RIGHT TO EDUCATION FOR TRANSGENDER CHILDREN: A ROUTE TOWARDS UNPREJUDICED HUMAN RIGHTS
– Navshesh Khetri
The Constitution of India guarantees right to free and compulsorily education between 6 to 14 years of children under Article 21-A as a fundamental right with an aim that not a single child should be deprived of education due to lack of financial help. In this regard, the biggest challenge India is facing at present is the education of transgender children who are deprived of primary education due to their inappropriate and unexpected gender role including other reasons which contributes to social exclusion. The recent judgment of Supreme Court of India in the National Legal Services Authority vs. Union of India which gave legal recognition to the transgender community for their empowerment and the upliftment of the marginalized group as there is a need for affirmative action on behalf of the government of India and state governments. This paper will focus on the constitutional goals and safeguards for the welfare of transgender children in the light of important judgments and how the Centre and State are effective in implementing these goals. In an unprecedented move, the Delhi government under the right to education act had ensured primary education for the transgender children by including them under ‘disadvantaged category’which will become a benchmark for other states as well to implement strong and effective education policies. The central government also has come up with a scheme to fund the family of a transgender child on monthly basis to ensure no dropout from schools. The present challenges before the Indian society is to achieve the goals enshrined under Article 14, 15, 16 and 21 of the constitution, accept the transgender children and enhance their employability skills, curb the dropout rate in the school by providing scholarships and to encourage transgender children for what they are from inside and not subject them to discrimination or violence.
Keywords: Transgender Children, Right to Education, Constitution of India, Government of India
Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy and sustainable human development.
In India, a child is considered equivalent to god and to ensure that every child should get freedom of thoughts and become independent than each parent must provide quality education for their progeny. Education whether it’s primary or higher gives an individual a direction to achieve their goals by knowing what exactly they want to become in life. Denying education to a child will not only deprive them of a fundamental right but prima facie violates their human rights. In a largest democracy like India, through the 86th Constitutional Amendment 2002, the Government of India had ensured Right to Education compulsorily from 6 to 14 years of age for every child by making it a fundamental right. Thestate being a welfare state wants to achieve the goals mentioned in the directive principles of state policy by making it a fundamental right but in this regard, the biggest challengeis enforcing Article 21-A of Indian Constitution i.e., Right to Education for the transgender children in India.
The transgender children are those who experience a gender identity or expression, or behaviour that is inconsistent with or not culturally associated with, the societal norms of their assigned sex. it is also called as gender dysphoria, where the person not behave in such a manner due to psychological causes but also biological ones related to their genetics or prenatal exposure to hormones. In early childhood, a child may express behaviour incongruent with their assigned gender and also experience rejection due to their different conduct.
The recent developments in the Indian society had witnessed a wave of change as the Supreme Court of India on 15th April 2014 has given legal recognition to the third gender i.e., the transgender community paving the way for ensuring social, political, cultural and economical empowerment for the marginalized group. In this regard, the Government of India and state governments are working together on the policies to ensure literacy among the transgender children for the fulfilment of the constitutional goals enshrined under Article 21 to ensure right to life and personal liberty and Article 451 for education to children below the age of six years. Despite the rights ensured by the constitution, it’s unfortunate that the state is failing to implement the education schemes
1 Article 45 of the Constitution of India, as originally enacted, provided that it is the obligation of the State to “endeavour to provide” within 10 years “for free and compulsory education for all children until they complete the age of fourteen years”.
for the transgender children due to less support from the society for providing an enormous boost to the self confidence and self esteem of the transgender children. The lack of awareness among the parents and negative attitude of the society is complicating the situation by making it worst for the transgender child.
Education is a right of every child and denying it by any mean leads to deprivation of social and cultural participation which makes the life of any children vulnerable. Similarly, the transgender children like any other children have the right to education and it’s the state prerogative to convince such parents to support their child mentally, physically and most importantly emotionally because the child itself does not know about their behaviour. The society too is having a responsibility to be affectionate towards transgender children and prevent them from any form of violence, discrimination and abuse if so happening. Right to education should not only cover those transgender children who are economically incapable but also social phenomenon should be seen which prevents a family to send them in a primary school. Hence, the seeds of knowledge can only be sown through education which will help transgender children to explore about themselves, their career and how to tackle the differences they are facing in the society.
II. Transgender children & Indian society
Due to transgender children divergent behaviour from the normative gender roles they faces social exclusion which not only generates tension, violence and disruption but also diminishes a sense of social responsibility in them and perpetuates inequality in the democratic society like India. Some of the instances which can be mentioned are:
1. The school’s itself where the transgender children experience emotional trauma, humiliation, torture (either mental or physical), unequal treatment by fellow peers who won’t accept them as normal and make fun of their behaviour, gestures, body language and bully them as well.
2. Discrimination begins at home when parents relegate the self-identity of their child
to a ‘medical condition’. Predilections for cross-dressing and ‘outlandish’ sexual choices are all erceived with disgust.2 The family without understanding the psychological condition of a child treat them as degraded and unworthy to live and later ostracise them or force them to leave parental house if identified as transgender which invariably has a severe negative impact on their ability to access and continue schooling.
2 Arati Nair &Arati Nair, The Jarring Truth about Trans People Living on the Fringes of ‘Normal’ Society Youth Ki Awaaz (2015), http://www.youthkiawaaz.com/2015/06/transgender-rights-in-india/ (last visited Mar 29, 2016).
3. In some cases, the schools either directly or indirectly ask or pressurize the parents due to social stigmato get admitted their child to other schools which is resulting into increase of dropout ratesin India.
4. Frequent experience of abuse and discrimination in the public places sometimes force transgender children to commit suicide. Here, it is important to note that being a transgender is not a disorder or a disease.
When a person faces continual harassment and ostracism, it affects their sense of self and places a heavy strain on their quality of life. The reality is that there is a lack of awareness and understanding of transgenderism.3 The society can only progress when they will accept the invisible group and make them visible with the help of legal developments otherwise with the growing age transgender children left with no choice but either to join prostitution (which may cause sexual transmitted infection) or dance in marriages or begging as a profession. If public perception will change, it would be easier to accommodate the transgender children in the society.
Hence, its important here to emphasize that there should be no reason to be disappointed about the way the child is behaving rather it is essential to ensure elementary education at school which will further retain them up to the higher level. The state should not only focus on the matter of welfare but also look at the development aspect at large for taking this marginalized group to the mainstream group by addressing the stigma at the early stage.
III. Right to Education in India: a boon for transgender children
The latest report of Census 2011 by the Government of India showed that there are
approximately 55,000 children’s between the ages 0-6,4
who were identified as
transgender or third gender by their parents willingly without having any phobia. Such evidences cast responsibility on the state to encounter the low literacy rate among the transgender children and the only tool to curb the menace is right to education. The affirmative actions through legal recognition were taken in the past by the Election Commission of India for issuing voter identity cards, State governments like Tamil Nadu had issued Ration Cards, reserved seats in government-owned art and science
3 The future of transgender rights — SOS Children, Soschildrensvillages.org.uk (2014), http://www. soschildrensvillages.org.uk/news/blog/transgender-rights (last visited Mar 29, 2016).
4 Rema Nagarajan, First count of third gender in census: 4.9 lakh, The Times of India, 2014, http://timesofindia.
indiatimes.com/ india/First-count-of-third-gender-in-census-4-9-lakh/articleshow/35741613.cms (last visited Mar 29, 2016).
colleges and Delhi Government allowed pension schemes for transgender. Now, the next step towards empowerment and development of transgender children would be providing Education through Article 21-A of the Constitution of India.
The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A ,5 means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.6 This legislation is of significant importance for the transgender children not only because they are weaker section but also the government at both the levels i.e., the centre and the state will act as a backbone to strengthen the goals enshrined in Constitution. The government of India, state governments and local authorities should consider the other social factors as a legal obligation apart from the financial aid (loans) which prohibits a transgender child to access free and compulsory elementary education. Apart from the state prerogative, the private educational institutions under the said act have to reserve 25 per cent seats for the weaker section and as a major responsible stakeholder such institutions should ensure that transgender children should also get admitted within that reserved seats. Now, it’s important to emphasize on Fundamental duty under Article 51A (k) of constitution which ensure that parent or guardian should provide education opportunities for his ward between the age of 6 and 14 years.
Education will help the transgender child to generate their interest or skills in any field of study through which they can get employment which can contribute strongly and effectively in the making of Indian economy.
IV. Supreme Court of India&International perspective towards transgender children education rights
The Supreme Court of India addressed the issue of Transgender education in the case of National Legal Services Authority vs. Union of India & Ors7, where not only legal recognition to the third gender8 is given but also the court upheld the protection of their
5 The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India “to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine”.
6 Elementary Education | Government of India, Ministry of Human Resource Development, Mhrd.gov.in (2016),
http://mhrd.gov.in/rte (last visited Mar 29, 2016).
7 Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013. Judgment delivered on 15 April 2014
8 Every person must have the right to decide his/her gender expression and identity, including transsexuals, Transgenders, and should have right to freely express their gender identity and be considered as a third sex.
fundamental rights like any other Indian citizen under Part-III of constitution by ensuring right to personal liberty, equality, dignity, freedom of expression, access to education or public employment without any discrimination on the basis of sex or gender, right against violence, discrimination and exploitation and the right to constitutional remedies. The Centre and State governments treat transgender persons as “socially and educationally backward classes of citizens” and extend two percent reservation for admission in educational intuitions including adequate facilities for higher education.
Further, the government while making education policy for transgender children should consider the judgment of Mohini Jain vs. State of Karnataka9, where the Apex court held, Right to Education is a fundamental right under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The state government is under an obligation to provide educational facilities at all levels to its citizens. In Unni Krishnan J.P. vs. State of Andhra Pradesh10, the Court held that, the Right to Education is implicit in the right to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive Principle of State Policy contained in Articles 41, 45 and 46.
While making Legislations, the Centre and State Government’s should keep in mind all those principles laid down under:
1. Article 1 of the UDHR, 194811, i.e., all human-beings are born free and equal in
dignity and rights and Article 3 which states that Everyone has the right to life, liberty and security of person including Article 26 which emphasize on everyone’s right to education and it shall be free, at least in the elementary and fundamental stages and directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.
2. The International Convention on Economic, Social and Cultural Rights (ICESCR) which includes Right to Education for all including the dependent child under Article 10 and 13;
3. Article 8 of the Convention on the Rights of the Child which preserve right of one’s
9 AIR 1992 SC 1858
10 AIR 1993 SC 2178
11 The Universal Declaration of Human Rights | United Nations, Un.org (2016), http://www.un.org/en/universal- declaration-human-rights/ (last visited Mar 29, 2016).
in 2014 noted, that “The discrimination and harm that
transgender children and parents face stems from attitudes that do not accept all individuals as equal…”such discrimination can manifest as “marginalization and exclusion from essential services like education.
V. India’s initiative towards transgender children education
After India got independence, initially the subject matter of education was under the State List for ten years. Later on, through the 42nd Amendment Act of 1976 it got shifted to the Concurrent List. Now, it’s not only the State Government but Parliament too can enact legislations, draft policies and schemes regarding education. From this incident, it can be inferred that governments at both the levels became permanent partners to make the delivery process more efficient with the help of great sensitivity and care.
The Union Government after the landmark judgment of National Legal Services Authority (NALSA) vs. Union of India and Ors13 is now working on the transgender bill for the overall social, economical, cultural and political upliftment and development of the community. On 24 April 2015, the Rajyasabha unanimously passed the Rights of Transgender Persons Bill, 2014 having a range of substantive rights; one of the key features of the bill is two percent reservation in primary, secondary and higher education.14 The bill still needs amendments before presented in the Lok sabha like inclusion of anti-discrimination and anti-bullying cells to prevent dropouts under the education chapter (educational institutions to provide for inclusive education for transgender children) of the Bill, school curricula include transgender issues from the start which must be accompanied by teacher sensitisation and expand its reference to “transgender children” to include “gender non-conforming children”.15
The Union Human Resource Development (HRD) Ministry on 25 July 2014 has advised all the states16 and union territoriesto take appropriate action for the inclusion of “third
12 UNICEF’s 2014 position paper on ending discrimination on the basis of sexual orientation and gender identity. Letter to the Government of Ireland on the Rights of Transgender Children, Human Rights Watch (2015), https://www.hrw.org/news/2015/07/14/letter-government-ireland-rights-transgender-children (last visited Mar
13 AIR 2014 SC 1863
14 The Rights of Transgender Persons Bill, 2014, Currentaffairs.gktoday.in (2015), http://currentaffairs. gktoday.in/rajya-sabha-passes-rights-transgender-persons-bill-2014-04201522124.html (last visited Mar 29, 2016).The Central Government will introduce the bill in Lok Sabha only in the comprehensive form as the government feels that the Bill still needs some changes in its present form.
15 Danish Sheikh, for those marked ‘Other’ The Indian Express (2015), http://indianexpress.com/article / opinion/
columns/for-those-marked-other/ (last visited Mar 29, 2016).
16 Except The State of Jammu and Kashmir
gender’’ children among socially and educationally backward classes for admission in educational institutions under the Sarva Shiksha Abhiyan17 to universalise elementary
Even ahead of the Apex courts order it has been tweaked to provide
transgender as an option from 2013-2014 onwards along with male and female under the National Means-cum-Merit Scholarship Scheme and the National Scheme of Incentive to Girls for Secondary Education. The University Grant Commission too had issued a circular for the Transgenders scholarship and fellowship schemes to promote and enhance the full enjoyment of all human rights by all persons irrespective of their sexual orientation or gender identity.
Five Year Plan (2012-17) provides recommendation for transgender
community education with financial assistance19 and on that basis the Ministry of Social Justice and Empowerment has constituted an Expert Committee for studying in-depth problems of transgender community and had submitted report with recommendations of an Umbrella scheme20 for the empowerment and welfare of Transgender children. The Scheme for supportive Money to the Parents of Transgender children is a progressive measure taken by the Union Ministry of Social Justice and Empowerment in accordance with Article 4121, one aspect covered is education where the state is trying to secure fundamental rights given under Article 14 i.e., equality before the law, Article 19 (1) freedom of speech and expression for all citizens, Article 21 for right to life and personal liberty and prohibit discrimination on the ground of sex under article 15 (1), 15 (2) and 16(2) of the Indian constitution. Under this scheme,100% Central assistance from the Government of India will be received by the State Government and Union Territory Administrations and Rs. 1000/- per month would be provided to each transgender parent per child.22
17 The affirmative action provided for Transgenders under the Sarva Shiksha Abhiyan (SSA) is aimed at pushing up their literacy levels, which is around 44 per cent as opposed to the national average of 74 per cent as recorded in the 2011 Census.
18 Right To Education, Righttoeducation.in (2014), http://righttoeducation.in/media/news/2014/07/25/include-
third-gender-children-in-schools-hrd-ministry (last visited Mar 29, 2016).
19 Indian Exclusion Report 2013, (2013), http://www.indianet.nl/pdf/IndiaExclusionReport2013-2014.pdf (last visited Mar 29, 2016).
20 Five Centrally Sponsored Schemes for the Welfare of Transgender Persons: Financial support to the parents of
Transgender children, Pre-matric and Post-matric Scholarship for transgender students, Assistance for skill development training and National Pension scheme for transgender persons.
21 Article 41 of the Indian Constitution states that, the State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
22 This scheme proposes to cover about 5000 beneficiaries (parents of transgender children) in a year.Scheme of
Financial support to parents of Transgender Children, http://himachal.nic.in/ (2015), http://himachal.nic.in / WriteReadData/l892s/9_l892s/scan0001-74363681.pdf (last visited Mar 29, 2016).
For the first time, Tamilnadu government’s education department has issued guidelines for schools to provide for counselling of transgender students and their families to ensure they don’t disown them, and ensuring disciplinary action against schools including permission for transgender students to join any college of their choice for undergraduate courses.23 The State government issued an order on November 8, 2011 which expanded the definition to include transgender children under the RTE Act, 200924 .The Kerala Government had also included Transgender child from the age of 6 to 14 years belonging to SC’s, ST’s and families engaged in traditional means of livelihood under “child belonging to disadvantaged group25”.
In the National Capital of Delhi, a notification26 notified by the Lieutenant governor Najeeb Jung has included transgender kids under economically weaker sections and given reservation in Delhi schools under the 25 per cent quota meant for the disadvantaged students category for admission (the health department will issue the certificate only after ascertaining the gender), allowing them to pursue studies free of cost under the Right to Education Act, 2009. The ‘transgender’ child is included within the meaning of ‘child’belonging to a ‘disadvantaged group as defined in the section 2(d) of the RTE Act’27.
Similarly, the Chhattisgarh Government came up with Equal Right & Free education policy whereby they will provide equal rights to transgender children28 or those facing identity crisis, by compulsory admission and free education including books, uniforms, food and equal participation in all educational institutions. Also, the Chhattisgarh School Education Department has ordered formation of special monitoring committee
23 The Tamil Nadu government issued an order in May 2008, Rights of Transgender People – Sensitising Officers to Provide Access to Justice, Justice P. Sathasivam (2011), http://www.tnsja.tn.nic.in/ article/Rights%2 0of%20 Transgender%20PSJ.pdf (last visited Mar 29, 2016).
24 Mohamed S., Advantages and disadvantages of RTE Act The Hindu (2013), http://www.thehindu.com/news/
cities/Madurai/advantages-and-disadvantages-of-rte-act/article4735501.ece (last visited Mar 29, 2016).
25 Section 2 (g) of The Right of Children to Free and Compulsory Education Kerala Rules 2010, http://www.azimpremjifoundation.org/pdf/Kerala_RTE_Rule_17-12-2010.pdf
26 eGazette Number:No.F.DE23 (42)/RTE/2013-14/1305-1314 dated on 09.10.2014, the notification was issued by
the Directorate of Education and the order will be applicable to all schools situated within the National Capital Territory of Delhi.
27 Transgender kids quota, ABP Live (2014), http://www.abplive.in/india-news/transgender-kids-quota-95710
(last visited Mar 29, 2016).
28 As per the survey conducted by National Aids Control Organization in the State of Chhattisgarh to identify and register transgender, it revealed that there is one child transgender in every 12 transgender.
presided by the head master, has also been made mandatory to prevent transgender children from ridiculed behaviour and pestering in schools by other students. The monitoring body in schools would also keep a watch on suspected29.
Replicating the five centrally sponsored sub-schemesof the Central Government for social and academic development, the state government of Odisha via newly created Department of Social Security and Empowerment of Persons with Disabilities is financially aiding parents of transgender children with Rs. 1,000 every month30. Also, centrally-sponsored scheme of Pre-matric scholarship for transgender students from classes VIII to X and post-matric scholarship for the day scholars and hostel students (studying in classes XI and above), with a reimbursement of compulsory refundable fees during higher studies in India.31
India is going through a transition whether it’s the Judiciary by acknowledging gender based violence as a fundamental violation of human rights or Legislature which is enacting the education schemes for the transgender children shows its seriousness towards upliftment of the marginalized group. At present, it’s the government’s responsibility (at Centre and State Level) through mass awareness to curb those barriers and associated taboo which prohibits access to elementary education like bullying and harassment of transgender child at home and families on account of their gender. Violation of Article 21-A by schools, students and teachers to treat them differently or
29 Rashmi Drolia, Transgender children skeptical about Chhattisgarh government’s equal right & free education policy, The Times of India, 2015, http://timesofindia.indiatimes.com/india/Transgender-children-skeptical- about-Chhattisgarh-governments-equal-right-free-education-policy/articleshow/47619242.cms (last visited Mar 29, 2016).
30 Transgender Students in classes VIII to X will receive assistance, with day scholars being given Rs. 150 and
hostel students Rs. 350 for 10 months in a year under a pre-matric scholarship and post-matric scholarship of Rs. 550 for day scholars and Rs. 1,200 for hostel students. The Objective of this scheme is to minimize the incidence of drop-out, especially in the transition from the elementary to secondary stage and to improve participation of transgender children in pre-matric stage so that they can progress and perform better in the post-matric stage of education. Shahana Yasmin, Odisha Government Introduces Pension Schemes and Scholarships for Transgender Empowerment Vaga Bomb (2015), http://www.vagabomb.com/Odisha-Government-Introduces-Pension- Schemes-and-Scholarships-for-Transgender-Empowerment/ (last visited Mar 29, 2016).
31 Guidelines by the Ministry of Social Justice & Empowerment Government of India, Scholarships will be paid to
such students whose parents/guardians income for all sources does not exceed Rs. 2,50,000/- per annum, Centrally-Sponsored Scheme of Pre Matric Scholarship For Transgender Students, http://himachal.nic.in/ (2015), http://himachal.nic.in/WriteReadData/l892s/9_l892s/scan0001-28709629.pdf (last visited Mar 29,
which discourages a child to give up studies or any gender based violence will directly hits at the root of Article 14,19 and 21.
Hence, provisions to be made in law for stringent measures against those who ill-treat transgender children through which a sense of respect should be developed in the Society. To ensure Right to education Schools should include “gender identity” and “gender expression” within its non-discrimination policies, zero tolerance guidelines to handle bullying, positive transgender literature in school library, help the child to open up with the school staff, respect them for their sense of self irrespective of in whatever attire a child comes to school, support them in developing their gender identity and make them feel emotionally safe by which transgender students and their parents will get confidence without any struggle to access primary education. Teachers should aware all children from the beginning that different people identify their gender differently and their choices should be respected.
The Central Government like Sarva Shiksha Abhiyan should also review existing schemes like Rashtriya Madhyamik Shiksha Abhiyan, Jan Shikshan Sansthan at primary and secondary level to include transgender children unless they attain the age of 14 but State should also commit to provide them enabling environment for equal access to education opportunities at higher level studies after the completion of 14 years. MHRD through National Council for Teacher Education may prepare an Inclusive policy to sensitize teachers on transgender is required to make the teachers explicitly positive and vocal about transgender identities and also to train administrative bodies in schools to create a classroom environment which nurture all students without falling into any perceived social norm.
Like Delhi, Tamilnadu and Chhattisgarh,the scheme by Ministry of Social justice and Empowerment on right to education cast a positive obligation on other State Governments (less than 20 percent state governments had introduced such legislations and policies) to implement it by making policies or schemes as per their requirement for transgender children without discriminating on the basis of religion, race, caste, sex, gender, place of birth etc., so that they are also admitted in private unaided schools under section 12(1) (c) of the RTE Act, 2009.All transgender students should have equal opportunity to participate in all the school activities like sports, recreation, leisure
90 The legal Voice of India
activities and facilities, including bathroom and locker rooms in consistent with their gender identity. There is no need to establish separate schools for transgender children rather inclusive education is needed so that the negative attitude of the members of society can curbed. Lastly, such affirmative action’s will be efficient and successful when Centre and State Government’s with the help of Media will work to sensitize in all the forums about the need of transgender children education and then only they will turn into professionally skilled workforce who will later contribute to the Indian economy.