Ganesh Pandit
Introduction
In Indian mythology, transgender individuals were highly regarded. However, in recent centuries, the transgender community has faced challenges. One contributing factor has been television, which has quickly influenced people’s perspectives. Nineteenth-century Bollywood films portrayed transgender people disrespectfully, leading to a change in society’s view of them and affecting the present generation.
In recent years, there has been a positive shift. Movies like ‘Laxmi’, ‘Super Deluxe’, ‘Antharam’, and ‘Paava Kadhaigal’ have portrayed transgender struggles and daily life, shedding light on their experiences.
Transgender individuals encounter multiple challenges in today’s society, including issues related to equality, justice, and freedom. They strive for the principles of democracy and its values, yet they confront daily difficulties and violations of their fundamental rights within this democratic framework. Unfortunately, mainstream media often neglects the issues faced by the 4.8 million transgender people. It’s important to recognize that nature inherently fosters diversity without creating hierarchies or inequalities between men, women, or transgender individuals. These distinctions are human-made and have detrimental effects on the human rights of all segments of society, whether they are transgender or from other marginalized groups.
Educational status of transgender individuals
As per the National Human Rights Commission, a staggering 96 percent of transgender people face job rejections, and 60 percent are denied admission to schools due to their gender identity. This low enrollment is exacerbated by a persistently high school dropout rate. Regrettably, transgender individuals often lack access to education and face societal rejection. The root causes of this alarming situation are the bullying and harassment transgender children experience both within their community and in educational institutions. In a groundbreaking judgment in 2014, the Supreme Court recognized transgender people as socially, educationally, and economically disadvantaged.
Despite this recognition, the Government of Maharashtra’s Department of Other Backward Class Welfare Ministry excluded transgender individuals from their state government’s overseas study scholarship scheme announced on May 23, 2022, as per the Maharashtra foreign scholarship advertisement, 2022.
Fundamental Rights: more than just words
The exclusion of trans individuals from opportunities violates the fundamental rights of transgender people as enriched in Articles 14, 15, and 21 of the Indian Constitution.
- Article 14 states that the state shall not deny any person within Indian territory equality before the law or equal protection of the law. This implies that everyone should receive the same treatment under the law.
- Article 15 prohibits discrimination on the basis of sex, and any violation of these rights will be considered a violation of human rights. Preventing discrimination on the basis of sexual orientation or gender identity is essential.
- Article 21 is about the right to social and economic justice and empowerment, reiterating the importance of equality and justice.
The Supreme Court said in the National Legal Services Authority (NALSA) vs. Union of India judgment that discrimination on the basis of sexual orientation or identity includes any form of discrimination, exclusion, restriction, or preference that has the effect of nullifying equality by law or the equal protection of laws guaranteed under our constitution.
Supreme Court’s landmark ruling
In 2014, Justice K.S. Radhakrishnan ruled in National Legal Services Authority (NALSA) vs. Union of India, with Writ Petition No. 604 of 2013, “that transgender people were treated as socially and educationally backward classes of citizens and that all types of reservation were extended in cases of admission to educational institutions and for public appointments.” Central and state governments should also take steps to improve the social welfare and well-being of transgender people.
It is also mentioned in the ‘Transgender Persons (Protection of Rights) Act 2019’ prohibiting discrimination on the basis of sex in education, employment, healthcare, and service access. Transgender people are frequently denied admission to educational institutions because those institutions do not recognize their gender identity. The ‘Transgender Persons (Protection of Rights) Act 2019’ mandates that educational institutions receiving government funding or grants must offer transgender students an inclusive education.
Reservations for transgender community
In the 2014 NALSA judgment, the apex court ruled that the transgender community has the right to reservation. In India, the reservation is based on the social and economic status of the community, and transgender people are socially, economically, and politically backward. According to the National Human Rights Commission, only 6 percent of trans people were formally employed. Most of the community engages in informal work like begging and sex work, which have been criminalized in India. They engage in such work because they don’t have other options. The job of trans people is to denounce the prejudice of society towards transgender people.
In 2014, the NALSA Supreme Court ruling established that transgender people were entitled to the reservation. But the ‘Transgender Persons (Protection of Rights) Act 2016’, which was introduced in 2016, had no provision regarding trans reservations. Before this, the Rights of Transgender Persons Bill was introduced in 2015, but it was rejected by the Lok Sabha. In the ‘Transgender Persons (Protection of Rights) Act 2019’, the central government did not mention reservations for transgender, either vertical or horizontal.
To genuinely enhance the economic, social, educational, and political standing of transgender individuals, we should consider providing them with horizontal reservations in all educational and public appointments. Our constitution ensures equal opportunities for every Indian citizen, regardless of their sex, race, caste, religion, or place of birth. Extending reservations to transgender people opens up new opportunities, eases access to education and employment, and safeguards their rights from everyday violations. We applaud the Karnataka government for implementing a one percent horizontal reservation for transgender individuals following the Sangama v. State of Karnataka case.
States initiatives for the upliftment of transgender
Several states, such as Gujarat, Delhi, Tamil Nadu, Tripura, Chhattisgarh, and Maharashtra, have taken steps to uplift trans individuals. Tamil Nadu is the only state that has been successful in improving the educational status of transgender students and their admission to public colleges for full higher education courses. In 2008, it was the first state to establish the Transgender Welfare Board. Tripura also provides 500 rupees per person for the financial independence of the community, and other states are not far behind. Maharashtra and Gujarat also established the Transgender Welfare Board in the same year.
However, to truly enhance the educational status of the transgender community, further policy measures are necessary. It is important to take substantial steps to improve access to education for transgender individuals. It’s worth nothing that the Maharashtra government’s scheme to exclude transgender people from state-funded scholarships to study abroad is not only ethically questionable but also violates their fundamental rights, as well as a Supreme Court decision.
Transgender individuals are advocating for their human rights globally. Several countries have recently enacted laws to protect transgender rights, and India has taken steps to promote the well-being of the transgender community. However, the existing policies have fallen short of effectively improving their status, primarily due to issues with implementation.
Many transgender individuals face illiteracy, which results in a lack of awareness regarding their rights and the available policies. Incidents of transgender harassment occur in society and educational institutions, discouraging transgender students from pursuing higher education. To address these challenges, the government must rigorously enforce existing laws and actively encourage transgender individuals to access education. Exclusion from scholarship programs can be a significant hindrance to their upliftment and overall well-being.
Conclusion
India, often referred to as ‘the mother of democracies’, is a democratic nation that places a strong emphasis on the development of every individual in all aspects of life. Democracy’s fundamental principles include the freedom and dignity of individuals, aiming to enhance people’s living standards and provide opportunities for personal growth. In this democratic setting, transgender people have the right to apply for the state government’s study abroad scholarship programs. Their exclusion from such opportunities would constitute a violation of their rights.
It is the responsibility of the states to work towards improving the social, economic, and educational status of transgender individuals. To address the challenges they face, transgender committees should be established in schools, colleges, and universities. Furthermore, educational institutions should create anti-discrimination cells to combat any form of bias.
A critical need exists to invest in research to gather more data, information, and understanding of the issues impacting the lives of transgender individuals. This research can inform the development of policies that effectively benefit and uplift the transgender community.
Bibliography
- Agarwal, S. (2017). Civil and Political Rights of Transgender in Indian Constitutional Internal Journal of Law and Legal Jurisprudence , 144-160
- Kamble, P., & Jahanara, D. (2019). Problems of Third Gender in Maharashtra A Study from Social Exclusion to Social Inclusion. International Journal of Development Research
- (n.d.). National Human Rights Commission InTransgender etrieved February 10, 2023, from https://nhrc.nic.in/
- Rose, E. (2022, June 1). Education Rights- Transgender. Education Rights- Transgender, 1, 24. DOI-10.55183/amjr.2022.vo3.lsi.01.004
- The struggle of trans and gender-diverse persons. (n.d.). OHCHR. Retrieved February 10, 2023, from https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity/struggle-trans-and-gender-diverse-persons
- The right to education of transgender people | Right to Education Initiative. (2017, November 17). Right to Education Initiative |. Retrieved February 10, 2023, from https://www.right-to-education.org/news/right-education-transgender-people
- Yadhav, J. (2017, dec.). Inclusion of transgenders in education. 3(12), 61.
~~~
Ganesh Pandit is an L.L.B student at the University of Delhi with a distinction in Economics at Fergusson College. He was a Privileged Judge for The Queen’s Commonwealth Essay Competition 2023, recognized for nurturing young talents. He is also experienced in legal research, project coordination, and disability advocacy through roles at PATH Foundation, Eklavya India Foundation, and Savali Foundation.
