Author: Vandya Nallamothu, B.A.,LL.B.(Hons.) from Symbiosis Law School, Pune
According to the World Health Organisation, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth.[i] According to the 2011 Census, the number of persons who do not identify as ‘male’ or ‘female’ but as ‘other’ stands at 4,87,803 (0.04% of the total population). This ‘other’ category applied to persons who did not identify as either male or female, and included transgender persons.[ii]
Transgender Community has for years faced everyday struggles to be accepted by society and to receive basic necessities such as employment, health insurance, education and social security. Despite trauma and agony over the years, not much has been done for the Transgender Community to elevate them from their struggles. There is a dire need for the Transgender Community to be protected and provided with basic amenities which is a fundamental right for every single citizen of India. In fact, before the Transgender Act, 2020 there has been no legislation whatsoever to protect the rights and lives of the Transgender Community. Finally, in November 2019, the Transgender Bill was passed in the Rajya Sabha. Following this, the President gave his assent to the bill in December 2019 and the Act came into force in January 2020.
The main agenda or purpose of any social welfare legislation would be to uplift the status and enhance the security of the marginalised. The sole criteria should be to ensure that the rights of the minority are protected at any cost. However, when the Transgender Bill 2019 was passed, it was only met with criticism by the Transgender community. Not only did it not have any provisions for the elevation of their social status, it also had provisions which were highly violating their fundamental rights as enshrined in the Indian Constitution.
TRANSGENDER PERSONS BILL 2014
In 2014, a revolutionary judgment was passed in the case of NALSA v. Union of India[iii]. In this case, there were many notable points made by the Supreme Court. To begin with, the transgender community was legally recognised as the ‘third gender’ and upheld their gender identities. The Court also directed the government to create and enforce social welfare schemes by way of medical care, reservation, etc. for the betterment and the protection of the community. This judgment was a ray of hope for the Transgender Community and also received widespread praise and attention. The first move to recognize these rights, legislation was made by Tiruchi Siva, Member of Parliament from Dravida Munnetra Kazagham party when she introduced a private member bill in the Lok Sabha.[iv] The aforesaid bill was unanimously passed by the Council of States but was never debated in the Lok Sabha.
A. Key points of the 2014 Bill
1. Development of a national policy for the welfare of the transgender community
2. Establishment of an special court for Transgenders, as well as State and National level Commission for Transgenders
3. Ensuring 2% reservation for the transgender community in educational institutions as well as in government jobs
4. Imposition of penalty for anyone who denigrate the transgender community inviting a punishment of imprisonment of up to 1 year along with fine.
This bill however, never became a legislation despite there being widespread approval from the Transgender Community. This was followed by a bill introduced by Thaawarchand Gehlot, the then Minister of Social Justice and empowerment which received severe backlash as it took away the right to self-identify which is a fundamental right as mentioned in the Indian Constitution. This Bill also never saw the light of day, in the form of an Act.
In 2018, the Navtej Singh Johar[v] judgment broke all barriers as it legalized all consensual intercourse including same- sex intercourse. Following this progressive judgment, the Minister of Social Justice and Welfare introduced the Transgender Bill, 2019 which later went on to become an Act. However, the Act was met with much disappointment by the Transgender Community.
KEY FEATURES OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
A. The bill provides a definition for the term, Transgender as a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.[vi]
B. A person has the right to self-perceived gender identity. A transgender person, according to the Act, has to obtain a Certificate of Identity from the District Magistrate as per the procedure laid down. In case of a revised certificate, the person would need to undergo surgery to change their gender to either male or female.
C. The Act talks about how there should not be any discrimination towards the Transgender Community in (i) education; (ii) employment; (iii) healthcare; (iv) access to public goods and facilities; (v) right to movement; (vi) right to rent or own property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment which has custody of a transgender person.[vi]
D. The Act mentions that there would be welfare schemes drawn out for the Transgender Community to facilitate a pathway for their livelihood, which would include vocational training and counselling. It also mentions the provision of healthcare facilities in view of sex-reassignment surgery, health insurance schemes and separate HIV centres.
E. The Act also mentions for the establishment of the National Council for Transgender (NCT) persons which would advise the centre on policies and legislations in the interest of the community. It would also review the policies formulated by the Centre.[viii]
F. The Act includes the penalty for offences committed against Transgender persons. The offences include compelling a transgender person to indulge in bonded labour, deny them an entry into a public space, force them to leave their house or place of residence and sexual abuse towards a transgender person. The Penalty for these offences is punishable with imprisonment for a period not less than 6 months extending up to a period of 2 years and/or fine.[ix]
SHORTCOMINGS OF THE ACT
A. Right to self-determination of identity is violated: The Supreme Court has mentioned that every individual has the right to self-identify and decide their own gender. It has clearly mentioned that the right to self-determination of one’s gender is a fundamental right under the Indian Constitution.[x] However, according to the Act, a transgender person must obtain a “Certificate of Identity” which will be approved by the District Magistrate. It places the power in the hands of the District Magistrate to either grant or deny the certificate. This is grossly violating the fundamental right of the Transgender person whose fundamental right of self-identification is clearly placed in the hands of the District Magistrate. The Act should have mentioned provisions of sensitization of District Magistrates towards the community as they have an abundance of power in deciding a transgender person’s gender and identity. If a transgender person is denied a Certificate of Identity, the Bill does not provide a mechanism for appeal or review of such decision of the District Magistrate.[xi]
Justice Siddharth Mridul has said, “A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”[xii] Therefore, this provision is violating court rulings as well as international standards for legal gender recognition. A 2015 report by the World Health Organization and the Asia-Pacific Transgender Network recommended that governments “take all necessary legislative, administrative, and other measures to fully recognize each person’s self-defined gender identity, with no medical requirements or discrimination on any grounds.”[xiii] Therefore, it is clearly seen that Section 4 and Section 6 of the Act are contradictory, as one grants the right to self-identity whereas the other mentions the seeking of approval of the District Magistrate for such certificate. This takes away the right of self-identity from the Transgender Community.
B. Reservation: The NALSA judgment pronounced in 2014 directed the Government to treat the Transgender Community as socially and economically backward classes and to provide reservation for them in educational institution as well as in government jobs. However, the Act is silent on this issue and does not mention any kind of reservation or ‘quota’ for the Transgender Persons and it is highly unlikely that there would be any positive change anytime soon.
C. No provision for legal marriage of transgender persons: Section 377 of the Indian Penal Code, 1860 has been decriminalised and has recognised same-sex relationships; however this is not enough to end the discrimination against the LGBTQ community. The law remains silent on same sex marriages being recognised and met with the same approval as heterosexual marriages. The Madras High Court held that a marriage solemnized between a male and a trans-woman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.[xiv] In a time when we are witnessing such progressive and inclusive judgments, it is unfortunate that there is no clause relating to same-sex marriages in the Transgender Act, 2019. Everyone feels the need to be accepted and included by society, and recognising same sex marriages is a stepping stone to smoothening Transgender persons’ acceptance into society.
D. Penalties: From a bare reading of the Act, it is clear that any kind of violence against Transgender Persons will receive a maximum of a 2 year imprisonment. One of the most disturbing aspects of this Act is that it is well known that sexual abuse is very rampant against Transgender Persons. Not only are they shamed for their bodies, but they are also sexually abused. Instead of taking strict and cautious measures, the maximum sentence for rape committed on a Trans person can only be for 2 years. Under the Indian Penal Code, 1860, the punishment for the offence of rape is a minimum of 7 years. However, for transgender persons, the security and the deterrence has been watered down when it should have been higher than the general provisions. This section thus is a travesty to the rights of the bodily integrity of transgender persons.
E. No Inclusion of Transgender persons in the laws: The Civil and criminal laws present in India identify only two genders: man and woman. There is also no provision in the 2019 Act specifying that these laws would apply to the Transgender Community as well.
Drawing inspiration from the NALSA judgment, the Act was supposed to be for the wellbeing of the Transgender Persons. However, the provisions contained in the Act are highly violating the rights of the Transgender Persons and are placing them on a rung lower than that which the rest of society rests on.
To ease out the criticism received towards the Act, the Centre passed Transgender Persons (Protection of Rights) Rules 2020 (the Rules) on 25th September, 2020.
One of the biggest takeaways of these rules is that, the mandatory medical examination has been removed and is a step in the right direction. Therefore, in order to obtain a Transgender certificate, there is no need for a medical examination. However, in order to be certified as male or female, the applicant must necessarily undergo medical intervention. A letter from the Chief medical officer that the applicant has undergone medical intervention is compulsory while obtaining a sex certificate. In case of a minor child, the application for a certificate of identity can only be made by a parent, guardian or a competent authority.[xv] This provision has ignored the trauma and abuse that Trans children go through at the hands of their families. This feature clearly violates the Right to self-determination of gender as laid down in the NALSA judgment.
The rules also mentions for welfare measures and schemes to be carried out in the interest of the Transgender Persons and to ensure that discrimination towards this community is put to an end. However, the rules are very vague in this aspect and do not provide any particular details as to how these welfare schemes will be carried out. It is also important to note that the Rules mention that a transgender person must be a resident of the jurisdiction of the Magistrate for a minimum period of one year before filing the application to declare their identity as transgender. However, certificates and licenses like the ones required in cases of a civil marriage or by the road transport department have a much lesser period of residence requirement (for instance, 30 days). This onerous one-year requirement has only been in place for transgender people. The Supreme Court in NALSA Judgment opined that the transgender community faces ostracism from family, unemployment, and homelessness in the society and therefore, it is argued that it becomes strenuous and burdensome for them to reside continuously in an area for seeking certification.[xvi]
The National Council for Transgender Persons will be set up which would be primarily responsible for the Transgender Community welfare. However, the Trans persons’ representation in this Council is limited to only 5 members, who will be chosen by the Central Government. The laws and protection that that Trans Community needs is better known by them, and hence, they should have a wider representation in the Council.
The Rules were released during the peak of lockdown due to a pandemic with only 30 days to respond to them. Not only that, they were only released in English, limiting the number of people who could read and understand the Rules. As people could not come together, and for lack of resources, the Trans Community had no way of opposing the rules or putting forth their concerns in a timely manner. Therefore, this misplaced legislation is causing discomfort to the one community it was supposed to protect.
Transgenders have been fighting for centuries to just be accepted by society. As a society, we have also repeatedly failed to recognise and respect the Trans Community, let alone include them in legislations. However, the mindset of the people is changing and they are becoming empathetic of the Transgender Community. However, the Act passed in 2019 is a sharp blow to the rights of the Transgender persons and in fact, the act reduces them to sub-humans. There are many provisions mentioned in the Act however, it is nowhere mentioned how they will be implemented. The discrimination faced by the Transgender Persons for centuries cannot be discounted, but there is no provision which accounts for the penalty of discrimination against them. The Act is arbitrary and vague, while also highly violating the fundamental rights of equality, privacy and dignity among others. The Centre must have a direct dialogue with the Transgender Community and note down their obstacles and make laws accordingly. This is the only way that there would be just and fair legislation protecting the rights of the Transgender Community.
ENDNOTES [i] “Transgender persons”, World Health Organisation [ii] Primary Census Abstract Data for Others (India & States/UTs), Census 2011 [iii] NALSA v. Union of India, [(2014) 5 SCC 438] [iv] The Rights of Transgender Persons Bill, 2014, Private Member Bill, August 24, 2015 [v] Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [vi] S. 2(k), The Transgender Persons (Protection of Rights) Act, 2019 [vii] Issues for Consideration: The Transgender Persons (Protection of Rights) Bill, 2019, PRS Legislative Research [viii] S. 16, The Transgender Persons (Protection of Rights) Act, 2019 [ix] S. 18, The Transgender Persons (Protection of Rights) Act, 2019 [x] NALSA v. Union of India, [(2014) 5 SCC 438] [xi] Issues for Consideration: The Transgender Persons (Protection of Rights) Bill, 2019, PRS Legislative Research [xii] Shivani Bhat v. State of NCT of Delhi, W.P.(CRL) 2133/2015 [xiii] Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating, Human Rights Watch [xiv] Arunkumar and Anr. V. The Inspector General of Registration, Chennai and Ors., WP(MD)No.4125 of 2019 [xv] In Posters: The Problem With The Revised Draft Trans Act Rules, 2020; Feminism in India [xvi] Ayush Mishra, Restoring Dignity: Nuances of Transgender Rights in India, JURIST – Professional Commentary, October 12, 2020