Dr. TARINI MEHTA
There are many communities living in the shadows in India, shunned for being different from the majority. Denied the respect deserved by every human being, they are unable to access many of the things that we take for granted. Since the eighteenth century there has been large-scale discrimination against the transgender community in India; treated as second-rate citizens in regard to health care, education and employment, social exclusion has become the norm. As the Supreme Court of India observed:
“Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”
Yet, despite the introduction of the Transgender Persons (Protection of Rights) Act, discrimination against this community remains prevalent, and is becoming even more apparent during the lockdown. Most are daily wage earners, and having lost their sources of livelihood owing to social distancing, they find themselves financially insecure. They are now barely able to support themselves. The Government has also not provided them with adequate welfare measures. Even the Pradhan Mantri Garib Kalyan Yojana does not provide for the transgender community. The National Institute of Social Defence under the Ministry of Social Justice and Empowerment has offered them financial assistance to the tune of Rs. 1500. This has been provided to less than 1% of the transgender population. The majority have been unable to access even this small grant, owing to lack of information and limited time slots. Access to adequate healthcare during the lockdown, especially for those on hormonal treatment or recently out of surgery is another matter of concern.
Although with Aadhar cards they can access the additional ration that the Government is distributing during the lockdown, a large percentage of them still do not have Aadhar cards and ration cards. A report published last year by Dalberg, a consulting firm, estimated that 102 million people in India do not have Aadhaar cards, which includes over a quarter of the country’s third gender citizens. As per the 2011 Census, there are 4,87,803 transgender persons, of these by 2016 only 41,033 had been issued Aadhar cards (as per data presented by the Minister for Communications and Information Technology, Shri Ravi Shankar Prasad in the Rajya Sabha in 2016). The number of transgenders in Uttarakhand at this time was 4,555, out of which merely 143 had Aadhar cards.
One of the issues in relation to getting access to identity documents is that the Transgender Persons (Protection of Rights) Act has laid down a bureaucratic procedure for legal gender recognition, dismissing self-identification by transgender persons. This contravenes the 2014 NALSA (National Legal Services Authority) judgment, which had, in fact, affirmed that, “gender identity…refers to an individual’s self-identification as a man, woman, transgender or other identified category.” Indeed, recognition of one’s gender identity is at the very heart of the fundamental right to dignity, which is enshrined in the Right to Life in the Constitution.
Scandinavian countries, together with Argentina, Colombia, Uruguay, Belgium and Ireland, have set an example when it comes to legal gender identification. Norway, for instance, allows autonomous legal gender recognition for persons between the ages of sixteen and eighteen. While children between six and sixteen are legally allowed to change their gender with parental guidance.
The element of dignity eludes India’s transgender community. They are abused and slighted in public places. During the lockdown when they have to stand in line to access welfare schemes and basic food items and rations, they have been subjected to extreme discomfort and trauma. In certain places, such as Hyderabad, posters have been displayed that warn people to stay away from transgender persons as they may have corona virus. The intensification of stigma and discrimination against them has led to around 2000 transgender persons writing to the Ministry of Finance, Home Affairs and Social Justice & Empowerment, stating that:
“While, as citizens, we fully appreciate the gravity of the health pandemic and are co-operating in the public interest, we would like you to take appropriate and urgent measures to mitigate the serious impact of the lockdown on the livelihoods, food security and health of lakhs of transgender people across the country.”
One of the key ways in which in this can be achieved is by ensuring that the non-availability of ID cards and documents is not a basis for the denial of welfare benefits. Indeed, during this time no Indian should go hungry or unaided owing to the lack of requisite documentation.
The principles of social, economic and political justice, dignity of the individual, and equal opportunity for all, are enshrined in the Preamble of the Indian Constitution. The authors of our Constitution recognized the fundamental rights of all citizens, with the objective of nurturing and developing their individual uniqueness so that they may be able to reach their highest potential. Justice and ethics demand that every person’s individuality be respected. Indeed, an ethos within which each person can flourish and flower leads to the common good. Some of the happiest countries in the world as per the World Happiness Report, such as Norway, Denmark and Sweden, have adopted such a path of greater equality. Indeed, it is high time that we move away from prejudices, towards a more inclusive and just vision.
Dr Tarini Mehta Is an Assistant Professor at Jindal Global University’s School of Environment and Sustainability, as well as a lawyer specialising in Environmental and Human Rights Law.