INTRODUCTION
The right to education is a fundamental human right that is considered integral for the development of individuals at personal and social levels. It is necessary to meet the conditions of equality and a just society. ‘The 86th Constitutional Amendment Act 2002 inserted Article 21 A in the constitution which made the provision for free and compulsory education for the children between the age of 6 to 14 years a fundamental right in such a manner as the State may implement according to the law’.[[1]] ‘The Right of Children to Free and Compulsory Education (RTE) Act 2009, was enacted to properly implement the provision as envisaged under Article 21-A of the Constitution’.[[2]] This right should be accessible to all people for their betterment.
“Transgender is an umbrella term for the individuals whose gender identity, gender expression and behaviour are not in conformity with their sex which they were assigned to at the time of birth.” [[3]] The right to education is of key importance for the transgender in India in providing them with development opportunities. Transgender individuals encounter challenges in availing this right due to a lack of awareness, marginalisation, and stigma. Currently, various laws and policies have been enacted to promote their advancements in society.
National Legal Services Authority v. Union of India (2014)
Transgender individuals are victims of discrimination in various spheres of life and face several challenges such as marginalization, non-acceptance by the people, and stigmatization. National Legal Services Authority v Union of India (2014) [[4]] is a landmark case, which recognized transgender as the ‘third gender’ [[5]]. It also upheld the safeguarding of their fundamental rights under Part III of the Constitution. They were entitled to the rights under Articles 14, 15, 16, 19(1), and 21 under Part III of the Indian Constitution [[6]]. ‘Article 14 of the Constitution states that the person shall not be denied by the State equality before the law and equal protection by the law and the term person also includes transgender within it for equal protection by law. They are also protected under, Articles 15 and 16, of the Constitution which prohibits discrimination against citizens on the grounds enumerated under the Constitution, one of them being sex. The provision of privacy, self-identity, autonomy, and personal integrity are to be protected under Article 19(1) (a) of the Constitution, which provides for all citizens to have freedom of speech and expression. Article 21 of the Indian Constitution states the right to life and personal liberty which also includes the legal recognition of gender identity and the right to live with dignity. [[7]]
It also recognized the third gender as socially and educationally backward classes and encouraged extending reservations in educational institutions and public appointments for them.[[8]]
Policies and Enactments
Various policies and enactments have been introduced to safeguard the rights and interests and to promote the welfare of the Transgender community in India. Some of them are as follows:
- The Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Bill was passed by the Lok Sabha on August 5, 2019, and by the Rajya Sabha on November 26th, 2019. [[9]] In this act under Section 2(k) “Transgender person is defined as a person whose gender does not match the gender assigned at the time of birth to that person. It includes trans-man or trans-woman, a person with intersex variations, gender-queer and the person with the socio-cultural identities as Kinner, hijra, aravani, and jogta” [[10]]. Chapter II, Section 3 states the prohibition of discrimination against the transgender person including denial, discontinuation, and unfair treatment, on the grounds enumerated under the section such as education, employment or occupation, access to health care services, and enjoyment of other public facilities as well as upholds their right to movement, reside, rent, purchase and occupy any property and holding office public and private.[[11]] Section 13 of the act states ‘the obligation of the educational institution funded or recognized by the appropriate government for providing inclusive education and opportunities for sports, recreation and leisure activities, without any discrimination’.[[12]]
- Transgender Persons (Protection of Rights) Rules, 2020
“It strives to provide recognition to a transgender person and prohibits discrimination in the spheres of education, employment, health care services, disposing and holding of property, holding public and private office, and access to and of public services and benefits”. [13]
- National Educational Policy, 2020:
It envisages a new education system in India and focuses on making the education system more inclusive. ‘It recognizes transgender children under Socially-Economically Disadvantaged Groups (SEDGs) and provides for equitable quality education for all such students. It works for the elimination of disparity in access to education by children of any gender or other SEDGs’. [[14]] It aims to provide effective and quality education to transgender children. The policy also provided for constituting Gender Inclusive Funds for quality equitable education for all girls as well as transgender students. [[15]]
- “SMILE – Support for Marginalized Individuals for Livelihood and Enterprise”
It is an umbrella scheme launched by the Ministry of Social Justice and Empowerment providing comprehensive measures for promoting the welfare of the transgender community and persons engaged in the act of begging. The scheme emphasizes providing facilities such as rehabilitation, medical care, counselling, education, skill development, economic linkages etc. It assists transgender students financially by providing scholarships to the students from class nine till post-graduation. [[16]]
Challenges faced by Transgender People
Various provisions and schemes are implemented for safeguarding the interests of the transgender person but they still face several barriers while availing their rights. Some of the challenges faced by them in the sphere of education are as follows:
- Transgender students have to face discrimination and are victims of bullying and harassment in educational institutions which affects their mental health as well as causes dropouts among transgender students. [17]
- The lack of gender sensitivity and lack of awareness among educators and other students can make the environment in educational institutions unwelcoming. The stigma against transgender students affects their inclusion. [18]
- Transgender students face issues regarding the safety and lack of secure access to public restrooms.[19]
CONCLUSION
Education is an integral right that facilitates the development of individuals. The Constitution of India has provisions for the right to education availed by all the citizens of India. The Right to Education is necessary for the development and upliftment of society in personal, social, and legal spheres. Various legislations, schemes and programmes are enacted by the governments for the welfare of the transgender community in India. But there are several challenges like discrimination and stigmas against them which hinders the effective implementation of the laws and further bridges the social and gender gap in the society. For the welfare of the transgender community, awareness should be made among the members of the society to facilitate inclusion, acceptance, and respect by the people, and foster gender sensitivity to effectively work for safeguarding their interests and rights.
Author(s) Name: Saomya Shreya (New Law College, Bharati Vidyapeeth (Deemed to be University), Pune)
Reference(s):
[1] Constitution of India,1950, art 21A
[2] ‘Right to Education’ (Ministry of Education, Government of India, 11 February 2019) <https://www.education.gov.in/rte> accessed 04 June 2024
[3] ‘Understanding Transgender people, gender identity and gender expression,’ (American Psychological Association), 09 March 2023) <https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression> accessed 04 June 2024
[4] [4] National Legal Services Authority v. Union of India (2014), 5 SCC 438
[5] ‘Participation in PILs’ (National Legal Services Authority) <https://nalsa.gov.in/services/social-action-litigation/participation-in-pils> accessed 04 June 2024
[6] Constitution of India 1950, arts 14, 15, 16, 19(1)(a), 21
[7] ‘National Legal Services Authority v. Union of India’ (Privacy Law Library) <https://privacylibrary.ccgnlud.org/case/national-legal-services-authority-vs-union-of-india> accessed 04 June 2024
[8] ‘National Legal Services Authority (NALSA) v. Union of India’ (South Asian TransLaw Database) <https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/> accessed 04 June 2024
[9] ‘The Transgender Persons( Protection of Rights) Bill,2019’ (PRS India <https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019> accessed 05 June 2024
[10] Transgender Persons (Protection of Rights) Act 2019, s 2(k)
[11] Transgender Persons (Protection of Rights) Act 2019, s 3
[12] Transgender Persons (Protection of Rights) Act 2019, s 13
[13] ‘WELFARE OF TRANSGENDER PERSONS IN INDIA: SLEW OF MEASURES BY CENTRAL GOVERNMENT IN LAST THREE YEARS’ (PIB, 30 June 2022) <https://static.pib.gov.in/WriteReadData/specificdocs/documents/2022/jun/doc202263068801.pdf> accessed 15 June 2024
[14] Ibid
[15] Ibid
[16] Ibid
[17] Moumita Barman, ‘Transgender Community and Higher Education in India’ (Centre For Development Policy And Practice, 19 February 2024) <https://www.cdpp.co.in/articles/transgender-community-and-higher-education-in-india#:~:text=Despite%20initiatives%20by%20the%20University,persist%20(Agha%2C%202019)> accessed 06 June 2024
[18] Dr. Jagannath K Dange et al., ‘Problems and Prospects of Transgender Education in India’ (2022) 2(1) Social Science Dialogue <https://www.thesocialsciencedialogue.com/post/problems-and-prospects-of-transgender-education-in-india-1> accessed 10 June 2024
[19] Ibid
