A Comparative Analysis of the Rights of Transgender Individuals
Abstract: Gender non-conforming people have faced discrimination in the past and have had hard time adjusting in a society which understands gender as a binary structure and not a spectrum. In the past decade, many countries have been rectifying this mistake via making laws more accommodating and progressive. This article is an attempt to do a comparative analysis of the legal recognition and rights of the transgender people across different countries. The first part of the article will talk about international treaties and principles which are available for transgenders. Then this article will compare laws regarding transgenders in India, Nepal, Pakistan, USA, UK and Argentina. In the last segment, the article will analyse the impact of COVID 19 pandemic on the community and suggest some reforms.
Keywords: Transgenders, COVID 19, Human Rights, Comparative Analysis
The transgender community has been one of the most marginalized communities in the world because they do not fit into the stereotypical binary structure of gender. They are often victims of discrimination and social exclusion. They are deprived of certain opportunities because they do not fit into the stereotypical boxes of male or female. Gender-based discrimination makes this community one of the most disempowered and deprived groups in the world. While delivering a judgment, Justice Radhakrishnan had well-said,
“Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.”
Gender non-conforming people have faced discrimination in the past and have had a hard time adjusting to a society that understands gender as a binary and not a spectrum. In the past decade, many countries have been rectifying this mistake by making laws that are more accommodating and progressive. This article attempts to do a comparative analysis of the legal recognition and rights of the transgender community across the globe in order to highlight the fact that even though countries have made progress in uplifting the transgender community, it is still not sufficient.
International treaties and conventions:
The United Nations has observed that the transgender community across the globe has suffered aggravated forms of violence and have been victims of extrajudicial killings. Therefore, they have passed several resolutions time and again. The resolutions reiterate that transgender persons should be guaranteed the right to recognition along with all the other rights and freedoms by the State which empowers them to live life with dignity. However, very few countries have ratified the resolutions.
The Yogyakarta Principles of 2007 & 2017 are revolutionary as they are one of the first few documents which lay out comprehensive principles on sexual orientation and gender identity for safeguarding the rights of LGBTQIA+ people. These principles have been endorsed by the courts of Nepal, India & Brazil. In 2017, the Office of the United Nations High Commissioner for Human Rights (OHCHR) had released a statement stating that LGBTQI+ persons are protected under the UN Charter, the Universal Declaration on Human Rights. Therefore, they did not feel it necessary to lay down a separate category.
In India, transgender people have the right to identify themselves as third genders. In 2014, the Supreme Court of India gave transgender people legal identity and created a “third gender” category through the landmark case of NALSA vs. Union of India. This landmark judgement led to the formation of the Transgender Person (Protection of Rights) Act, 2019. The judgment had established that when it comes to gender identity, concepts of “self-identification” and “self-determination” are indispensable. However, the 2019 legislation has been unsuccessful in fully incorporating these concepts. The NALSA judgement had also laid down that gender and sex are different and therefore they may not necessarily align with each other. However, some parts of the 2019 legislation tend to ignore this principle. Therefore, even though transgender people have been empowered with the right to identity, the dignity part still needs to be reinforced. Even though the government has provided the right to identity, sometimes the procedure for availing the right can be demeaning.
Other South Asian Countries:
In 2007, Nepal’s Supreme Court ordered the government to recognize a third gender category based on an individual’s “self-feeling.” The ruling was based largely on the recent Yogyakarta Principles. This ruling set a precedent that paved way for the inclusion of the third gender category in important government documents like passports and citizenship documents. However, in Nepal trans people can only register under the “Others” category regardless of what gender the person identifies with.
In Pakistan, the Supreme Court recognised the third gender category in 2009 in the Khaki vs Rawalpindi case. However, the law against discrimination is still being developed in the country. The Transgender Persons (Protection of Rights) Act 2017 was introduced with the aim of bringing the community to an equal footing. This act allows people to choose their gender and to have that identity recognized on official documents. Furthermore, the act prohibits discrimination in schools and at employment and it lays out their inheritance rights, in accordance with the identity chosen in the official documents.
In Bangladesh, the parliament had issued a 2013 decree recognizing hijras as their own legal gender. According to Human Rights Watch, although they have been given legal identity, the lawmakers have done nothing to protect them. The Anti-discrimination bill was drafted in 2014 which stated the inclusion of gender identity and sexual inclusion as a foundation for non-discrimination. However, the bill is yet to be enacted into law. Owing to the fact that the transgender community has had a huge presence in history and culture, the South Asian countries have been comparatively more willing to recognise them as third genders. But the community continues to be marginalised and discriminated against even there.
United States of America:
The courts have time and again held that the transgender community should not be discriminated against. However, the country still does not have any federal law to protect the community. In a recent case Bostock v. Clayton County, Georgia, the Supreme Court of USA stated that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. However, there is still no comprehensive federal non-discrimination law that includes gender identity. In another case Obergefell v. Hodges, the Supreme Court had held that the Constitution’s 14th Amendment guarantees all people (particularly transgender people and same-sex couples) the fundamental right to marry. Some states do have laws in place to protect the transgender community, however, most of the laws have not been implemented yet.
The Gender Recognition Act was enacted by the parliament of the country in 2004. According to this act, transgender people can apply for a ‘Gender Recognition Certificate.’ However, there are certain requisites to be fulfilled. For instance, this certificate can be received only by people above 18 years. Thus, minors do not have any rights. Moreover, there are three scenarios in which the certificate can be granted. For instance, in one of the scenarios, it is important for them to be diagnosed with gender dysphoria and they need to have lived in that gender for at least two years. People with gender dysphoria usually have “an unpleasant sense of their gender not matching the body into which they were born.” Thus, it is evident that, even though the intent behind the legislation is to give the community right to identify, however, the procedure might subject them to humiliation and mental duress.
Argentina is one of the few countries which has progressive laws for protecting the rights of the transgender community. The Gender Identity law of the country was enacted in 2012 which gave the transgender people the right to self-identify themselves. Moreover, a transgender person can access gender reassignment surgery and other hormonal treatments through the public health system. However, even though the transgender people have been empowered through legal rights, deep-seated discrimination, and gender-based violence are still present there. The City council of Buenos Aires in collaboration with Argentina’s Association for Travesti, Transsexual, and Transgender rights had in 2017 launched a community centre for transgender people to enable them to get all the opportunities in a safe atmosphere. “The community centre not only provides a safe and secure space for transgender people to escape the fear of discrimination, prejudice, and violence but it also gives them an opportunity to attain their primary and secondary school certificates.” This thus empowers them to pursue life goals and ambitions. The section for minors in Argentina’s gender identity law is laudable as well. This section takes into consideration those situations where it might be difficult for the minor to get consent of his legal representatives. In such cases, the minor can opt for summary proceedings in which a judge decides on a case-by-case basis.
Impact of COVID on the community:
In a report by the Office of High Commissioner for Human Rights, it was observed that LGBTI people are especially vulnerable during COVID 19 pandemic and OHCHR had urged the states to take steps to ensure that the community is being taken care of and their issues are being taken into consideration.
Victor Madrigal-Borloz, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, had presented a report on the impact of the COVID 19 pandemic on the human rights of the LGBT community. Furthermore, the report had stated the three most important and effective measures that should be implemented to protect the community.
Firstly, giving visibility to LGBT lives in public policy. For instance, Peru and Spain had published guidance on the different economic support programs for shelter, health, and emotional support which are available to the LGBT persons in the country. Even in the Philippines, same-sex partners with children were included in the social amelioration and cash aid programmes.
Secondly, deconstructing stigma and protecting LGBT persons from violence and discrimination. For instance, in France, national systems were deployed when domestic violence had increased. This led to the launch of an app for reporting homophobia.Thirdly, designing State response based on evidence and with the involvement of LGBT organizations.
The right to identity and recognition is a basic right that has been guaranteed in numerous human rights treaties and a number of countries have developed their laws to give legal recognition to transgender people. For instance, not having a basic right to identify themselves is a gross human rights violation. However, even in countries that provide the right to self-identify, the requisite procedures may subject the transgender applicant to humiliation and discomfort. Moreover, as pointed out above, the condition of transgender communities has been worsening during the pandemic. Therefore, it is important that the counties should try and incorporate Yogyakarta Principles and other available resources. The above-mentioned measures are some examples that can be taken by all the states to protect the transgender community during these exhausting times. It is imperative to make sure that the transgender people are not only being empowered with rights on paper, but the legal rights are empowering them in social and practical aspects. It should be ensured that basic human rights are not being violated and hence the measures employed by the countries should comply with principles of equality and non-discrimination, empowerment, and responsibility. When it comes to transgender communities, we still have a long way to go.
This piece has been authored by Shivanjali Shukla.
Shivanjali Shukla is a third-year student of law at O.P Jindal Global University.