‘Is it possible for transgenders to be legal and free?’

Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix ‘trans’ is across or beyond and the gender of a person is culturally and socially constructed. From the afore-mentioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex, i.e., male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves neither as men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called ‘transgender’.

Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and different other identified and unidentified sources. These sources from the past make clear that transgender people have historical background in various countries all over the world and existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioral patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data-oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, create and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in the books, mythologies, epics, incidents and various other forms of art and literature. As per the above-mentioned article of Prof. Whittle, German sexologist Magnus Hirschfeld has used the word ‘transvestite’ in the year 1910. Magnus later developed the Berlin Institute where the very first ‘sex change’ operations took place. The term ‘transsexual’ was not coined until 1949, ‘transgender’ not until 1971 and ‘trans’ (a very British term) not until 1996. For instance, Prof Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian.

If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during medieval era. Muslim rulers of Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.

Inspite of all this presence of the trans people in the human history, the community faces challenges at different levels in the society. These people have to undergo discrimination at all facets of life. Starting from their homes to the place they work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion. This is somewhat similar to the set categories of sex, i.e., male and female. But unlike the straight people, the community has not been accepted by the regressive society, they are ill-treated and have economic backwardness.

They are alienated from the mainstream of society. This alienation of the trans people from the mainstream is violative of Article 14, 15, 19 and 21 of the Indian Constitution. The fact that they have right to life is not recognized even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the trans society towards the trans community is regressive and is breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of Constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are the basic to an individual; they are needed for survival and to lead the life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.

In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike straight community, they are not given humanitarian behavior by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the Court will decide further the residence and send that child to the rehabilitation Centre. Basically, rehabilitation centers are for getting someone’s life to normally, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.

This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalized. This normalization of the alienation of the transgenders has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherization of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonized hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.

Despite this coerced normalization of the transgenders segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.

Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down the application for adoption based on their sexuality.

Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett is the genesis of all transgender marriages since 1970. In the case of MT v. JT, MT male had a vagina and was able to function sexually as a female. Thereby, she was legally recognized as a female for the purpose of marriage. Considering the judicial pronouncements by Australian Courts, marriage between female to male transgender individual and his wife , a biological female was affirmed valid.

In the backdrop of the marital and adoption rights given to the trans population internationally, Indian courts and judicial system are also democratizing the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of ‘liberty’, ‘equality’, ‘justice’, ‘fraternity’ to all the people living in the India, ‘a sovereign, socialist, secular, democratic, republic’. The same principles have been taken into consideration by Part III of Indian Constitution, i.e., fundamental rights including Right to Equality, Prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of male dominance.

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