On 20th July 2016, the Union Cabinet of the BJP government approved ‘The Transgender Persons (Protection of Rights) Bill 2016’. It is a landmark decision which has laid the foundation of an inclusive society. The real task of creating an inclusive society in spirit and action starts thence. The new law gives a welfare highway for development of the third gendered population in India by recognizing them as ‘Other Backward Classes’ (OBC). To be honest, to identify transgenders as OBC has an astringent effect on a smarting wound. OBC as a label, if used otherwise, does not evoke the emotional response because it takes into consideration a population segment, basis their profession and educational attainment; not their sexual orientation, personal expression and self-identification. However, on a more positive note, the law does ensure that transgenders are given special care to emerge from their historical socio-cultural and economic deprivation in order to live up to their optimum potential as human beings. To begin with, the law gives transgenders the right to identify themselves not as ‘male’ or ‘female’ but as the third gender. The Indian Constitution shall extend Affirmative Action rights towards transgenders, i.e. Reservation for their economic and educational development. Upon being identified as OBCs, the transgenders shall have the Indian Government’s support for social welfare schemes, public awareness campaigns and special public infrastructure shall be created for them. As a society, we find ourselves at a crucial juncture where much depends on how we contribute to the opportunity for creating a society where everyone has a place under the sun.
The Huffington Post raises pertinent points, questioning the socio-cultural impact of the new law“ In the eyes of modern Indian society, transgender people are ‘aberrations’, performers who seek alms or curse back if they are thwarted.Is it possible for law to change a society’s way of thinking and feeling about a certain section of its people. Will it ensure dignity, respect and affection from the ‘mainstream’? Should the definition of welfare be limited to, or understood solely vis-à-vis, a community’s material circumstances? Is it possible to imagine human rights without giving individuals the right to a private life, the right to love freely, marry a person of their choice and have children with them?”
As reported by The Hindu in February 2016, the Supreme Court ‘indicated’ that it shall re-consider abolishment of 377 which is a Section in the Indian Penal Code that criminalizes ‘carnal intercourse against the order of nature’ between consenting adults. However, the Supreme Court needs to be convinced that the review verdict against abolishment has violated principles of natural justice and reflects the prejudice of judges. The LGBT community, the activists and the lawyers (Anand Grover and Kabil Sibal) are unanimous in their opinion that sexual intercourse between consenting adults is private for those involved and legal penalization is ‘significantly unconstitutional’. The High Court led by Chief Justice A.P Shah passed the verdict that Section 377 should only apply to ‘non-consensual, penile, non-vaginal sex and sexual acts by adults to minors’. There has been medical intervention to this High Court judgement that ‘non-peno-vaginal sex between consenting adults is not medical disorder’ and hence it cannot be penalized under Section 377. Religion is known to abhor homosexuality and has been very vocal about the same. This religion led ‘moral’ angle has further complicated the issue for transgenders. As a society and civilization, we need to consider the life and choices of transgenders as a personal expression of exercising the freedom of choice rather than through socio-cultural lens which has been a long standing error on our behalf.
We at the Centre for Social Research support abolishment of Section 377 and support the new law of ‘The Transgenders Persons (Protection of Rights) Bill 2016’.
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