Colossal Test for Safeguarding the Transgenders Rights

“One Ought to be able to claim as entitlements (i.e. as human rights) those minimal things without which it is impossible to develop one’s capabilities and to have life as human being”

-Richard Wassertrom

COVID-19 has exposed vulnerabilities in the global system and how underprepared the world at large is in tackling such a pandemic. Every single nation is engaged in a war at a domestic level to secure social interests and basic necessities of its citizens. The Indian government too in a bid to prevent its citizens from contracting the virus and to break its chain had announced a 21-day lockdown starting March 24 which has been further increased till 3rd of May considering the prevailing conditions. This virus has affected various aspects of people’s life. People are losing jobs, the poor is running out of cash and ration and the country’s economy has gone into a deadlock.

Different class and communities of people have been affected by this virus at large but there is one that has been affected the most; the transgender community. The condition of the transgender community in our country is despicable. Begging is the major source of income of these people and because of this lockdown, they are not able to fend for themselves. Many are sex workers who are hardly being visited now by their clients due to serious health concerns. Recently in Hyderabad, posters stating that transgenders spread coronavirus were put across all over the city which only illustrates how their condition has worsened in present times. Transgender communities in Varanasi, Bhubaneswar, Surat and several other parts of India extended assistance to help the needy. They distributed dry rations to those in need of food in and around the city. They provided monetary assistance, and also distributed food to stray animals during the lockdown. Yet they are often treated as second-grade citizens by our society; they are left to live on the streets by themselves as their own family refuses to accept them and thus, they need to do odd jobs to survive.

To address the issue of trans genders and the kind of social inequality they have been subjected to for centuries now, the Indian Government in 2019 passed Transgender Persons (Protection of Rights) Act (Hereinafter referred to as ‘the Act’) in the Parliament so as to safeguard their social interests but was not received well by the transgender community due to the fact that the Act only managed to provide a very narrow definition to the term transgender. Also, the Act was not in concurrence with the directions given by the Supreme Court to identify the person as a transgender in the case of NALSA v. Union of India. Section 5 of the Act states that if a person wants to be identified as a transgender then he/she has to make an application to the District Magistrate. Then under Section 6 on receipt of the said application, the District Magistrate shall refer the person to go through screening by a district-level committee comprising of Chief Medical Officer, District social welfare officer, psychiatrist, an officer nominated by the Government and a representative of the transgender community. This committee, after a physical and psychological test, will identify the applicant as transgender under Section 7. This procedure of identification totally deviates from what was said by Justice Radhakrishnan in the aforesaid judgment that “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender.”

The government came up with the Act in an effort to put an end to the discrimination which the community at large has to face on a daily basis; but where it falls short is that it lays emphasis on physical traits for identifying a person as a transgender, which is violative of Article 19(1)(a). As a consequence, there are many from the LGBTQ community who are not able to reap the benefits of State welfare programmes. They are not provided with adequate healthcare facilities which are clearly violative of Article 21 of the Constitution.

Supreme Court in the case of Chameli Singh and Ors. v. State of UP &Ors. elaborated Article 21 and widened its scope and observed:

“Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.”

Amidst the COVID-19 pandemic, the people from the transgender community are not only facing discrimination but also lack adequate health facilities, which isn’t good for society at large. According to a report by National Centre for Transgender Equality (NCTE), a US-based non-profit, people belonging to LGBTQ have higher rates of HIV and Cancer and may have a compromised immune system which makes them even more vulnerable to this virus. Recently, on 9th April 2020, Office of Commissioner of Human Rights Commission issued certain guidelines where the plight of people belonging from LGBTQ is also addressed and it is suggested that at this time Governments around the globe are obligated to ensure that appropriate action for safeguarding proper health and livelihood of the people are taken.

Article 47 of the Constitution of India mandates State to improve Public Health and to ensure proper nutrition and standard of living to its citizens. Therefore, it becomes imperative for the Government to look after their livelihood and ensure that they are provided with basic necessities as a lack of proper care of this community will exacerbate the problem.

Taking in cognizance the plight of the transgender community in India, the courts have taken an innumerable number of steps to ensure that they too can live a life with dignity and respect but the problem that arises is; since there is less number of registered transgender people not all of them happen to be eligible to avail government welfare schemes. The mechanism provided by the Act is practically impossible to be implemented as it will only lead to injustice for those who self-identify themselves as transgender but are not as per the law since the definition of transgenders covered under the act is very narrow. Also, most of them do not happen to have any bank accounts, Aadhar card, voter id, etc., due to which they are deprived of the help provided by the State Government as it was well opined by Aakar Patel, Amnesty India’s Head that:

“Making an Aadhar Card a prerequisite to access essential services and benefits can obstruct access to several constitutional rights, including the rights of people to food, healthcare, education and social security.”

Taking cognizance of their situation, Jharkhand High Court issued directions for looking after the needs and conditions of people from the transgender community. Also, Karnataka High Court while addressing a PIL filed by NGOs issued directions to the state government to look after the needs of transgenders. The Karnataka High court in its order mentioned that most of the transgenders are indulged in begging so they are unable to fulfil their needs due to lockdown hence it is state’s responsibility to cater to their needs.

Concluding Remarks:

Transgender people have been victims of social exclusion from many years. Covid-19 has changed nothing for them, rather it has worsened with time.  To say, the problem of starvation and survival has been added to the social discrimination which they have been facing for a long time. The Government in this crisis should come up with a scheme which could directly benefit the transgender communities economically and create an environment which uplift them socially.

When it comes to an outbreak-like situation where many patients compete for limited healthcare resources, then naturally one of the groups which get the least priority in terms of access and availability of the healthcare facilities are the transgender groups.

This healthcare system which is extremely discrimination and exclusionary is preventing many transgender persons to come forward to try and get tested. Due to absence of separate isolation wards for transgenders, many of them die out of sheer delay in terms of understanding where to put them as to whether they should they be put in a male ward or in a female ward? Lack of healthcare facilities coupled with discrimination amid the coronavirus outbreak is pushing transgender further to the margin.

We should try to build up the trust among the transgender communities regarding the accessibility of healthcare facilities which is only going to happen when we make the healthcare system far more inclusive, friendly and at this point make all that information accessible in multiple languages. If all these testing centres openly declare themselves as trans-friendly, that would make quite a large amount of difference.


ABOUT THE AUTHOR

Animesh Upadhyay

PHOTO-2020-04-21-19-55-22

Animesh Upadhyay is a fourth-year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University. His subjects of interest are Constitutional Law, Labour Laws and Criminal Laws.

Bhakti Avasthy

PHOTO-2020-05-06-23-20-40

Bhakti Avasthy is a 4th year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University. His subjects of interest are Constitutional Law and Criminal Laws.

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