Battling Transphobia: Providing Healthcare to All

“Inside every man there is a potential woman and inside every woman resides a potential man.”
― John Maxwell Taylor

Gender variant people mark their existence in India since various centuries, these communities have several indigenous identities mostly based on their geographic location they are known as Hijras (north), Shivshakti (Andhra Pradesh) and Arvani’s (Tamil Nadu). Historically, they were considered as a downtrodden class and due to this they have been away from the mainstream employment opportunities. Majority of the community has to resort to begging, dancing and sex work which makes them prone to harassment and subjects to violent assaults. If we look at the current statistics provided by NACO and the research conducted by government STI clinics it can be found that more than 45% of TG population who go for a medical checkup has HIV. Also, other diseases such as syphilis and genital warts were found to be in large number amongst the community. Hence it is necessary that they should be provided with rights with regard to healthcare.

Whenever there is a right enforced, there are numerous questions that emerge but the most pertinent one is who the beneficiaries are. The answer might seem very straightforward but it is generally not. Right to Healthcare is one such right; it is a universally acclaimed right and is also mentioned under International Covenant on Social Cultural and Economic Rights and in the Committee on Economic Social and Cultural Rights. India has laid great emphasis on healthcare, it identifies the fact that gender variant people are prone to discrimination and it also mentions in the 12fth five year plan. With context to Indian constitution, right to health derives its validity from Article 21 which deals with right to life and is also mentioned in directive principles of state policy. It is one of the implied rights, directs state to take action to promote healthcare.  Initially its scope was ambiguous but, State of Punjab and ors vs. Mohinder Singh Chawla [1]held that right to health is integral to right to life, and that state has a constitutional obligation to provide health facilities.

There have been incidents of discrimination reported: “Project Bolo” conducted interview with some transgender people across India it was found that they’ve faced discrimination in hospitals. There were major concerns were negligence by the hospital personnel, gender insensitivity and discrimination. Most of the hospitals refuse their admittance and in one’s which they’re admitted they face severe discrimination. One of the major problems that transgender women reported was not being admitted into female wards.

The very act of not admitting the patients is unconstitutional. There fundamental rights enshrined in Article 14 and Article 15 is being infringed. Article 14 allows reasonable classification, but the intent behind this exception is that sometimes, identical treatment to someone in unequal circumstances leads to discrimination. It explicitly prohibits class legislation “which includes group of people arbitrarily selected”. In this case the fact that TG people are not being allowed in the hospitals lead to class legislation as no reasonable justification can be found for their exclusion from their right to healthcare. Also, denying right to healthcare to transgender people on the basis of their sex is a clear violative of Article 14 as there is no intelligible differentia and reasonable nexus between the object sought i.e. to provide access to healthcare.

Article 15 of the constitution prohibits discrimination on grounds of “only” of sex. The term sex has to be interpreted liberally here it is not confined to one’s biological sex, it also includes gender identities. But the problem arises when we look at the Proviso attached, in clause 3 it states that “states can make special provision for women and children”. This proviso is interpreted wrongly and used arbitrarily to deny the transgender women of their rights. It is discriminatory because the distinction under the said proviso can only be made in the favor of women and not against them. But it arbitrarily distinguishes between some women who do not fit in the definition of a stereotypical woman, which here is a naturally born woman this amounts to class legislation.

Supreme Court has already given the guidelines as to claims made under Article 14 and 15. In the case of NALSA v. UOI[2], right to health of TG people was affirmed; it held that Article 14 uses the word ‘person’ and it also extends to transgender persons.  They’re entitled to “legal protection of laws” like any other citizen within the ambit of state activity, which also entails healthcare. The court added that non-recognition of their rights would result to extreme discrimination “in all spheres of society, especially healthcare”. Hence, resulting in the violation of their fundamental right to be free from discrimination engrained in Article 15.

Therefore it is the responsibility of the government to honor their basic right to healthcare. The suggestion, which I would offer is that by taking a gendered perspective on healthcare it, would account the health needs of people from varied categories and different sexual identities.

"The above article was written by Vyom Pankaj, a law student of Jindal Global Law School."

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[1]  AIR (1997) 2 SC 83

[2] WP (Civil) No 604 of 2013