A critical analysis on sex - gender variation: a lex-loci determination - Euro Afro Studies International Journal

Issue: 1, Volume: 1, Year: 2019

A critical analysis on sex – gender variation: a lex-loci determination

Date of Publication : 07, Dec, 2019

Date Of Acceptance : 1 Dec, 2019


Area of research / Subject: Analysis on sex - gender variation/ Law

The problem of sex determination can be treated as a form of sex discrimination and violation of human right. In spite of national and international protections, transsexuals have been a neglected community in this rem, Trans sexualism often speak of an experiencing this situation as an imprisonment in the wrong body.” Any discussion on the Third Gender must begin with the distinction between the much ignored or may be deliberately under-played difference between the concepts of “gender identity‟ and “sexual orientation hence the sexual differentiation from sex discrimination. Author tried his best to explore that the sexual orientation, which lies at the core of “private space”, is expressed through sexual relations and ought to be viewed as a core part of individual identity and as an inalienable component of the Right to Life. Trans-sexualize is an ancient phenomenon, which became more widely known to the court only in this 20th century because with the possibility of sex change surgery arising, the law typically has operated under the assumption that the terms male and female are fixed and unambiguous despite medical literature demonstrating that these assumptions are not true especially in matters related to sex and gender variation. Apart from inter sex persons, many more variation exist like transgender, transsexual and transvestite, who constantly have challenged the socio-legal binary exemption as sex and gender. On this basis the Court rejected the biologically determined binary of male or female gender. It declared that India’s centre and state governments should grant legal recognition of a transgender person’s identity as male, female or third gender in accordance with that person’s self-identification. It also declared that centre and state governments should take positive measures to fully realize the rights of transgender people includes as ensuring that transgender people benefit from reservations for educational institutions and public appointments; making available focused medical care and social welfare schemes; and conducting public awareness raising campaigns to reduce society’s ostracisation of the represented groups. In a judgment which drew heavily from international human rights principles and standards, the Court found violations of a number of fundamental rights under the Indian Constitution. Specifically, the Court stated that the right to choose one’s gender identity is integral to the right to a life with dignity and therefore falls within the scope of the right to life under the Indian Constitution (Article 21). The right to equality before the law under Article 14 of the Indian Constitution applies to all persons, including transgender persons, who are thereby entitled to equal protection of the law in all spheres including employment, health care, education and civil rights. The prohibition of sex discrimination under Articles 15 and 16 of the Constitution is a prohibition against all forms of gender bias and gender based discrimination including discrimination against transgender people. The state is obliged to take affirmative action to advance “socially and educationally backward classes” and this includes transgender people, who have faced centuries of injustice (Article 15(4)). Expressing one’s identity through words, dress, action or behavior is included in the right to freedom of expression (Article 19). The values of privacy, self-identity, autonomy and personal integrity are also fundamental rights under Article 19 and these rights belong to transgender people as well as others, in this background, the current paper makes an attempt to highlight the exploitation which the victims of injustice with alternative identities have been subjected to, both socio and legal complexity. The discourse of social justice, from distribution or redistribution to a dignified recognition, primarily with reference to the injustices associated with sexuality and gender, both of all are viewed by the author as socio-cultural and are seen to be rooted in social patterns of representation, interpretation, and communication. All legal consequence is concluding remarks of self identification of self determination for Gender, Sexual Orientation, Yogyakarta Principle and its social recognitions is an important part of the constitutional right to live with dignity as a mankind. The best analysis is explained with justification in this present core paper with full context at the last quarter of 21st century in the gracious interest justice.


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Keywords : sex-gender variation, Trans sexualism, problem of sex determination, third gender, violation of human right,

DOI (Digital Object Identifier) Number: http://doi.org/10.5281/zenodo.3566720

Serial: 4 Download Page: 61 - 80