rights of the transgenders
In the landmark case of National Legal Services Authority v. Union of India[vi], the Supreme Court of India has held that the fundamental rights which are guaranteed into the constitution is equally applicable to the transgender community. This case was being filed in order to legalize the gender of those persons who falls out of the category of the male/female and non- binary persons regard them as the “third gender”. In this case the court looked into the basic features of the Constitution while deciding the matter as disregarding the identity of the non-binary gender will breach the fundamental rights guaranteed by the Constitution of India. The court in this case upheld the right of all person to identify their gender and whereas held that the hijras and eunuchs to be regarded as the “third gender”. Whereas, the court also clarified that the gender identity does not refers as to the biological characteristics but rather it referred as to the “an innate perception of one’s gender” therefore, the court said that the third gender does not have to go any medical examination or biological test which infringes their right to privacy.
The fundamental rights which are interpreted from the Constitution for the transgender community are as follows:
· The court interpreted the word “dignity” from Art 21 and referred to as the one’s identity defines the dignity of the individual as Art 21 of the constitution defines dignity which includes diversity in self expression which permits a person to lead a dignified life.
· Further, the court observed that the Right to equality and Freedom of Speech and Expression mentioned in Art 14 and Art 19 respectively were made in keeping the mind that it is available to all persons irrespective of their gender so, these both fundamental right were being available to the “third gender”. It was observed that the transgender people were being highly discriminated within the spheres of the society in respect of their identity so, it was clearly the violation of their Art 14 (Right to equality) and the court also said that the right to express one’s gender through their dress, words, action and behaviour also comes under the ambit of freedom of speech and Expression (Art 19).
· The court also observed the rights under Art 15 and Art 16 and held that no one should be discriminated on the ground of sex and the transgender community were extremely discriminated on the basis of their gender.
Thus, the court held that the Art 14, 15, 16, 19 and 21 are the fundamental rights which are guaranteed to the transgender community by the Constitution of India whereas in this case the court also referred to the core international human rights convention i.e., European Human Rights Convention for the transgender community. All the above-mentioned articles which are fundamental rights are being implemented in the Constitution due to the recognition of the human rights convention which basically talks about the gender recognition, medical and food facility, etc to the transgender community.
The Transgender Persons (Protection of Rights) Act, 2019
The parliament enacted a new legislation i.e., The Transgender Persons (Protection of Rights) Act, 2019 for the transgender people earlier this year, which was termed as a flawed legislation because it overlooked the mandate of NALSA judgment and it also faced a huge criticism from the transgender community and during its drafting period the government also ignored the people’s participation.[vii] The act does not lays down any provision for the qualification regarding the psychologist for the counseling of the transgender community where as it neither appoints any public servant on the issue relating to the gender identity and sex characteristics which was supposed to be and appreciate report from the medical expert in order to grant for the gender identity documents. The act also lays down a certain provision that the certificate for the identity can only be regarded as the transgender so basically it defines the transgender community under a single umbrella which clearly violates the identity and dignity of one’s individual and goes against under the traditions of the transgender community of the various parts of the India.
The nationwide lockdown has thrown large monumental challenges for the transgender community in respect of their livelihood, so it’s now the responsibility of the state and central government to see the present scenario of the transgender community and offer them the relief packages because if it is not been done then the transgender community will be the one who will be hit hard in this pandemic situation. There are many transgender people who are not having any identity card, public distribution scheme and many more documents that certify their gender so it is the duty of the state to issue them a identity card due to which they will be able to access the relief packages and it can be made possible only with the help of NGOs which are working day and night for them in every part of the district.[viii] The Covid-19 is challenging the foundation of the public health system and the transgender are the one’s who are highly prone to this because they are already in the state of compromised health[ix]. It is important to note that when the whole public health system is being barged in this pandemic will these small marginalized group will be able to get any help from the Indian Government or not.
[i] Amnesty International Community, https://amnesty.org.in/ [ii] Covid-19 and the Plight of Transgender Community, Divya Trivedi [iii] Kabeer C Alias Aneera &ors. V. State of Kerela & Ors., WP(C).No.9890 OF 2020(S),08.06.2020 [iv] ibid [v] AIR 2014 SC 1863 [vi] ibid [vii] As the world comes together, India’s transgender community fights Covid-19 alone, Amnesty International India, 1st April 2020 [viii] ibid [ix] Covid-19 and the Plight of Transgender Community, Divya Trivedi