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Today’s blog offers helpful tips and guidance on how the members of the legal system and other caregivers can best provide culturally responsive care to clients across the gender identity spectrum.

Let’s talk about gender identity

Often used interchangeably in casual conversation, sex and gender are distinct from one another. A person’s sex is assigned at birth based on physical and physiological features such as anatomy, genetics, and hormones. In contrast, how we perceive gender is based on how we internalize longstanding, socially constructed roles that have historically been limited to a binary of man/woman or boy/girl. However, there are notable exceptions, such as the Two Spirit people of the Zuni and Crow Nations, the Nguii, a third gender recognized by the Zapotecs, the Bakla in pre-colonial Philippines, or the Hijra in South Asia.

Gender identity is how we view ourselves internally and through our individual experiences with gender. A person’s gender identity may be the same or different from their birth-assigned sex, may not be confined to a binary (man/woman or boy/girl), and could shift over time. There’s a lot of diversity in how individuals and groups understand, experience, and express gender. It can be based on the roles they choose, the expectations placed on them, how they relate to others, and the complex ways that gender is regulated by society.

Introduction

Gender diversity is a complex and multifaceted issue that affects individuals across the globe. People who identify as transgender, genderqueer, non-binary, or intersex face unique challenges in society due to the stigma and discrimination associated with their gender identity. The Indian judiciary has an important role to play in ensuring that gender diverse people are treated fairly and equitably. In this essay, we will explore the ways in which the judiciary can take care of gender diverse people in India.

The Legal Framework

The Indian judiciary has a strong legal framework in place to protect the rights of gender diverse people. The Transgender Persons (Protection of Rights) Act, 2019, which came into effect on January 10, 2020, recognizes the right of every person to self-identify their gender and provides for the protection of transgender persons from discrimination, harassment, and violence. The Act also provides for the creation of a National Council for Transgender Persons to monitor the implementation of the Act and advise the government on issues related to transgender persons.

The judiciary has played an important role in interpreting and enforcing the legal framework for gender diverse people. In a landmark judgment in 2014, the Supreme Court recognized transgender persons as a “third gender” and directed the government to provide them with equal rights and opportunities. The Court also directed the government to create separate toilets and changing rooms for transgender persons in public buildings and to provide them with healthcare and education facilities.

Challenges and Solutions

Despite the legal framework and the efforts of the judiciary, gender diverse people in India continue to face challenges in accessing their rights. Discrimination, harassment, and violence against transgender persons are still prevalent in society, and many face barriers in accessing education, employment, and healthcare.

To address these challenges, the judiciary can take several steps. First, it can ensure that the legal framework is effectively implemented at all levels of government. This can be achieved through regular monitoring and review of government policies and programs to ensure that they are inclusive of gender diverse people. The judiciary can also use its powers to hold government officials accountable for failing to implement the legal framework.

Second, the judiciary can play an important role in raising awareness and sensitising society about the rights of gender diverse people. It can do this by conducting training programs for judges, lawyers, and other legal professionals on the legal framework and the issues facing gender diverse people. The judiciary can also collaborate with civil society organizations to conduct outreach programs and awareness campaigns in schools, colleges, and communities to promote inclusion and diversity.

Conclusion

Gender diversity is an important issue that requires attention and action from all sectors of society, including the judiciary. The legal framework for gender diverse people in India is strong, but implementation and enforcement remain a challenge. The judiciary can take care of gender diverse people by ensuring that the legal framework is effectively implemented, raising awareness and sensitizing society, and holding government officials accountable. By working together, we can create a society that is more inclusive and equitable for all.

Glossary of Terms

Cis or Cisgender: of, relating to, or being a person whose gender identity corresponds with the sex the person had or was identified as having at birth.

Gender diversity: A gender expression that is different from cultural norms for that gender.

Gender dysphoria: Distress or extreme discomfort due to identifying as a different gender than one’s gender assigned at birth. Only some gender-nonconforming people experience gender dysphoria at some point in their life.

Gender expression: A person’s outward appearance or behavior as it relates to the gender others perceive them as being.

Gender identity: A person’s internal feeling of being masculine/feminine, man/woman or boy/girl, neither, or an alternative gender or variation on existing gender expression.

Gender nonconforming: An adjective describing somebody whose gender identity or expression does not conform with their assigned sex at birth.

LGBTQIA+: Lesbian, gay, bisexual, transgender, queer/questioning, intersex, and asexual/aromantic/agender. (Tip: A does not stand for Ally.)

Transgender: People whose gender identity differs from their assigned sex. They may or may not use medical assistance to transition to a different sex.

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