Transgenders and Reproductive Rights : A Quest for Justice

 

Justice Deepak Mishra, while writing the judgement on decriminalizing section 377 of Indian Penal Code in September 2018 quoted German writer Johann Wolfgang Von Goethe’s “I am what I am, so take me as I am”, but still Indian society has failed to consider “who they are and what they are”. Let us make it simple, we have failed and are still failing to develop an inclusive society and policy framework from the past seven decades. Though the Judgement was delivered by the apex court of the country to decriminalize the sexual relationships among the LGBTQ community, replacing the colonial mindset amongst the law makers, administrators and the people, it would still take longer to give them the opportunity to lead a dignified life.

 

 

 

 

 

India has an estimated population of about 4.88 million transgender persons, this may be an officially recorded data but the number might vary because of parochial view of the society which prevents them from revealing their original gender identities. The estimated community of 4.88 million, are still struggling to have access to basic human rights, which is often discarded and denied on the grounds of sexuality and other procedural irregularities with respect to lack of societal acceptance and government recognition. With the decriminalisation of Section 377, the demands for legal recognition of marriages in these communities have been raised time and again by various stakeholders. This has lead towards a more pressing discourse surrounding sexual and reproductive rights.

 

On February 9, 2023, a trans couple gave birth to a baby, there have been similar incidents of pregnancies in cases of trans couples in the recent past. The term ‘reproductive justice’ encompasses freedom from state interference and is deeply rooted in term of its reliance on ‘right to privacy’. However, recognising and guaranteeing reproductive rights in cases of trans communities has its own social and policy challenges. In the year 2019, the Madras High Court recognised and affirmed the right of transgender persons to marry individuals of their choice and further held that a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage under Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same (Arunkumar and Sreeja v. Inspector General of Registration).

 

In the case of NALSA judgment (2014), the Supreme Court stated that gender identification is an essential component for enjoying civil rights by the transgender community and with the recognition of this right, many rights attached to the sexual recognition as ‘third gender’ would be available to the community like right to vote, right to marry, right to own property, right to claim formal identity through a passport and a ration card, driver’s license, right to education, employment and health amongst others. In Justice K Puttuswamy judgment, the Supreme Court held that right to privacy applies to the decision to enter into relationship, which is the foundation of family in our society. However, in the year 2022, a trans-man and trans-woman couple from Kerala approached High Court to allow them to register their marriage as transsexual people. Transgenders are allowed to register their marriage under Special Marriage Act, on the basis of identifying themselves and male and female, and not simply on the grounds of gender binary identities.

 

Today, transitioning to “preferred gender” does not necessarily removes the ability to procreate, as a result, trans people are becoming parents through sexual intercourse, sperm donation, or assisted reproduction techniques after transitioning. Trans masculine pregnancies have attracted wide media coverage in relation to trans procreative rights. With more cases relating to marriages emerging in trans people, between trans man and trans woman, which is a visible departure from the conventional ideas relating to marriage and procreation, there is a revived need to study the issues surrounding parenthood.

 

 

 

 

Marginalisation of transgenders on the ground classifying them into the categorisation as either “men” or “women” affects the availability of health services. Identifying as transgender, they have a gender identity that differs from sec that was assigned at birth. However, they are often categorised into broad category “sexual and gender minority”, undermining requirement of distinct healthcare needs that are distinct from lesbian, gay and bisexuals. These inequities have limited access to healthcare facilities for transgender community.

 

Reproductive Justice and gender justice are intersectional and should ensure that people of all gender can make their own decisions about their bodies and their future. Protecting right to self-determination based of gender identity and bodily autonomy is a part of reproductive justice. With Article 21 guaranteeing every person right to life and personal liberty, of which right to human dignity in an engrained right, and in tune with India’s international obligation, analysing reproductive justice from the lens of constitutional guarantee is equally pertinent. The current policies are inadequate to deal with various emergent and contingent issues surrounding reproductive rights in cases of transgenders. Inspite of the fact that the Transgender Persons Act, 2019 requires surgical intervention for issuance of certificate, though conduction of hysterectomy or mastectomy would not simply void a gender identity assigned at birth.

 

There is a need for sexual health education to address and include transgender people’s bodies and identities. Policy of respect and non-discrimination should be adopted at various levels concerning access to education, employment and health care. Medical training and professionals should focus on transgender person and not discard them as asexual or hypersexual incapable of having children. There should be access to comprehensive reproductive healthcare facilities, including availability of contraceptives. Laws should extend abortion rights and prevention of unwanted pregnancies even in cases of trans people.

 

 

 

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