The term Transgender is used for those who do not confirm to the sex in which they are born in terms of Gender Identity, expression or behavior. The Transgender people are generally described as “Non-Binary” or “Gender-Queer”. Majority of them are non-conformist and have various ways to exhibit their Gender Identity in the way they dress up, style their hair, the way they walk and talk. Most common among them is to choose a new name for themselves.

 

Many a time they undergo medical treatment which includes Hormone Therapy, Surgeries and other interventions which makes them more compatible with Gender Identity as a whole process they undergo changes in their bodies. Trans-Feminine is an expression wherein they were born as male but now they have predominating feminine gender identity or presentation. Similarly Trans-Masculine are born female but has predominately masculine Gender Identity or presentation.

 

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

Provides for:

a. Recognition of Identity of Transgender person.
b. Prohibition against Discrimination.
c. Welfare measures to be taken by the Government.

The provision of the Act makes the provision for Identity Certificate of the Transgender persons. The Prison Authorities are responsible to facilitate the process for acquiring the Identity Certificate if such a request is made by the transgender person.

 

NLASA Vs. UNION OF INDIA:

“Transgender Persons” Right to decide their Self-Identified Gender is also upheld and the Center and the State Government are directed to grant Legal recognition of their Gender Identity such as Male, Female, or as Third Gender.”

 

The Hon’ble Supreme Court in this Judgment is very clear that one has the Right to choose one’s Gender. And they have also emphasized the fact that Transgender persons have a Right to lead a life with Dignity and Honor which is a Fundamental Right guarantee by the Constitution of India and the fact that we are signatory to United Nations wherein it is the duty of any Sovereign State to protect the life of  its entire population and enable them to lead a life of Dignity. Since India is a signatory to this International Conventions so it has become mandatory for the Government to protect the life of all citizens including the Transgender.

 TRANSGENDERS IN PRISON:

It is a very common which one can witness at the prison scene that since there is no recognition of the Gender Identification, the Transgender  undergo a lot of discrimination in prison. The housing facilities depends on the biological features wherein if a person who is born a male with male biological features but identified themselves as a woman are detained in men’s prisons where they are subjected to cruelty, humiliation and very often subjected to Sexual Violence and Sexual abuses. All this in turn violates the Right to Self-Determination of the Gender.

During the search procedure and stripping search procedure Individual Dignity and Privacy are to be duly maintained and must be carried out in separate private spaces. But the fact remains that the Prison Officers force them to strip on the pretext of the security measures where they are subjected to lot of humiliation, surprisingly no uniform procedure or policy has been adopted in respect to medical examination of the Transgender Prisoners and it is evident that the way they are conducted violates the Fundamental Rights of the Transgender. The focus is on determining the gender on an individual, based on genitalia.

The plea which is forwarded is that the objective of such procedure is not to determining the sex of a particular convict but to prevent the entry of restricted contraband in the prison.

WAY FORWARD

The onus and the responsibility of the Prison Authorities lie in protecting the Right to Privacy, Dignity and Bodily Integrity. A separate ward enclosure may be provided to house Transgender prisoners which should be separated from male and female wards and their toilet and shower facilities should also be separate. Otherwise, the whole idea will be defeated and the Transgender inmates may find themselves subject to cruelty and sexual violence in such common areas which are so venerable.

The Right to Equality and discrimination based on sexual preferences cannot be classified as reasonable reason to discriminate.

 

Providing separate housing cell and providing security free from violence would help in reducing the distress and discrimination at regular basis.

 

STEPS TO BE TAKEN FOR THE TREATMENT AND CARE OF TRANSGENDER PERSON IN PRISON IN INDIA

1. RECOGNISATION OF IDENTITY: Everyone have the right to self-perceive Gender Identity.

2. DEVLOPING INFRASTRUCTURE: Separate enclosure ought to be setup. Due care must be taken. However, due care may be taken by the Prison Authorities. It should not result in complete isolation or propagate social stigma.

Right to Privacy and to Live with dignity regarding separate toilets as well as shower facilities.

3. SELF IDENTITY: With regards to admission procedure medical examination, search, lodging, clothing, police escorts and care facility.

They should have identity certificate which they can be registered online. National Portal for Transgender Person.

4. ADMISSION IN PRISON: The Prison Administration should include the Transgender as a separate category and similar provisions to be made in Prison Management system in maintaining electronic records of the prisoners. They may wish not to reveal their self-identity or the gender mention in the dispute. The Legal Services Authority assists the person to make an application and to change the gender identity.

 

5.  SEARCH OPERATIONS:  Search may be conducted by a trained Medical Professional or Para medic if necessary.

6. HEALTH CARE: No discrimination to be followed on the ground of their Gender Identity.

7. COMMUNICATION: Transgender inmates should be allow meeting and communicating with their family members and legal advisors for preparation of appeal for procuring bail or for arrangements of the management of the property and family affairs.

8. REHABILITATION: A concerned officer must include and reaffirm family of choice and specific health’s needs especially mental health and gender affirmative process.

9. TRAINING AND SENSITIZATION:

For developing and understanding of Gender Identity, Gender Dysphoria, Human Right, Sexual Orientation and Legal frame works of Transgender Person, Training of Medical officers, Trans gender persons Right to decide their Self-identified gender and designing public gender awareness program on the Right of Transgender Person in collaboration with Ministry of Social Justice and Empowerment, prison training institutes, State Health Department and Human Right Commission, Legal Service Authority and with representative from Trans Gender Community.

– MAMTA SINGH SHUKLA

(ADVOCATE DELHI HIGH COURT)

MOBILE – 9560044035

Email id – adv.mamtasinghshukla@gmail.com