RESERVATION OF TRANSGENDERS IN SPORTS

RESERVATION OF TRANSGENDERS IN FIELD OF SPORTS

The existence of those human beings who do not confirm to their gender has been documented throught human history1.The term transgender is deeply rooted in Indian history, it has been an umbrella term. The problems that transgender are facing are more of a psychological rather than a social problem. They are still not accepted and recognized in the society. Transgender is a term for those people who do not fall either under male category or under female category. Transgender are usually defined as those “people relating to or being a person who identifies with or expresses a gender identity that differs from the one which corresponds to the person's sex at birth.” Transgender are those who have a different gender identity than the gender they had at birth, their gender does not identifies with the gender role assigned to them.
Sigment Freud in the Scheber case (1911) interpreted the term transgender as a conversion of homosexuality.
The Berkeley Gender Equality Resource Centre defines a transgender as a person who defines mismatch of the sex that they were born as and the sex they identify as2 These individuals’ internal identities usually do not match their sex that is assigned at birth and they feel to correct their anatomy through hormonal use, genital reconstruction surgery and corrective surgery.
For example, people who are born with a particular anatomy but they feel that they have been born into a wrong body and seek to change their sex by taking hormonal injections and prefer to have sex reassignment surgery.
You are defined as transgender under NSW3 anti discriminatory laws if :

you are identified as the opposite gender to your gender at birth and live as your identified gender

you identify as the opposite gender to your birth gender and seek to live as identified gender

you are intersexual (born with indeterminate sex, for example you have sexual part of both the sexes) and you live as a identified gender;

you are thought of as a transgender person.

Transgender people had no protection under any federal, state or anti-discriminatory laws.The government should take measures to prohibit discrimination on the basis of sexual orientation and transgender identity and take measures to promote equal rights and opportunities without discrimination of any kind.
CLASSIFICATION OF TRANSGENDERS IN INDIA4
In India there is wide range of transgenders classified as under:
1. HIJRAS- Hires belong to those members of community who are born as males but they refuse to accept their masculine identity and want to accept themselves as woman or “not man” or “neither men nor woman” or “in between man and woman”.
2. ARAVANIS AND 'THIRUNANGI'- Hires in Tamil Nadu identify as“Aravani”. Tamil Nadu Aravanigal Welfare Board, a state government's initiative under the Department of Social Welfare defines Aravanis as biological males who self-identify themselves as a woman trapped in a male's body.
3. KOTHI -Kothis are a heterogeneous group. 'Kothis' can be described as biological males who show varying degrees of 'femininity' - which may be situational. Some proportion of Kothis have bisexual behavior and get married to a woman. Kothis are generally of lower socioeconomic status and some engage in sex work for survival.
4. JOGTAS/JOGAPPAS-Jogtas or Jopgappas are those persons who are dedicated and serve as a servant of Goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and Karnataka. 'Jogta' refers to male servant of that Goddess and 'Jogti' refers to female servant (who is also sometimes referred to as 'Devadasi'). Sometimes, the term 'Jogti Hijras' is used to denote those male-to-female transgender persons who are devotees/servants of Goddess Renukha Devi and who are also in the Hijra communities.
5. SHIV-SHAKTHIS -Shiv-Shakthis are considerd as males who are possessed by or particularly close to a goddess and who have feminine gender expression. Usually, Shiv-Shakthis are inducted into the Shiv-Shakti community by senior gurus, who teach them the norms, customs, and rituals to be observed by them. In a ceremony, Shiv-Shakthis are married to a sword that represents male power or Shiva.

TRANSGENDER ISSUES
Transgenders in India are in a real predicament. They have been excluded from participating in politics, social and cultural life. The major reason for this exclusion is deemed to be that there is no proper recognition of this gender status of ‘hijras’ or other.transgender people. The lack of recognition is creating a serious hindrance in exercising their fundamental as well as civil rights.
“Recognition of transgender as a third gender is not a social or medical issue but a human rights issue.” They are being excluded in many spheres of the society i.e. political, social, cultural and economic spheres.
There are few questions likely to be put up to consider the status of transgenders in sports. What are the real challenges faced by transgenders? What are the various international instruments as well as provision in India for protection of transgenders? Why the transgenders should be entitled to benefit of reservation in the field of sports?

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EXPULSION FROM ECONOMIC PARTICIPATION AND LACK OF EMPLOYMENT OPPORTUNITY
Usually hijras are not accepted by their family members, they do not get any kind of support from their family in the long run. Transgenders have been facing many kind of challenges , discrimination and inequality in the society., workplace etc.
Established rules and gender norms at workplace makes it difficult for transgenders to cope up with. Such traditional rules and workplace. Moreover some employers don’t want to employ transgenders since they are gender biased.
This kind of discrimination makes it difficult for transgeneder to earn their livelihood.

EXPULSION FROM POLITICAL PARTICIPATION--Transgenders are being discriminated in political spheres as well, they have limited opportunity to context elections and vote. The right to context election still has to be taken into consideration. Transgenders have a option to vote in the elections as ‘other’ or as women. The legal validity of voter’s identity card is still in question. Transgenders had contested election in the past but their victory was still a question because that person contested election as ‘women’ which was considered as illegal and cheating.

INTERNATIONAL INTRUMENTS FOR PROTECTION
There are various kinds of international instruments for protection of human rights. International treaties are the basic foundation of international legal system to keep a check on any kind of discrimination and for protection of human rights. These binding treaties are used as an instrument to force the government to abide by the provisions of the treaty that are relevant for protection of the rights of LGBT. They address issues like harmful effects of discrimination on grounds of sex, gender etc, violation of rights such as right to privacy, equal protection of law and equality before law. UN Human Rights convention are the basis for protection of human rights; and rights of LGBT. The provisions for protection and promotion of human rights are enshrined in the two important treaties : International Covenant on Civil and Political Rights(ICCPR) and International Covenant on Economic, Social and Cultural Rights(ICESCR).
On 17/June/2011 the Human Rights Commitee adopted a resolution which emphasised that thge rights and values of all people should be equal regardless to gender iodentity and sexual orientation.
ICCPR was adopted on 1966 by UN General Assembly and came into force on 1976. There are two main important provisions enshrined under this Covenant regarding non discrimination and protection and promotion for individual rights i.e. Article 2 and Article 26.
1. Each State Party to the Covenant undertakes to respect and ensure that the individuals within its territory and jurisdiction enjoy the rights recognized in the Covenant, without any kind of discrimination, such as colour, sex, race, politics, public opinion, national or social origin, property, birth or other status.
2. Each State Party undertakes to take the necessary steps, in accordance with its constitutional processes with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. (b) To ensure that any person claiming such a remedy shall have his right to determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.6
In the landmark case Toonen v. Australia7 the Commonwealth Government passed a law overriding Tasmania’s law of criminalizing homosexul sex.
In this case the author was an activist for promotion of rights of homosexuals of Tasamania , he challenged sec 122 (a) and (c) and sec 123 of his country which criminalises sexual contact between men i.e. homosexuals men.
His argument was that the domestic criminal code of his country were discriminatory sine they prohibited all types of sexual contact between men and violative of article 2(1) and article 26 of International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Committee found that there was violation of ICCPR under article 2(1) with article 17 on the part of the state held that states are obliged to protect individuals from non discrimination and observed that law that criminalize and penalise private, adult and same sex relations violates right to privacy and right to non discrimination. The committee also agreed that Australia had committed breach of the obligations of the treaty.
Since the Toonen case, the Committee and other treaty bodies have supported other states to repeal the laws that criminalise same sex relations and urged the other states to take appropriate measures for discrimination.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Under Article 14 of The European Convention On Human Rights and Fundamental Freedoms does not states sexual orientation as a ground for discrimination whereas under Article 13 of under the EC Treaty the council of European Union has an option to take measures to prevent discrimination on the various grounds including sexual orientation8. Council Directive 2000/78/EC was adopted on 27/November/2000 which provides a general framework for equality of treatment in employment including prohibition on ground of sexual orientation.

FOREIGN MODEL

The LGBT persons are still subjected to discrimination and inhuman, ill and degrading treatment in Swedish society. The work for promotion of LGBT rights and protection against discrimination has been the priority issue for the government. The government of Sweden have proposed various legislations and enactments for promotion and protection of LGBT rights and prohibition against discrimination.9
In the recent developments and various legislations and acts the Sweden government has layed down that discrimination on the grounds of sexual orientation, gender identity or gender expression is violative of the basic principle of equal value and rights for all people and such discrimination is strictly prohibited whether explicitly or impliedly.
THE DISCRIMINATION ACT
A new Discrimination Act came into force in Sweden on 1 January 2009 to merge the various pieces of discrimination into one legislation or one act. The sexual orientation was already a ground for discrimination but two new grounds were also added as grounds for discrimination i.e. age and transgender identity.10 The Discrimination Act came into force to promote equal rights and opportunities regardless of sex, transgender identity, ethicinity, religion or other belief or sexual orientation or age.
This act helped to incorporate the provisions and protection against discrimination in various sectors of the society where the prohibition of discrimination had not already been legally regulated and recognised.
LEGISLATIONS IN SWEDEN
Sweden has worked actively in The Council of Europe to promote the drafting and the recommendations on protection against discrimination on the basis of transgender identity or expressions and sexual orientation. A recommendation was adopted in March 2010 by the Committee of Ministers on the implementation of LGBT rights.
The Swedish International Development Cooperation Agency (SIDA) proposed a new plan for action on these sensitive issues which were implemented from 2013. The organizations working for LGBT rights has increased and support for their rights is also increasing. SIDA is also contributing for the development and the changes and progress of LGBT persons and human rights.

TRANSGENDERS AND THEIR PROTECTION IN INDIAN CONTEXT
Transgenders in India have been facing with discrimination in various spheres of the society. Government should respect and recognise the identity of transgenders. No citizen should be discriminated on the basis of their gender identity.
The various instruments for protection of transgenders have been enumerated in India.
In the recent Supreme Court judgement on National Legal Services v. Union of India 11 where the court declared transgenders have right to be recognised as ‘third gender’ and they are included in other backward category (OBC) and are declared as socially and educationally backward class of citizens and therefore they are entitled to all those benefits which are available to these class of persons and they have right get equal opportunity in education and employment.
Since there is no suitable legislation for protection of the rights of transgenders we should follow ‘Yogikarta Principes’ and various International Covenants should be acknowledge and followed which are consistent with the fundamental rights that are enshrined in the Constitution of India.
APPLICATION OF YOGIKARTA PRINCIPLLES IN IMPROVING STATUS OF TRANSGENDERS
The Yogikarta Principles are a set of legally binding principles that were developed in November 2006 on application of International human rights law in relation to gender identity and sexual orientation issues.
Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity12, establishes the relevant legal framework, and provides definitions of key terms.
Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law: Principles 1-3 set out the universal application of principles of human rights to all persons without discrimination, as well right to be recognised equally before law.13
Rights to Human and Personal Security: Principles 4-11 address fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention.14
Economic, Social and Cultural Rights: Principles 12-18 highlight principle of non-discrimination and equal enjoyment of economic, social and cultural rights, including employment, accommodation, education and health.15
Rights to Expression, Opinion and Association: Principles 19 to 21 identifies the freedom to express oneself, one’s identity and one’s sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others.16
The Yogikarta Principles address the discrimination against the transgenders , ensures equality, provide authoritative guidelines on human rights of transgenders, gays, lesbians and bisexuals and obliges the State to ensure promotion and protection of these rights. The right to non discrimination on the basis of sexual orientation and gender identity is both a universal as well as fundamental right.
These principles give a basic legal standard that each state government should adopt to prohibit discrimination, violence and abuse against LGBT community.
India should comply with the judgement and adhere to principles of Human Rights Council and Yogikarta and try to curb any kind of discrimination and violence on the basis of sexual orientation and gender identity.

ROLE OF CONSTITUTION IN THE PROTECTION OF RIGHTS
In the present case the Supreme Court held that transgenders be treated as “third gender” for purpose of safeguarding their rights under Part III of Indian Constitution where State and Central Government are directed to take steps to treat them as socially and educationally backward class of citizens and to extend reservation in educational and public institutions.17
The judgement rests on the basis of Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty).18
Every person has a legal right to determine their identity and decide their sex orientation. The various fundamental rights are enshrined in the Constitution that acts as an instrument for protection of the rights of transgender.
ARTICLE 14-The state shall not deny to any person equality before law and equal protection of law. Therefore this article protects transgenders who are included in the expression ‘person’ and it puts an obligation upon the state to ensure that trangenders also enjoy equal protection of law in all the spheres of State activity.
ARTICLE 15 and 16-Both these articles prohibit gender biasness and any kind of discrimination on the basis of sex.The expression ‘sex’ in these articles is not only restricted to only biological males or females but also include people who does not fall in either male or female category. Since transgenders are declared as socially and educationally backward class therefore they are also entitled to protection under Article 15(4)19.
ARTICLE 19(1) (A)-The state is obliged and protect these rights.20
The counsel for the National Legal Service Authority claimed that transgenders have right to be declared as social and educationally backward class which are also given to male and female genders and transgenders fall within the expressions ‘persons’ for protection of their rights.
ARTICLE 21-Article 2121 uses the expression ‘person’ and therefore includes transgenders/hijras within its ambit.

RESERVATION IN SPORTS (CONCLUSION)
The transgenders are also discriminated in sports. Sometimes they are told to keep their gender identity secret or undergo sex reassignment surgery, they are not given equal treatment in sports as given to male or female atheletes. Issues of transgender is a latest question on equality at the present time. Transgender people should have equal opportunity to participate in sports. The core values of equal opportunity and fair treatment demands that the state should adopt effective policies to enable and encourage the transgenders to participate effectively in athelets.22 The issues of basic fairness and equity demands the expansion of our thoughts for inclusion of transgenders in sports.
Various organisations have been addressing the issue of participation of transgender in sports. The state should adopt proactive policies for inclusion of transgender in sports. Policies should be made to govern the participation of transgender in sports, policies should be based on sound medical knowledge and should take into account views of experts based on gender and sports and bioethics.
The International Olympic Committee was the first and mainstream governing body of sports that govern the participation of transgender athletes in Olympic games. This policy is known as Stockholm Consensus which came into force in 2004games in Athens Greece.23 The policy has three main criterias for participation of trans athletes24:
“They must have had gender reassignment surgery”
“They must have legal recognition of their assigned gender”
“They must have at least two years of hormone therapy”
In 2004 Indian Olympic Committee identified the status of transgenders in sports. However this was a controversial development since many claimed that this did not do anything useful for the participation of transgender athletes.
The State Government and sports organisations should adopt non-discrimination policy and include sexual orientation and expressions like gender identity in their policies.
Policies should be formulated by schools colleges as well as sports organizations to address issues of tansenders in sports and their inclusion in the field of sports.
Article 16 of the Constitution of India guarantees equality of opportunities to all citizens in matters of employment and no one shall be discriminated or ineligible on the grounds of sex, caste, religion etc in matters of employment under state and this articles also empowers the state to make reservation for appointment in favour of backward class of citizens which are not adequately represented under services of state.The Supreme Court declared transgenders in the expression ‘person’and are included in backward class therefore they are entitled to be benefitted from the provision of this article and hence should be entitiled to reservation in the field of sports.
The Constitution of India protects everyone from discrimination on basis of sex and guarantees equal opportunity to every person in every sphere of activity . Non discrimination on the basis of gender identity, sexual orientation and intersexuality should not only be recognised in other spheres of activity but also in sports which would only be an extension of the constitutional right.
In a democratic country like India where everyone has the equal right and freedom to choose his or her profession and has equal access to all rights and measures guaranteed by the Constitution of the country and therefore, gender identity should not be a ground for discrimination in the field of sports and transgenders should also be entitled to reservation in sports like reservation is made for socially and educationally backward classes.