The Constitution of India, which serves as a foundation and manual for democratic governance, incorporates gender equality as one of its guiding principles. In this way, the functioning of the democratic values we have adopted in India is inextricably linked to gender equity. The Indian Constitution was made possible by the inclusion of gender justice, which includes affirmative action for reducing social and economic disparity and equality before the law.

It is important to note that with the changing generations, the term “gender” and “gender justice” has also broadened its aspects to a new category or community of gender known as then Tran genders or the LGBT Community. Transgender people are individuals whose characteristics and behavior differ from stereotypes about how men and women are supposed to be. In other words, Transgender encompasses anyone whose identity or behavior falls outside of stereotypical gender norms. As far as interpretation of gender justice is concerned, the Constitution of India has laid down several provisions under the Constitution which identifies the context of Transgender within the scope and the ambit of interpretation of the term gender though not explicitly defined under the Indian Constitution.

On April 15th, 2014, after years of unjust gender discrimination, the transgender persons were given a separate identity, after Supreme Court, in the landmark judgment of National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438 in this case recognized the third gender category before the eyes of Law. The Court broadened the constitutional interpretation and busted the binary gender structure of man and woman. The Court granted equal rights and protections to transgender persons under the constitutional principles of Article 14, 15 and 16. Thus, interpretation of the term “person” under Article 14, which deals with Equality before Law, does not restrict itself to the dual concept of man and woman. In other words, Hijras or transgender persons also fall under the admits of the expression ‘person’ and are entitled to equal protection of laws in all spheres of State activity.

Furthermore, Articles 15 and 16 of the Constitution are used to broaden the scope of the term “sex” to include “psychological sex” or “gender identity” and hence held that no person could be discriminated on the basis of sexual orientation. The Court even made an effort to protect one’s gender expression which is majorly reflected through dresses, actions, behaviour and similar forms. The Supreme Court laid emphasis on the importance of right to dignity by recognizing a person’s gender identity and widening the ambit of Article 21 of the Indian Constitution.

Justice—social, economic, and political equality of status—is required by the Constitution’s Preamble. According to India’s constitution, everyone has a constitutional right to equality. Discrimination against people based on their race, caste, gender, or place of birth is prohibited under Article 15 of the Constitution. All citizens are guaranteed the right to privacy and personal dignity under Article 21. Any violation of Article 23’s prohibitions against trafficking in humans as beggars and other similar forms of forced labor is a crime punishable in accordance with the law.

The Transgender Persons (Protection of Rights) Bill, 2016

‘Transgender’ as defined in the Act, refers to and includes all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.

The Bill prohibits discrimination against a transgender person, including unfair treatment or denial of service in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to public goods and facilities; (v) right to movement; (vi) right to rent or own property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment which has custody of a transgender person.

All public and private establishments are prohibited from discriminating against a transgender person in employment matters, including recruitment and promotion. If an establishment has more than 100 persons, a designated person will deal with complaints in relation to the Bill.

Offences and penalties

The Act introduces penalties for offences against transgender individuals.

Anyone who:

• compels or entices a transgender individual into forced or bonded labour (excluding compulsory government service for public purposes);
• denies a transgender person the right of public passage or use of public places;
• forcefully removes a transgender person from a household, village or other place of residence;
• commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse against a transgender person;

shall be punished with imprisonment which may vary between six months to two years, with a fine.

The Act, which gives the Third Gender legal status under our legal system, is not an exhaustive piece of legislation and merely represents a first step on the part of the legislature. It will be a slow and difficult process to determine how much the relevant stakeholders will do to encourage inclusion and attempts to make transgender people useful members of society. The Act does not specify how a person’s newly acquired gender identity will affect their rights and privileges in a variety of areas and facets of life, and it is mostly quiet regarding the repercussions of non-compliance and stakeholder accountability.

Conclusion:

According to the provisions in Articles 14, 15, 16, 19, and 21 of the Indian Constitution, “enjoyment of life by all citizens and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status, and gender” is the “golden thread” that unites the equality system. The “right of choice and self-determination” is recognized and acknowledged as one of the fundamental principles of the equality program. A person’s right to self-determination and dignity are intrinsically tied to the gender to which they belong and are related.