Inclusion of Transgenders in the Armed Forces?
Source: indianexpress
For Prelims: Unemployment, Central Armed Police Forces (CAPFs), National Human Rights Commission
For Mains: General Studies I: Indian Society, Morals, Social rights
General Studies III: Employment generation, Employment rates of transgenders in India
Highlights of the Article
National Human Rights Commission (NHRC)
Non-governmental organisations (NGOs)
Transgender Persons (Protection of Rights) Act, 2019
Universal Declaration of Human Rights (1948)
UPSC EXAM NOTES ANALYSIS:
1. Who are transgenders?
- Transgender people are individuals whose gender identity differs from the sex they were assigned at birth.
- When a child is born, they are often assigned a sex (male or female) based on physical characteristics, but gender identity goes beyond this binary understanding. Gender identity refers to an individual's deeply felt sense of being male, female, a blend of both, or neither—this sense may not align with the sex assigned at birth.
- For transgender individuals, their internal sense of gender does not match the sex they were identified as at birth.
- Some transgender people may undergo medical procedures or take hormones to align their physical appearance with their gender identity, while others may not pursue any medical intervention.
- It's important to note that being transgender is not a mental health disorder. However, transgender individuals may face various challenges, including societal discrimination, lack of acceptance, and barriers in accessing healthcare or social services.
- There is a diverse range of gender identities within the transgender umbrella, including but not limited to transgender men (assigned female at birth but identify as male), transgender women (assigned male at birth but identify as female), non-binary individuals (who don't strictly identify as male or female), and other gender identities.
- Respecting a person's self-identified gender and using their chosen name and pronouns is crucial in creating an inclusive and supportive environment for transgender individuals.
2. Employment rates of transgenders in India
- As per the 2011 census in India, there are around 4.88 lakh transgender individuals, but employment opportunities for them remain scarce.
- A 2018 study by the National Human Rights Commission (NHRC) highlighted that a vast majority (96%) face discrimination in employment, limiting their access to respectable jobs. This forces many into low-paying occupations or survival methods like sex work and begging. The study also revealed that 92% of transgender people struggle to find economic opportunities, even if they're qualified. Among them, over 89% believe there's a dearth of jobs for qualified individuals.
- Education-wise, 50 to 60% didn't receive formal schooling, and prejudice persisted for those who did.
- Around 52% faced harassment from classmates, 15% from teachers, causing many to discontinue their education. Employment rates in private sectors or NGOs were a mere 6%, and only 1% earned over Rs. 25,000 monthly.
- Most (26.35%) earned between Rs. 10,000 and Rs. 15,000. Alarmingly, about 23% were coerced into sex work, elevating their HIV infection risk 49 times higher than the general population
3. Supreme Court 2014 National Legal Services Authority vs Union of India Judgement
- In the National Legal Services Authority vs. Union of India ruling on April 15, 2014, the Indian Supreme Court recognized the distinct identity of transgender individuals, establishing them as a third gender within the Indian Constitution.
- Furthermore, on September 6, 2018, the Supreme Court invalidated Section 377 of the Indian Penal Code, decriminalizing homosexuality. Subsequently, the Transgender Persons (Protection of Rights) Act, 2019 defined transgender individuals as those whose gender identity doesn't align with their assigned gender at birth.
- This includes trans-men, trans-women, intersex individuals, gender-queer individuals, and those with socio-cultural identities like kinnar and hijra. Intersex variations refer to deviations in primary sexual traits, external genitalia, chromosomes, or hormones from the typical male or female at birth.
- The court in its 2014 ruling referenced the Yogyakarta Principles, recognized by the UN and other international platforms, which offer a comprehensive framework for understanding and advocating for gender-related human rights.
- The court extensively cited provisions from the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1966), and the Yogyakarta Principles.
- Due to the lack of specific legislation for transgender individuals in India at that time, the court, referring to Article 51 and Article 253 and drawing from past legal precedents like the Vishaka case, issued directives to the central and state governments. These directives were to be enforced until suitable legislation was enacted.
- The Transgender Persons (Protection of Rights) Act, 2019 mandates both government and private entities to refrain from discriminatory practices against transgender individuals in employment, including recruitment and promotion. Establishments are required to appoint a complaint officer responsible for addressing Act-related complaints. However, debates persist regarding the inclusion of transgender individuals in the Armed Forces.
4. Argument 1 : It’s not about the ability or right of transgenders
- Legal experts note that the Central Armed Police Forces (CAPF), along with army and police units, adopt a distinct psychological approach in their administration compared to other public institutions. Integrating transgender individuals into the CAPF might face hurdles due to the unconventional command philosophy.
- The proposal to include transgender individuals as assistant commandants signifies a hierarchical strategy, wherein commanding in military forces entails a unique conceptual framework.
- Mere success in the UPSC exams and assuming an officer role doesn't automatically confer the authority to command soldiers.
- Typically, after training, officers join their unit, undergo familiarization, and pre-induction training before assuming leadership.
- Soldiers follow directives based on respect and regard for the officer. Instances of command failure have led to mismanagement and, at times, serious consequences like fratricide. The issue isn't about transgender individuals' capabilities or legal rights but a deeper shift in culture.
- While the Supreme Court decriminalized homosexuality in the Navtej Singh Johar Vs Union of India (2018) case, the military maintains its prohibition due to a separate legal framework. Article 33 of the Constitution allows legislation to limit armed forces' fundamental rights.
- The Army Act, Navy Act, and Air Force Act can restrict liberties typically available to civilians. This article permits Parliament to define the scope of rights applicable to armed forces personnel, ensuring their duties' effective execution and maintaining discipline within their ranks. It encompasses combatants, non-combatants, police, paramilitary, and intelligence personnel rather than solely focusing on the military.
- A 2016 RAND study examined the impact of openly allowing transgender individuals in the US military. It outlined lessons from 18 nations permitting transgender troops, suggesting that India's armed forces could learn from these policies.
- Insights emphasize the need for diversity training and comprehensive transgender recruitment policies, serving as guidance for Indian policymakers. These findings not only assist in increasing transgender representation but also offer strategies to address opposition to inclusivity within the armed forces.
5. Argument 2: No empirical evidence that supports the argument that transgender people are unfit for service
- As outlined by M. Michelraj, a Public Administration PhD researcher, the transgender community in India held significant roles during the Mughal Empire, functioning as guardians of harems and aiding the royal family.
- They were esteemed for their astuteness, reliability, and unwavering dedication, enjoying unrestricted access and interaction with society. However, the arrival of the British led to a drastic shift.
- The colonizers exhibited disdain for transgender individuals, failing to comprehend the respect they garnered in legal proceedings. Designating them a "criminal tribe," the British deprived them of civil rights.
- In the Hina Haneefa vs State of Kerala 2020 case, the Kerala High Court adopted a progressive stance, allowing enrollment in the NCC unit based on fulfilling legal criteria, recognizing an individual's self-perceived gender. The court directed the army to amend the NCCA, 1948 within six months to enable admission based on self-perceived gender.
- A 2016 RAND study analyzing the impact of openly allowing transgender individuals in the US military highlighted lessons for India's armed forces from 18 nations permitting transgender troops.
- The study emphasized diversity training and comprehensive transgender recruitment policies, offering guidance for Indian policymakers to enhance transgender representation and address opposition to inclusivity.
- The Brookings Institution findings suggest that excluding a demographic from military service worsens societal stigma, reinforcing the perceived civic inferiority of that group.
- Dr. Gregory M. Herek's work, "Sexual orientation and military service: A social science perspective," supports the idea that every individual should serve their country when necessary. Openly including transgender individuals in the military would advance equality, be acknowledged beyond human rights, seen as vital for armed forces' contemporary viability by some scholars.
6. Conclusion
Scholars contend that a lack of factual data exists to substantiate the claim that transgender individuals are unsuitable for military service. Frequently referenced are reasons that suggest a potential inclination of transgender individuals towards experiencing challenges such as depression, anxiety, and suicide ideation. However, this assertion is disputed by the observation that these same concerns are prevalent across the broader LGBT population. Despite this, many countries do not restrict transgender individuals from receiving necessary services
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Practice Mains Questions
1.Discuss the evolution of LGBTQ rights globally and their current status in India. Analyze the legislative and judicial developments that have impacted LGBTQ rights in the country.
2.Explain the significance of the Navtej Singh Johar vs Union of India case in decriminalizing homosexuality in India. Assess its implications on LGBTQ rights and societal perceptions in the country.
3.Discuss the role of the armed forces in embracing diversity, particularly the inclusion of LGBTQ individuals. Evaluate the potential benefits and challenges associated with the integration of LGBTQ individuals in the military
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