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The Social Recognition for Third Gender Community in India: Legality for Adoption and Marriage

Paper Details 

Paper Code: AIJACLAV3RP0323

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation: Garima Jargar, “The Social Recognition for Third Gender Community in India: Legality for Adoption and Marriage", 3, AIJACLA, 22, 22-35 (2023), <https://www.aequivic.in/post/the-social-recognition-for-third-gender-community-in-india-legality-for-adoption-and-marriage>

Author Details: Garima Jargar, 5th Year Student, Maharashtra National Law University Nagpur





Abstract

Our constitution possesses a tryst over the destiny, the preamble for the preservation of fundamental rights which will grant solemnity for pleading towards justice in every social perspective and safeguarding the obligatory acts. Whenever it comes to the scenario of India independence the presumptive status which was promised was fully based on the dignity, integrity, equality, and dynamic policies making but many of the laws as well as statute were not implemented in the ground level. Baring over many rights and obligations there was no specified recognition of the transgender in spite of been upholding the national and international level of protection, the third gender has always been neglected and segregated worldwide. The moral dictates and shunned over the inclination can determine the vulnerability over the mechanism for protection of rights of minorities and if there is any kind of violation remedies or initiatives should be provided for welfare. The highlighting purpose of the research is to recognize the rights practiced towards transgender and differentiate all several types of nomenclature for providing with the unnoticed legal provision by all tiers of the government. The foremost agenda is objectified to self-perceived causes of abnormality, challenges for imposing the applicability of equal treatment or protection of law & order, and lastly enforcement of legislation. Giving fair and impartial treatment to everyone can lead to upliftment over the position, improvement among the personals law, secularism through the legislative phrase, and removal of all the barriers for prevention of the unfavourable rights. However, considering all the major issues faced by the population there should be establishment and accomplishment over the act of sui generis approach.

Keywords

Equality; Fundamental Rights; Recognition; Remedies; Secularism


Background and Historical Development of The Minorities

“Equal or equality over the act signifies more than just law amended or passing as per the dynamic changes happening in the society, here the real amount of struggle starts with winning the heart as well as the mind of the people, where it gets counted.” For further recognition, the supreme court has bought many changes into the implementation part of the constitution for guaranteeing the rigid law of right towards equality.[1] One of the most difficult and implicit foundations of the individual entity according to the present scenario is the acceptance of collegial relationships without imposing any type of cultural ruling, ethical practice, societal pressure, and financial crisis. The conventional and biological distinction is categorized within the nature of human gender or entity which bifurcate among the female and male section of the people that will be exclusively based upon the natural reproduction process. On the onset of constructive difference related through the concepts towards gender and gender recognition, there's a comprehensive study over the people who are headed beyond the cultural as well as ethical relationship. Terminology defined transgender that is further divided into two separate groups of people one is categorized as ‘trans’ that signify across or over beyond section and another is ‘gender’ which elaborated as a wide variety of complex subjective matter. According to the World Health Organization. Scholars and eminent people defined the concept for understanding the core nature or characteristics of word ‘gender’ which refers to the socially flexible constructive essentials among male and female – furtherance there are several varieties of norms, roles, approaches, and relationships that sometimes collapses with the customs, rituals, and practices which are usually follow up by the people living in the society.[2] 

Gender entity or gender recognition is been defined as the behaviour, characteristics, and perspectives over the societal expectation that were expected out of an individual within the basis under the assigned, consignment, and biological sex. Society cannot identify the gender of the person though it is psychologically perceived that how he/she want to differentiate between the sex. A person or an individual whose gender bifurcation is aligning within the assigned sex is usually termed as cis-gender, but if an individual identity is in the nature of conflicting then it will be headed under Transgender. Meanwhile, during this contemporary development of the economy, there was a huge growth over the consciousness for the human primary set of rights which were immensely significant as well as crucial towards the advancement of the integrity of the person.[3] 

Labelling through many differences there is one such type of welfare that has been recognized and expressed within the category of gender identity, that can assure the fundamental right of right towards the way of living without any kind of restriction. However essential issues and challenges which are pertained to human rights or freedom are still silent as well as unsolved, one such differentiated problem that is pertained to the personal laws which are subsequently governing over the lives as well as relationship. Marriage, possessing the right to have a family, and living together are been recognized as the foremost or primary human personal law.[4] 


Third Gender Communities: Weaker Section, Segregated Class, and Minorities 

Within the decision of NALSA v. Union of India, the supreme court-drawn into the outcome that there will be a wide classification towards the transgender community, herein the court has pronounced the division of the third gender section into two part – one was headed under the psychological identification criteria who themselves belongs to a gender towards the opposite side of the spectrum vis-a-vis towards their assigned sex and ultimately prefer to accomplish the sex reassigned; secondly, the section people who are perceived publicly as the recognized community of the third gender and ultimately considered as the separate class/group/category within the subcontinent calling through the name of Hijras, Aravanis, Jogtas, Kothis, Shiv-Shakti, and Chaka.[5] Ultimately all the criteria of the words which were specified by the society and other people were demolished and the court came up with the legal status towards the transgender which was categorized as ‘third gender/other not mentioned in the category’ only towards the latter part of the category. However, if there is an examination over the caveat that would be headed under the sector which is usually not mutually exclusive for each other. Additionally to the consideration of the criteria which would be relied on the court has mostly to be pinpointed with the specified set of identities towards the transgender groups for the labelled subcontinent that can be rather put on the section through kind of conflicts among the gender identification or recognition and assigned over the sex.[6] 

The problematic issues were created in front of all the people who subsequently wished for a further level of the entity as the third gender which is compulsory falls into the category of legal status which was pronounced by the jurisdiction of the court. However, after the identification which was done by the statutory authorities was further been classified on the basis of dispute arose among in the recognition of gender, assigned nature of sex, any person or individual suffering with dysphoria, sources over the sex which is been re-assigned, and lastly the people who can qualify themselves as transsexuals. Whereas all the segregated section who wished to maintain and establish their own non-restrictive gender identity as the differentiated part of the binary genders then it could mainly assist for qualifying as the third gender or the transgender. Transgender or third gender section of the people is considered as those set of people whose personal nature of identity has been bifurcated over the gender of male or female who is born like that only without any type of addition to the bodily changes. “Trans/Third” is usually often labelled as the shorthand of the transgender, at the time of birth or during the gestational period, doctor or medical experiment often termed as either male or female just by looking towards the physical appearance.[7] 

Over the consequences which are upheld for the specific community-recognition which is purely based on the identification within the third gender which is been done by the jurisdiction of the court that later put on under the situation of chaotic behaviour towards the society. There is a specified account of the defined fact which was well-scripted as well as elaborated on the subject matter of third gender entity that has been objectifying under the culture, as well as that, are generally ghettoized. Therefore, if a person has been necessarily categorized as a part one of the pigeonholes that would be upholding an identified section by the Apex court and must be conformed towards their rigid form of norms in order to specify the third-gender recognition. Understandably, the challenges which were faced by the court for committing a flexible reform of folly that can be further classified as the transgender category but nevertheless this particular type of bifurcation is widely objectify as transsexuals or the third genders.[8] 

Subsequently for avoiding any type of further chaos court has lied down two principles which primarily deal with the fact of desire for identification for their psychological perspective. The first principle is that whosoever wanted to check their sex reassignment through the medical procedure and the second elaboration is that those who do not prefer to check whether they are either male or female then that particular definite of people can confirm their identity as the third gender. Often if there is a wide categorization among the community then there are few people who are neither come under the section of male nor within the part of the female, they are born out as the mixture of both the gender, then this particular range of the individual are termed as non-binary or genderqueer.[9]  


Legislative Briefing: Bills and Rights Accomplished for The Third Gender

Transgender are considered as those set of people who have any age or gender related to their appearance, etiquette, personal levelled characteristics, or various personality which are differentiated from one extreme view to another by showing that how male or female section should be. Herein the transgender consist of all varied region of cultures, races, ethics, classes, and practice since all type of story related to human life has been recorded, in modern era transgender has been used to defined or describe many identities, as well as experiences just like an umbrella, have several colours put within it, which widely includes homosexuals, queer, and people who are not sure about their own sexual preference as the appearance or thought of process is never been dragged for the recognition procedure which is later termed as nonviolent. In a broad and varied sense transgender includes all those communities or sections of people who have been set outside over the stereotype sexual practices, then these particular set of minorities are unable to get basic rights which are headed towards the compulsory set of duties, accountability, and obligation.[10] 

Indian Constitution and the preamble enshrine over the pleading of justice which will be sought according to this violation, mishap, and prohibition of conduct that would be approached for societal equality, economic-based, and political perspectives. There are few provisions that should be not at all tolerated as it certainly raises a wide variety of discrimination over the sectarianism among the religious belief of the people like – Article 14, 15, 21, and 23 of the Indian Constitution. Despite been provided with all set of rights, freedoms, duties, and accountability which has been upholding by the government even now also the third gender continues to be segregated against all the places.[11] All the defined spheres of bills and legislative statute guarantees that all the people will be protected from all kinds of odds and their rights will be safeguarded as no one have the official strength to violate it but, in our constitution, it was never been mentioned about the categorization of people. Moreover, there is a contradictory statement which states that if a person upholds official identity which certainly elaborates about the document that provides about the public entity then only a person will be eligible for the further level of documentation.[12] 

A gender-based identification legal document is set as an integral part of the public or societal ownership as per the mandate requirement of Indian law, Indian policies accept the people who belong to the category of bisexuality but will be against the homosexual or transgender people that ultimately deprives the consideration of rights that can show least bothering about the nation.[13] 


Issues and Analysis of Supreme Court: The Transgender Persons Bill, 2016

The ordinance was passed by the legislation for the further protection of the Transgender Person Bill which was enacted in the year 2018, that mainly focused on the protection of transgender rights. There are few points that were framed for the safeguarding of the provisions likewise there were rights that should be possessed by every individual for the sake of equality, impartiality, and no biasness over the pleading of justice; duties which include the right to vote for electing appropriate representatives, right to hold their own property which should be labelled under the legal procedure, right to get married to whosoever person they wished to, claim over the ownership of passport as well as share card (includes driving license, etc.), and lastly right towards getting educated (literate), employment, health, care, hygienic environment, as well as all the rights that are usually provided to the normal citizen without having any type of restrictions.[14] 

Highlights, as well as elaboration about the bills, are – 

  1. Herein the bill elaborates about the definition of the transgender that will be applicable to all the people living in the society which states that a person who has a partial trait of female and male or can be set as a mixture or combination of both the genders then it will be said as transgender, with addition to the definition the person’s gender should not match to the assigned or re-assigned group at the time of birth, trans-women or men, the person who can be set with the intersex varied of variation, and lastly under the category gender-queer. 

  2. The communities of transgender people must be mandatorily obtained a certificate for the identification for the purpose of acquiring proof over the recognition as the transgender person or invoking rights within the bill. 

  3. Such type of certificate would be later granted by the official legal authorities such as district magistrate over the recommendation along with the serving committee, the authority would be comprised into the medical officer, a psychologist or psychiatrist, as a district welfare officer, and lastly by the governmental office for the health of transgender. 

  4. Bill of transgender usually prohibits the discrimination against all type of misconduct which happened against the transgender within the area of education sectors, employment opportunities, and health care hygiene. It subsequently directs over the central as well as state government that would provide all the defined welfare schemes for the upliftment of the transgender section. 

  5. Offenses and conduct which were compelling over the transgender people to the job like begging, denial for basic necessities or needs across the public places, physically as well as sexual abuse for the sake of livelihood that would attract up all the accused person who usually make a practice to the third gender people to do such type of activity, according to the bill structured have headed towards the two-year imprisonment and a huge level of fine.[15] 

Examination and scrutiny over all the legislative provisions that were enacted for the purpose of safety as well as protection towards the people living within the country irrespective of the gender, caste, race, religion, ethic, resident of birth, and all different type of social reforms without arising any type of barrier or obstacles for approaching to the court. In spite of been establishing the acts and statutes, the laws are unable to get implemented through the ground level, due to lack of jurisdiction or mentality of the people which struck their mindset from not thinking about every living being. Hereafter the supreme court held up with the pronouncement related to the right towards the self-identification for the recognition of gender that was later considered as a part over the right towards dignity or integrity within the fledge autonomy of Article 21 of the Constitution which certainly elaborate on the deprivation of the person’s rights and especially those primarily freedoms which ultimately deals with personal liberty or life integrity. However, the objects within the criteria that have been set up for the determination of one’s gender or sex of that specified person in order to be rigid over the eligibility condition for the subjective matter of entitlement.[16] 

Nevertheless, after the accomplishment of the bill, it was objectified that a person or any individual recognized as or within the communities of transgender then it would have the automatic rights of “self-perceived” for the purpose of gender identification. The situation never signifies that there is any type of need for the enforcement of the rights, a district screening over the committee would have faced the issued certificate that was created for the recognition towards the identity and entity of knowing about the transgender person. In the bill definition of the third gender was ratified which upholds variance with the elaboration that recognizes the international bodies, statutory authorities, and experts within the boundary of India.[17] 

The bill subsequently involves the terminology like ‘trans-men’ and ‘trans-girl’ also the section of people who have an intersex variation towards the wide variety of people with different initiatives that have an inclusion of dislike & likes and merit & demerit. Gender-queers is defined within the definition towards the communities of transgender people, however, this particular term of the third gender is not been defined anywhere in any of the act or statutes. Certainly, over the order on the basis of criminal, civil as well as personal laws which were currently within the force and enactment only over the recognition among the genders men or women which is been defined within the act or statutes. It will be quite unclear within such type of legislative provisions that would apply over the transgender communities that may not over the identification which will be categorized between the genders.[18]  


Position and Status of Third-Gender: Marriage Related Laws  

Imperative type of categories which has been bifurcated among the genders who was rejected and another community of transgender was established, the first set of the section which was listed by the pronouncement of the supreme court was generally renamed as transsexuals. It has been essentially enacted or composed for those groups of people that wished towards the level of transition over permanency among the gender which was recognized. The identification of the sex of the defined person that has been examined as different among the individual person’s sex that would be later scientifically which was not under the limits for the state of living within the existence as a male or female. The concept which defines sexuality is not headed under the relative towards the person's physical features although there was an inclusion of subtle factors related to psychological elements and variances on the basis of unique social levelled media consideration. The procedure for general description constitutes over the subset on the community of transgender whose sense capacity consists of difference among the gender entity and through the assigned category of sex that is ultimately considered as strong.[19]   

If there is a further consideration of various concept related to gender identification then here sex uphold an independent and sole natured umbrella that can be encompassed over the terms of various sexual orientation among the two varied poles for the female and male side. From the scenario of the ancient era to the Vedic times and old scriptures which were written in the Puranic period that have immensely noted under the existence of three several sexes which was further bifurcated as male sex, female sex, male, and Tritiya Prakriti also known as third gender section of the society.[20] Here the third category or communities of sex which commonly stands for the word hijras within the jurisdiction of India that can actual describes a natural mixture as well as a combination of a male and female gamete that has both the characteristics in such a manner that it cannot be scientifically distinguished internally but later after a proper tenure gets over it is automatically seen externally. Distinction over the different gametes of male as well as the female that have binary options, moreover now in contemporary era Hijras or Chhakka is not only the male section who consist the body structure or physical of masculine and mentally they are neither female nor male, although the internal body parts do not consist of female reproductive organ and absence of menstruation cycle they belong to the feminine section.[21] 

Marriage or knots tied with two individuals for a lifetime their laws are rapidly changing due to the dynamic structure of society throughout the globe as an outcome it ultimately changes the mentality of public and their set of opinion. Attitudes and thought process related to the third gender is no so good or prominent in a country like India due to various issues and ethical practices that mainly focuses on the gender recognition (externally as well as internal) and sexual orientation (choice of the preference). Newly amended laws, alteration of the policies, and replacement of old outdated rules should be furthermore ratified for the consistent growth of the nation. Marrying someone who has different ideas and expression has been considered as the most difficult task as people do not favour getting the response against their opinion so sometimes it creates a huge level of legal challenges for amending or ratifying the provinces to build up a rigid pace which can hold more flexible changes.[22] 

Hindu Mythology and criminal jurisprudence also disclose that third gender or transgender have reverted back in the community for a very long period of time and especially at that particular era they were held up with a special, unique, and vulnerable place as during the ancient period they were brought for spreading the blessings in every occasion like in marriages, the birth of the children, and ethics practiced. There was a time wherein which the transgender was busted to the court as well due to the decline of the hierarchy and unwanted advantages that were taken from the public for the sake of blessings.[23] During the tenure of British Rule, the empire likely to conclude that if the men were more likely to be suffering from a deadly disease that could strike down the upgradation and enhancement of the society. For the protection and safeguarding of the interest, there was the enactment of the Criminal Tribes/ Tribal Act that was established in the year 1871 which empowers the government all the specified power i.e. implied as well as expressed for arresting the third group/parties who are especially into the fear of immoral conduct with respect to sexual pleasure.[24] Typically, there were few conditions that were framed before the same-sex marriage over the equality and impartial treatment towards the third gender section, subsequently, this can affect the marriages in the following form – 

  1. Limitation of rigidity over the original and official documentation that would be in an urgent need for the processing part which is usually done by the government as if a person gets married to another individual that specified person should consist of all the required documentation regarding the recognition of the person’s current gender or sex. 

  2. Same-sex marriage has one demerit which has been considered in the eye of society as well as naturality of the nature that the defined couple cannot reproduce so to elaborate about the subjective matter of transgender it is later considered as the prohibition of building up of same-sex marriage.

o   Illustrating with an example if there is a women transgender who is willing to marry some male then it subjectively not allowed as women third gender is subsequently not been permitted for getting married to a man in a province, the main reason to prohibit is that this practice does not see fledge changes over the treating of the gender or giving an appropriate right to the person.

o   Ultimately this particular type of ban can also affect the fundamental rights of the women transgender who was not been given permission to get married to neither a male nor a female within the provinces that essentially embrace the gender changes as well as behaviour towards transgender women. There are many controversies that states if the statutory authority has done the opposite or vice-versa of the act which was essentially performed like not putting any type of ban and respecting the needs as well as addressing towards the issue then it might behave not became that much vast problem. 

  1. Potentially the situation over the termination of the existing marriages or dissolution of the relationship between two individual a man and women; there are many circumstances within which can possibly make two individual separate – likewise cheating, having an extramarital affair with another person, or if one individual has any type of sexual or physical intercourse before or within the duration of the marriage.[25]


Validity and Applicability of the Legislative Order: Criteria For Adoption 

As per every year's census, the rate of female infanticide is dropping not in a consistent manner but diminishing at decreasing rate likewise in all the defined country wanted to build a fledge and rigid amount of human force for the development of the nation. Every individual has a willingness to have a family within which the couple should be in a position of reproducing their own kind or offspring but sometimes due to many infertility cases and genetic problem that are not curable, faces a wide variety of challenges or issues. Kids and children are considered to be one of the incarnations of the god that completes the family as well as individual life, though in many texts and scriptures there is the discussion of alternative reproducing methods that are not limited to science. One of the practices which are currently considered as one of the most vulnerable and painless techniques i.e. adoption which upholds many sets of advantages through different types of disadvantages. Even in many conditions or states, people only prefer a male child for building or growing the further family and can give the heirs.[26]  

The adoption process is not so easy as there are many rules, order, and regulation for the various type of activities that are differently amended over the characteristics that an individual is trying to adopt under the Hindu Adoption and Maintenance Act subsequently called HAMA within which it was established for the religions like Hindus, Jain, Sikhs, and Buddhists but here are few of the exceptions that do not allow their personal law and general law of the defined religion – Islam, Parsi, and Christianity.[27] As the statute that has been elaborated in HAMA there are few condition and criteria which a Hindu individual should fulfil or satisfy in order to possess the adoption – 

  1. The person should be a male, female, or married couple.

  2. Possess a sane mind or sound mind.

  3. In the condition of the male – here the husband who is proposing the procedure of adoption then the foremost permission or consent which is required of a wife. If the wife is either renounced by the world or has gone to the condition wherein, she became an unsound person then the financial, economic, societal, and position in the society where the male lives matter. 

  4. If a single parent is willing to adopt the child then nobody’s consent or permission is required.[28]

When the decision of the supreme court came into the establishment process where they headed the pronouncement towards the recognition of the third gender there was a large portion of the society who tried to help with the current condition of the transgender within the society but due to the mentality of the people the initiative was not efficient enough though was a first small step for improvising the condition of the nation. People who are termed under the binary gender are usually treated as the part of third-gender for preserving or safeguarding their set of rights which are entitled within the jurisdiction of Constitution under Part III that are usually enforced by the State Legislative. Cumulative rights that are given to the transgender for declaration of their recognition as a self-identified person through the guidelines prescribed by central and state government for granting the legal recognition of gender. Court ordered the central as well as state government to treat the transgender as in the category of socially or educationally backward section of the citizen, all the extended benefits are disturbed within all classes.[29] 

One of the biggest conclusive rights that is factually or non-factually denied by most people is Article 14, which ultimately states that whether or irrespective of gender everyone should be equally treated. This particular right has been implemented in a negative manner as it states that this principle essentially helps in the prohibition or banning the act which can cause discrimination, also according to the society ruling it signifies that government authorities and state should always provide with a special type of treatment to the different personalities within the different place.[30] Constitution was eventually framed for the betterment of the status towards the people and allowing a reasonable bifurcation towards the right for adopting for the transgender but subsequently, the third gender is not allowed to adopt the child. there should be no law that will stop someone from the process of adoption who is capable, sound mind, major, and is in the position to bear all the expense. Any type of law or provision which violates or infringes the primary set of fundamental rights is considered to be void, [31] so if the criteria that have headed for giving adoption right towards the transgender communities then it will not be set as ultra-virus in nature. 

In the landmark judgment of NALSA v. Union of India within which the supreme court elaborated that there will be a flexible recognition of the third gender which ultimately helps the territory, government as well as state to enforce the primary set of rights under the Part III of the Constitution which specifies the fundamental rights towards the citizen of India as transgender are a part of the society but the actual result was exactly the opposite; people living in the society try to snatch the employment opportunities, educational welfare, economic status, and political career. This specified problem was reflecting the condition of a homosexual couple in India which also is not allowed to adopt the child. There were many initiatives that were enacted by the statutory authorities but there are many questions that arose yet no response were given as decriminalizing the act or conduct will neither help in changing the mentality of the people nor it will accomplish that law & order that should be established for implementing the provision from ground level then only all the side of the society will be able to accept the fact.[32]  


Landmark Pronouncements and Decision: Implementation of The Law and Order

●        NALSA v. Union of India

The judgment which was delivered within the parties i.e. National Legal Services Authority labelled as NALSA v. Union of India according to the chronology sequences – factual information which was discussed is mainly that NALSA filed the petition suit against the state for pleading towards the lawful identification of the person who falls in the category of the third gender or is of binary nature that is neither a male nor women. There were a few issues and challenges that were raised in front of the court which elaborates that ruling towards the people who cross over the situation among the banner or obstacles related to male or female that could be headed under the legally recognized group as the ‘three/third sex’ people. It was later considered that whether this particular situation will be headed towards the disregarding of the identity of the section who are non-binary in a trait or are labelled as transgender which will signify a violation over the fundamental rights or obligation that can be guaranteed and safeguarded by the constitution of India.[33] 

Later, the subject matter of referred to as “Transgender Dispute or Conflict Resolution Committee” which was established for the purpose of protection under the supervision of the Department towards the Social and Natural form of Justice that can be used for the empowerment of the community for improving the decision and status of the society. This specific case law was considered as the landmark judgment within which the high court was officially in the position to adopt the statute which was related to the gender/gay/lesbian section of the parties which was set for the same-sex entitlement towards the formation of fundamental rights under the guided law of international tribunals that enact the order for globe and constitution of all the nation. Subsequently, it was also instructed that the state, as well as central government, should compulsorily establish the mechanisms for enforcement of third-party rights or transit the person.[34] 

In this pronouncement, there was the actual explanation of the definition of Third-gender – within which the court upheld the right towards everyone whether citizen or non-citizen of India to have a defined labelled recognition of sex. Also, furthermore, it was declared that the section of hijras or eunuchs could be officially identified as the group of ‘third sex’. The court has mentioned with the clarification towards the gender identity that does not refer towards the biological factors or elements but rather than defining the perspective of “natural or simplified view of human sexuality or orientation”. Therefore, it was lately held that there is no third-party recognized sex which should be tested and examined in the guidance of medical science and biological examination that might infringe the fundamental right of privacy towards any individual.[35] There were many foremost primary rights that were involved for the court interpretation that defined dignity under the preservation of the Constitutional remedies under Article 21 of the constitution that can include explanation over the distinction of self-expression, integrity, and transparency that allows a person for living with dignified life without any type of restriction or barriers. In the place of gender entity which guides the framework of the obligatory rights under Article 14, 19(1)(a) and 21 that create over the situation under the gender-neutrality behaviour, as the final labelled outcome for the right towards equality as well as freedom towards the speech or expression that can prevail over the conditions.[36] 

Judgment drew into the attention towards the fact of the situation towards the current transgender condition that was subjected to the “extreme segregation within the segment and spheres of society” which will be set up for the violation of the right related equality. Essentially there is an inclusion of right towards expressed form of one’s sexuality by the dress, action, words, expression, ideas, and conduct under the freedom of speech. Within the supervision of Article 15 and 16 of the constitution which subsequently does not permit discrimination related to sex.[37] Moreover, the court held that the sex or gender identification refers not singularly to only deal with the subjective matter of biological markers that includes the chromosomes, genitals, especially two partners, and lastly the secondary sexual part but though there will be consisting of the gender that will be fully based on the one’s perception. According to the decision of the court it was subsequently held as discrimination on the specified ground of ‘sexual misconduct’ that includes over the situation based the recognition of gender, within this judgment the court came up with the Yogyakarta doctrine for safeguarding the rights of the people irrespective of the gender, social norms, sex, and any type of segregated element.[38] 

Enhancing over the various direction that was established, accomplished, ratified, amended, and finally enforced for the protection as well as security. The jurisdictional court leads that there should be public awareness programs or schemes that were heading up for the requirement for addressing the discrimination against the third/trans-gender society. Further, it was also directed that central, as well as state government, should take several forms of measures, reforms, and initiatives for the development of the transgender community that ultimately includes few reforms – 

 .                     For the further arrangement of the legal recognition towards the ‘third sex or transgender’ in all the defined texts.

a.                   Receiving the bifurcation among the third-gender community as the category of a socially, economical as well as educational underprivileged class of the citizens or residentiary, wherein the people have fledged right towards the reservation at the educational institution, public employment opportunities, and organization.

b.                   Taking the various amount of initiatives or reforms over the steps towards the plans over the social welfare program for the upliftment of the society.[39]

●        K. Annapoornam v. The Secretary to Government and others

According to the elaborative facts of the judicial pronouncement that defines the case which signifies the incident which took place – Annapoornam who come into the category of third/transgender that has applied for the validity of appointment for the position of Sub-Inspector under the department of police. The examination criteria it is been divided into three different stages i.e. paper test, mains for the secondary review (all type of test likewise physical, medical, etc.), and lastly is the interview, in the procedure of selection it was bifurcated as within the condition it was clearly included within the second phase of the physical activity or the physical fitness/testing, and as an outcome, he finally failed in the exam of spirit test.[40] 

She went to the doorstep of the court upholding the request of reviewing the cited judgment of Prithika Yashini which was also the person who belongs to the community of transgender that also applied for the petition pleaded under the protection of the post of the chief inspector that had exceeded for the required time period. In this particular case, the judges held that the decision was in the favour of the applied, applicable, and ordered for the further level of appointment. K. Annapoornam[41] has been suspected over the category of cisgender community member either man or female that deserved more on the sympathy part than the transgender class, who are headed under the physically strong criteria than a cisgender woman over the normal group of people. 

The issues which were enacted in front of the court that was related to the petition pleaded under the filed likewise whether there will be a denial of her initial lawsuit filed that was held as valid and secondly the condition which was elaborated whether the defined ruling of the Madras High Court within the reference case headed in Prithika Yahsini that was set as appropriate as well as suitable for the instant related case. Subsequently, the decision was made that the judge of the high court (Madras) filed the suit under a special leave petition but it was rejected and court after the reference case investigation the supreme court ordered the high court to essentially note that this particular pronouncement requires a highly educated board as it possesses a vast variety of discrimination that were previously faced by the transgender within the home, society, and also in the communities.[42] 

Therefore, it was further instructed that the selection of the appropriate board wherein everyone should be getting an efficient right towards adopting the different type of standard for measuring the performance, respecting the point of view, and free expression of thoughts which will help to promote the equality among every people living within the society. Lastly, the final result of the judicial pronouncement was that the court held an elaborative explanation about the situation and circumstances that were performed within the case of Prithika yashini that solely based on the protection and security of the transgender communities and moreover it is not possessing any type of line with respect to the current basis of cases. However it was stated about the issue that whether the court should be provided with more of sympathetic perspective or approaches towards the cisgender women above the transgender women that were later resolved by making this argument void as it cannot be headed under the criteria of disputable matter within the written (expressed) form of application, and finally, the request was denied.[43]  


Conclusion  

The subject of analysing about the transgender have severely concluded that studying the historical literature and ancient scriptures related to the third-gender was quite complex, suffering, diverse, arise of problematic issues, question towards the ethical practices, and customs which were followed by the people living in the society. In a country like India wherein the people, mentality struck between progressive and narrow-minded has posed a varied manner of challenges for overcoming the legal perspective over both economic planning and amendment policymakers. Most of the issues which were faced by transgender are self-directed or specified discrimination that signifies a negative impact over the social attitude that can affect the person mental health which can cause an excessive level of depression, perceiving the prejudices over the equal treatment which can happen due to the perception over the rejection on the future perspective for upbringing the state related to the ongoing vigilance, and lastly applicability over the concealment of the different trait of person that possesses of distinct expression of thoughts, ideas, and experiences towards the acts. With duly respect to the various judicial pronouncement which was given by the supreme court, there was one thing which highlighted the need for strict doctrine for the living of transgender that was Yogyakarta principle that objectifies that ‘every individual have full right for founding a family that will be irrespective of sexual preferences/orientation or recognition towards the gender identification’ this particular goal should be held in front of the governmental bodies as it will be feasible for everyone to follow. Lastly, every person is born with some sort of flaws and uniqueness within themselves but unfortunately, there are two rigid barriers i.e. cruel behaviour for not being one of them and mentality; which segregated the weaker section of the society for getting justice, as well as equal position within the society and subsequently this particular belief, widen the gap between the reality and fictitious things.


[1] Sonia Balhara, Laws Concerning transgender marriage, I Pleaders, <https://blog.ipleaders.in/laws-concerning-tr ansgender-marriage/#Understanding_the_term_transge nder> accessed 24 April, 2022.

[2] Kashish Makkar, Transgenders: Identity and Position in the Family Law in India, 5(1) NLUJ Law Review 54 (2018).

[3] Venkatesan Chakrapani, Legal recognition of gender identity of Transgender people in India: Current situation and potential option, UNDP India, pp. 5 – 40 (2012), legal-recognition-of-gender-identity-of-transgender-people-in -In.pdf

[4] Nitish Mahajan, Rights of Adoption of Transgender, International Journal of Law Management & Humanities, Vol. 3 (3), (2020), https://www.ijlmh.com/wp-content/uploads/Rights-of-Adoption-of-Transgenders.pdf

[5] PRS Legislative Research, <https://prsindia.org/ files/bills_acts/bills_parliament/Brief-_Transgender_Persons_bill,_2016_1.pdf> accessed on 24 April, 2022.

[6] Kashish Makkar, Transgenders: Identity and Position in the Family Law in India, 5(1) NLUJ Law Review 54 (2018).

[7] Yatin Gaur, Evolution of LGBT Rights in India and talking the narrative forward: living free and equal, I Pleaders, <https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-eq ual/#Adoption_Guardianship_and_Surrogacy> accessed on 25 April, 2022.

[8] Vaishnavi Kaushik, A discussion on the adoption and marriage rights of LGBTQ+ community, TDG, <https:// thedailyguardian.com/a-discussion-on-the-adoption-and-marriage-rights-of-lgbtq-community/> accessed on 25 April, 2022.

[9] Mini Muringatheri, Transgender raise the adoption question, The Hindu (accessed on 25 April, 2022)

[10] Jayalakshmi, Breaking New ground: Transgender person’s fundamental Right to marry, Centre for Law & Policy Research, <https://clpr.org.in/blog/breaking-new-grou nd-transgender-persons-fundamental-right-to-marry/> accessed on 25 April, 2022

[12] Ajay Solanki, India’s new law on the protection of right of transgender persons, International Bar Association, <https://www.ibanet.org/article/0f3ae21b-0170-4bf7-95dd-45b07ef1caf6> accessed on 26 April, 2022.

[13] Tarini Mehta, Where are India’s queer parents? Having a family is not even an option for many Indian, The Print, <https://theprint.in/opinion/where-are-indias-queer-parents/608267/> accessed on 26 April, 2022.

[14] PRS Legislative Research, <https://prsindia.org/fil es/bills_acts/bills_parliament/Brief-_Transgender_Persons_bill,_2016_1.pdf> accessed on 26 April, 2022.

[15] V.S Dinesh & V.S Krishna, Transgender are no way different – protection of their right, Manupatra, <http:// docs.manupatra.in/newsline/articles/Upload/C348C95 7-63F1-457A-BD0C-2A24005C0702.pdf> accessed on 26 April, 2022.

[16] Law & Policy Brief, <https://www.law.ox.ac.uk/sites/ files/oxlaw/law_and_policy_brief_rights_of_transgender_ persons_bill.pdf> accessed on 26 April, 2022

[17] Nitya, Decriminalization of section 377 IPC: Securing Right and Social Inclusion of LGBTQ+, Academike, <https://www.lawctopus.com/academike/decriminalizing-of-section-377/> accessed on 26 April, 2022.

[18] National Legislative Drafting Competition, <https:// www.lawctopus.com/wp-content/uploads/2018 /08/L egislation-Drafting-Concept-Note.pdf> accessed on 26 April, 2022.

[19] Taniya Tuli, Gender Neutrality: Right of one, Abrogation of another, Academike, <https://www.lawctopus.com /academike/gender-neutrality-rights-of-one-abrogation -of-another/> accessed on 26 April, 2022.

[20] Shreya Rathor, Same-sex Marriage in India, Indian Law Portal, <https://indianlawportal.co.in/same-sex-marriage-in-india/> accessed on 26 April, 2022.

[21] PRS Legislative Research, <https://prsindia. org/files/bills_acts/bills_parliament/Brief-_Trans gender_Persons_bill,_2016_1.pdf> accessed on 27 April, 2022.

[22] Arijeet Ghosh & Diksha Sanyal, How can Families be imagined beyond kinship and marriage, Engage EPW, <https://www.epw.in/engage/article/how-can-families-be-imagined-beyond-kinship-and-marriage> accessed on 27 April, 2022.

[23] Shivani Pankaj, Towards equality from declassification to decriminalization, LGBT, Legal Services India, <http://www.legalserviceindia.com/legal/article-6-towrads-equality-from-declassification-to-decriminalization-lgbt.html> accessed on 27 April, 2022.

[24] Sonia Balhara, Laws Concerning transgender marriage, I Pleaders, <https://blog.ipleaders.in/laws-concerning-transgender-marriage/#Understanding_the_term_transgender> accessed on 27 April, 2022.

[25] Nitish Mahajan, Rights of Adoption of Transgender, International Journal of Law Management & Humanities, Vol. 3 (3), (2020), <https://www.ijlmh.com/wp-content/uploads/Rights-of-Adoption-of-Transgenders.pdf> accessed on 27 April, 2022

[26] Yatin Gaur, Evolution of LGBT Rights in India and talking the narrative forward: living free and equal, I Pleaders, <https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/#Adoption_Guardianship_and_Surrogacy> accessed on 27 April,2022.

[27] Jayalakshmi, Breaking New ground: Transgender person’s fundamental Right to marry, Centre for Law & Policy Research, <https://clpr.org.in/blog/breaking-new-grou nd-transgender-persons-fundamental-right-to-marry/> accessed on27 April, 2022.

[28] Nitish Mahajan, Rights of Adoption of Transgender, International Journal of Law Management & Humanities, Vol. 3 (3), (2020), <https://www.ijlmh.com/wp-content/uploads/Rights-of-Adoption-of-Transgenders.pdf> accessed on 27 April, 2022.

[30] Tarini Mehta, Where are India’s queer parents? Having a family is not even an option for many Indian, The Print, <https://theprint.in/opinion/where-are-indias-queer-parents/608267/> accessed on 27 April, 2022.

[31] Nitya, Decriminalization of section 377 IPC: Securing Right and Social Inclusion of LGBTQ+, Academike, <https://www.lawctopus.com/academike/decriminalizing-of-section-377/> accessed on 27 April, 2022.

 

[32] Shreya Rathor, Same-sex Marriage in India, Indian Law Portal, <https://indianlawportal.co.in/same-sex-marriage-in-india/> accessed on 27 April, 2022.

[33] National Legislative Drafting Competition, <https:// www.lawctopus.com/wp-content/uploads/2018 /08/Le gislation-Drafting-Concept-Note.pdf> accessed on 28 April, 2022.

[34] Shivani Pankaj, Towards equality from declassification to decriminalization, LGBT, Legal Services India, <http: //www.legalserviceindia.com/legal/article-6-towrads-e quality-from-declassification-to-decriminalization-lgbt.html> accessed on 28 April, 2022.

[35] Ajay Solanki, India’s new law on the protection of right of transgender persons, International Bar Association, <https://www.ibanet.org/article/0f3ae21b-0170-4bf7-95dd-45b07ef1caf6> accessed on 28 April, 2022.

[36] Kashish Makkar, Transgenders: Identity and Position in the Family Law in India, 5(1) NLUJ Law Review 54 (2018).

[37] Vaishnavi Kaushik, A discussion on the adoption and marriage rights of LGBTQ+ community, TDG, <https: //thedailyguardian.com/a-discussion-on-the-adoption-a nd-marriage-rights-of-lgbtq-community/> accessed on 28 April, 2022.

[38] Tarini Mehta, Where are India’s queer parents? Having a family is not even an option for many Indian, The Print, <https://theprint.in/opinion/where-are-indias-queer-parents/608267/> accessed on 28 April, 2022.

[39] Nitish Mahajan, Rights of Adoption of Transgender, International Journal of Law Management & Humanities, Vol. 3 (3), (2020), <https://www.ijlmh.com/wp-content/uploads/Rights-of-Adoption-of-Transgenders.pdf> accessed on 28 April, 2022.

[40] Sonia Balhara, Laws Concerning transgender marriage, I Pleaders, <https://blog.ipleaders.in/laws-concerning-transgender-marriage/#Understanding_the_term_transgender> accessed on 28 April, 2022.

[41] Law & Policy Brief, <https://www.law.ox.ac.uk/sites /files/oxlaw/law_and_policy_brief_rights_of_transgender_persons_bill.pdf> accessed on 28 April, 2022.

[42] Shivani Pankaj, Towards equality from declassification to decriminalization, LGBT, Legal Services India, <http:// www.legalserviceindia.com/legal/article-6-towrads-equality-from-declassification-to-decriminalization-lgbt. html> accessed on 28 April, 2022.

[43] Kashish Makkar, Transgenders: Identity and Position in the Family Law in India, 5(1) NLUJ Law Review 54 (2018).

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