Author: Disha Pathak
III Year | University Institute of Legal Studies, Chandigarh

Introduction:

Transgender is a familiar term of the 21^st century that is still finding its way into our society. Recently they received legal backing through the historic victory in the case of Navtej Singh Johar v. Union of India[1]. While this case became a beacon of hope for the LGBTQ+ community, there’s still a long way to go.

Gender is a societal construct that undoubtedly defines one’s personality. Transgender simply refers to the ‘third gender’, which until recent years, was just another term in dictionaries.  However, with reforms and new perceptions inculcated into changing mindsets, people have started considering transgender as a member of society. Unfortunately, this struggle for one’s identity and dignity begins at a very tender age. Transgender children have a tough time manoeuvring through childhood due to internalized gender dysphoria and the outside societal pressure.

Breaking the Shackles of Stereotypes:

Transgender children are devoid of their basic human rights and their very need for a family. A child’s psychological needs and the right to have a joyful and happy childhood are of utmost importance. Article 39(f) and Article 47 of the Constitution of India also enumerate these previously mentioned points. According to Article 1 of the United Nations Convention on the Rights of the Child, 1989 – “child” means any person who is under the age of 18 years. “Any person” under this Article refers to a person irrespective of their language, gender, caste, religion, sex, nationality.

Legal Protection to Transgender Children:

How far has the legal system protected the rights of transgender children is one of the main concerns. Article 9 of the Conventions on the Rights of the Child [2] asserts that children should not be separated from their families even when a proceeding for separation is in process between the parents. The right to have a family is a human right provided under this article.

Parliament brought in the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter as the Act) to protect the rights of the transgender community. Section 12(1) and Section 12(2) of the Act define the right to have a family and a household. Section 12(3) states that in case of the inability of the family to take care of such children the court can pass an order to put them into rehabilitation centers. Unfortunately, this section is not robust enough to envisage the needs of a transgender child.

Section 18(c) of the Act [3] defines offences and penalties. However, the generality of the offences and subsequent penalties are quite vague and have not been analyzed with regards to the social and mental factors [4]. While the bill is a ray of hope for the transgender community, there is still scope for change.

How can we ensure a haven for transgender children?

Every child is an innocent wonder of this world, they need love and gentle nurturing for their growth. Early imprints of their childhood determine the kind of person they will become in the future. It is our responsibility as a society to ensure a haven for children. The following steps can be reflected upon for making a more informed and inclusive decision:

Representation of the transgender community:

Consulting the Stakeholders at the time of law-making can result in better policy formation. Hence, when drafting a bill for the benefit of the transgender community their representation is of utmost importance. This would ensure equal representation and participation in policy building.

Diverse Child Welfare Societies:

It is high time that society sensitizes itself towards the wide gender spectrum and diverse support groups have a huge role to play in it. Children-related decisions require clarity and brevity. Child welfare societies and clubs certainly play a significant role in normalizing gender identities. Their recommendations can be sought in policymaking, as they would help in making informed decisions.

Encourage adoption (especially by the transgender community):

Family need not only mean blood ties. There is a need for encouragement to adopt in the transgender community. The existing laws need to be amended, to allow ease of adoption to the LGBTQ+ community. Accordingly, there is a need for relevant laws to be introduced particularly for the adoption and well-being of transgender children. This would enable society to not only respect their family rights but also make for a safe abode and a joyous living for these children.

Conclusion:

A trans child should not be devoid of fundamental rights. Their identity should not lead to discrimination. In fact, basic teachings begin from home and hence they should not be devoid of the ultimate joy and leisure of having a family.

[1] Navtej Singh Johar & ors. v. Union of India, A.I.R. 2018 S.C. 4321

[2] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577 (Jan 22, 2022) https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

[3] Sec 18(c): Whoever- forces or causes a transgender person to leave the household, village, or other places of residence- shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine.

[4] Prachi Singh, ‘Why is transgender community unhappy with Trans Persons Bill?‘, DOWN TO EARTH (Nov 17, 2020) https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy-with-trans-persons-bill–67158

Editor: Priyanshi Trivedi