Author: Chanchal Sharma
University of Delhi
Education is a human right with immense power to transform.
– Kofi Annan
Transgender children, just like every Indian citizen, have the right to education. They receive all the fundamental rights guaranteed to an Indian Citizen by the Constitution of India under Articles 14, 15, 16, 19, 21, 21A, and 23. Thus, they are just as much an Indian Citizen as anyone who satisfies what is written in Article 5 of the Constitution.
Article 26 of the Universal Declaration of Human Rights, Article 29 of UNCRC and in India, Article 21A, Article 45, and Right to Education Act, 2009, NEP 2020, and Section 3(a) of The Transgender Persons (Protection of Rights) Act, 2019 ensures the right to education for transgender persons.
In the year 2014, the Supreme Court of India in its pioneering judgment by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of India & Ors. recognized the transgender as a third gender.
The Court disproved society’s accepted dual gender structure of ‘man’ and ‘woman’ by recognizing a variety of gender identities. Despite, having all the rights, they do not always receive the respect, acceptance, acknowledgement, and representation they deserve in educational institutions, workplaces, or society. The latest data on students enrolled in schools across India shows transgender participation at 61,214 students in 12 states and none in UTs.
Defining ‘Transgender Person’:
According to section 2(k) of The Transgender Persons (Protection of Rights) Act, 2019, “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
Challenges faced by Transgender Children:
Every child has a fundamental right to live with dignity and receive equal treatment. Children who identify themselves as transgender have always been treated as outcasts, faced discrimination in India, and have been denied a life of dignity. The nomenclature “Third Gender” poses significant problems. It makes them feel a sense of inferiority toward the other two genders.
Although the Supreme Court provided them with legal recognition, the ground reality has not changed because it has failed to alleviate their marginalization. States have failed miserably to implement the rules and provisions set forth in all applicable laws and policies for transgender people. There are various challenges faced by transgender children.
Rigid Binary Model of Gender and Sex:
It is very challenging to provide the same educational opportunities to transgender children as other students because the schools operate on a binary model of gender and sex. The children are expected to behave in one of two predetermined ways. They are not expected to act differently depending on whether they are a girl or a boy, because it is not regarded as normal for this gender. Transgender children feel caged and cannot express themselves in the way they choose because they cannot associate themselves with this binary model. They experience a sense of exclusion from the mainstream as a result.
Every school operates in a binary manner. Uniforms, seating arrangement, play areas, choice of appearance, etc. all show the same pattern. Each school has a specific dress code identified as a girl’s uniform and a boy’s uniform. There is no modification or other option available for transgender students. They have to pick either of the uniform options available even if they do not feel comfortable in it. Those who try to defy these stereotypes face humiliation in front of other students, punishments, or suspension.
Infrastructural and Safety Issues:
Every school has two different types of restrooms, one for boys and the other for girls. This issue frequently arises for transgender students. They don’t have access to designated changing rooms, common rooms, or locker rooms in schools. They do not have safe access to basic necessities.
Teachers often use pronouns like he/she for every student. Transgender students do not get to choose the pronouns they prefer.
Suggestions for the betterment of Education of Transgender Children:
Steps by Government for the betterment of Transgender Children
- Transgender children were recognized under the category of disadvantaged groups and in order to encourage them to pursue an education, they have been granted a 25% reservation in seats under EWS and the disadvantaged category under The Right to Education Act 2009.
- The Transgender Persons (Protection of Rights) Act, 2019, Section 13 obligates educational institutes to provide inclusive education to transgender persons.
- National Education Policy, 2020 talks about providing “equitable quality education” to girls and transgender students.
- States like Tamil Nadu, Karnataka, Maharashtra, and others have taken the first steps by issuing State Policies for Transgender and setting up Transgender welfare boards. The Transgender Persons (Protection of Rights) Act constituted the National Council for Transgender Persons (NCTP) in the year 2020.
Steps that may be taken by Schools for Transgender Children:
Schools must take the initiative to ensure equal educational opportunities for transgender children. They have to make some adjustments to the infrastructure and also the learning environment. Some suggestions are as follows.
- Allow the students to wear the uniform of their choice;
- Making transgender-friendly restrooms, and common rooms;
- Make an effort to include the transgender students with other class students;
- Make schools safe for transgender students;
- Set up an anti-harassment cell for transgender and an anti-discrimination cell;
- Provide mental health access to transgender students;
- Provide teacher training to be more sensitive towards transgender students etc.
Every child is unique and different from others. It is wrong to judge them if they do not fit the stereotypical definition. Since we live in the 21st century, we ought to be more accepting and less prejudiced against new gender identities. No one has the right to take away or deny someone their rights because they do not fit in a particular category. Our Constitution provides the right to equality to each and every person irrespective of any discriminatory factor.
The question of whether simply giving the transgender community the option to fill in ‘third gender’ on the form is sufficient to ensure that they will not be denied their fundamental rights as a citizen of India remains, despite the fact that the apex court has always been successful in upholding the rights of every individual, regardless of sex, caste, religion, or any other distinction.
We cannot succeed when half of us are held back.
– Malala Yousufzai
Editor: Pratik Banerjee