TRANSGENDER PERSON (PROTECTION OF RIGHTS)
Nitya Sharma & Aanvi Parashar, II year of B.A.,LL.B.(Hons.) from Himachal Pradesh National Law University
Transgender / adjective
: of, relating to, or being a person whose gender identity differs from the sex the person had or was identified as having at birth
India is among the most religiously and traditionally diverse nations in the world with an extensive history, reflecting the customs and conventions birthed during an older era that, interestingly enough, continue to prevail hitherto. Likewise, the transgender community too finds recognition in both, the ancient history and the contemporary scenario. Transgender Community, an umbrella term, comprises of Hijras, Kothis, Aravanis and Shiv-Shakthis etc. and marks a strong historical presence in the Hindu mythology. Kama Shastra’, an ancient Hindu text and an integral part of Vedic and Puranic literatures, refers to the community as ‘tritiyapakriti’ categorising it as a ‘third nature’.
In the epic Ramayana, the ‘hijras’ alone, among Lord Rama’s followers, decided to accompany him during his exile after all ‘men and women’ were asked to return to the kingdom. Impressed by them, Rama sanctioned the Hijras the power to confer blessings to people on auspicious occasions like childbirth and married. Bahuchara Mata, a Hindu Goddess, is considered as the patronage of the Hijra community in India, illustrating not only how accepting the society was but also how the transgender community was respected as equals. The British altered the moralities of society entirely by establishing ‘gender/sexuality deviant’ laws, identifying and detesting the transgender community for their defiant behaviour of sexual/gender roles and for blurring the boundaries of culturally accepted gender norms.
In history, we find that transgender people in India have been perpetual victims of discrimination and deprivation of fundamental civil liberties. Finally, in 2012, National Legal Services Authority of India, extending its support to the transgender community, filed a petition in the Supreme Court on their behalf, demanding equal rights and legal assertion of their gender identity.
On April 15, 2014, the Supreme Court, in a landmark ruling, upheld that the fundamental rights inscribed in the constitution will be equally applicable to them as any other citizen and documented them as the third gender (earlier forced to categorize themselves as either male or female).
The Supreme Court ordered the Centre to identify transgender persons as socially and economically backwards, run social welfare schemes and create awareness in the common masses to eradicate pre-existing stigma. On April 24, 2015, Tiruchi Siva tabled the Rights of Transgender Persons Bill, 2014 in Rajya Sabha arguing that the leading democracies in the world had formulated legislations to safeguard the rights of transgender persons. In August 2016, Thawar Chand Gehlot, introduced the Transgender Persons (Protection of Rights) Bill, 2016 in the Lok Sabha, facing vehement opposition. Salient features of the bill included the definition of
‘Transgender’, recognition of the identity of transgender persons, amendment in the procedure for getting the certificate, social security and the establishment of a National Council for Transgender Person. Drawbacks like vagueness in the definition, absence of reservation, criminalization of begging still persisted. On December 17, 2018, major amendments to the Bill were introduced including: a proper definition of the term
‘Transgender’, inclusive of socio-cultural identities; after undergoing sex reassignment surgery, a transgender could make an application, along with the certificate issued by the medical officer of the institute where an individual has undergone surgery, for a revised certificate to the District Magistrate without requiring the recommendation of the District Screening Committee;Appointing a complaint officer in every establishment; the covering of medical expenses of a transgender person by a government insurance policy; empowerment of The National Council of Transgender for redress al of grievances. Bill was passed on December 18, 2018; it was primarily criticised for not removing the provision of the establishment of the District Screening Committee for issuance of Identity Certificate since it contradicts the right to self-perceived gender identity. As a result, the bill lapsed, and a new version of the bill was tabled, known as Transgender Persons (Protection of Rights) Act, 2019.
The bill was passed but excluded the provision which authorised the establishment of the District Screening Committee, i.e., a transgender person does not have the right to self-perceived gender identity without undergoing sex surgery. The bill decriminalised begging, but mandatory provisions remain unaccounted for, the bill is remaining pending in the Rajya Sabha.
The purpose of the diluted Act was the provision of solutions to the problems faced by the TGC in India and provide legal recognition. But when it comes to the Act defining who a transgender is, the reading of the definition hints at the binary notions about sex and gender. The definition given under Section 2 (k)  talks about the gender assigned to a transgender person at birth differing from the gender they feel they belong to. This statement is conventionally incorrect as the binary comprehension of and the relationship between sex and gender is merely a societal construct. Section 4 (2) 
acknowledges the right of a transgender person to adopt their self-perceived gender, ideally meaning that the transgender person has full autonomy in deciding their gender. But as we read further, Section 5 (1) mandates a transgender person to go to the District Magistrate for the issuance of a certificate that confirms their identity after undergoing a medical examination conducted by health practitioners and psychologists to give proof of their self-perceived identity, this being entirely in contravention to Section 4 (2). The aim of the NALSA case was to view the TGC as ordinary humans who have the right to identify themselves the way they wish to without it affecting their dignity. The judges clearly laid down in the case that gender is an internal feeling which has an expression, having nothing to do with the physiology. Yet, the Act talks about trans-people going under gender replacement surgery.
Lastly, Section 16 which establishes a National Council for Transgender Persons, states that the representatives from the TGC of each region will be nominated by the Central Government, undermining the authenticity of the selection process while infringing a direct right to vote for one’s representatives. The Act is looked down by the TGC, conferring no better present than their past.
Violence against the transgender
Community has prevailed since the British Rule. Since then, the historical significance of the community has been acknowledged, deeming their protection extremely crucial, on paper, but the ground reality portrays otherwise. Alka was a 16-year old transgender woman killed allegedly because two men realised that she was not a cisgender woman; they ‘punished’ Alka by mutilating her genitalia and killing her. This happened in Chhattisgarh. A few days after in Delhi; two men allegedly tried to sexually assault a 21-year-old transgender woman on the midnight of January 20, 2019, shot her in the abdomen when she resisted and threw her out of the moving car. Amrita Sarkar, a transgender activist, recounts an experience of sexual assault in public: “It was seven or eight years back when I was in Kolkata during Durga Puja. I was with four of my transgender friends, and we were standing in the line to attend the ceremony when seven to eight guys approached us and called us out of the line. We went towards them not suspecting what they wanted. They then started assaulting us by touching different parts of our bodies forcefully. This happened in public, we started screaming, but no one came to help us.
Addressing some major contentions to the bill and critically analysing them, we have:-
1. The bill violates the NALSA Judgement by not giving reservation to the community
NALSA Judgement stated that the central and state governments were directed to treat the community as socially and economically backward classes and to extend them reservation in educational institutions and for public appointments. However, the critics of the bill argue that it violates the NALSA Judgement as it has not provided the community with reservation of any sorts, with all due respect, dear critics, the bill is named PROTECTION OF RIGHTS not RESERVATION.
2. The process of identification and issue of the certificate as proof of transgender
According to many human rights organisations, the bill violates the NALSA judgment, according to which it guarantees self-identification rights without any need for medical intervention. Well, the bill does not violate the NALSA judgments if anything at all; it strengthens the position of the judgement in a practical sense. In Chapter 2 of the Bill Section 4, sub-part 2 clearly states that a person recognised as a transgender will have the right to self-perceived gender identity. As per the NALSA judgement, it merely stated that it prefers the ‘Psychological test’ as opposed to the ‘Biological Test’.
3. Disproportionate punishment for sexual offences when compared to the cisgender
Major media houses and activists of the community have raised their voices over the duration of punishment that will be awarded to the offenders against transgender persons. According to the act, in Chapter VIII Section 18(d), it states that “harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine”
Yes, the bill does discriminate and awards disproportionate punishments to the offenders, but this is a PROTECTION OF RIGHTS BILL, including punishments for every type of crime regarding this community, will make the bill lose its nature. Furthermore, the bill is intended to start rolling the actions. The author thinks that an elaborate punishment scheme is better suited in the IPC and CrPC where a straightforward amendment of the inclusion of third genders can be done beside the cisgenders to every other punishment that the cisgenders have.
The author is of the view that the punishment as stated in the Act is just for probationary purposes and for a limited time being, it is just the foundation, the laying stone of more elaborate and comprehensive fines and penalties schemes, the punishment is intended to make the general public aware of the crime and the punishment related to it.
Every year, across the world, transgender persons are murdered merely because of who they are. Many face sexual and physical violence, which often goes unreported, most often done by their own families/partners; a price that transgender folk pay for accepting and asserting their identity - for existing. It aches to witness the inhumane abuse of the transgender, their exclusion from society deciphering our narrow-minded thought-process. This is the price they pay for simply existing. In India, more often than not, we come across the term, “human rights”, but it is excruciatingly painful to witness the maltreatment of the transgenders in every possible manner as if they are not human beings. Does their exclusion from society not decipher our narrow-minded and inhumane nature? It is high time we construct an equal, gender-inclusive society. Simultaneously, the policymakers must align Transgenders Protection Bill with demands of the transgender community to facilitate their social, political and economic growth. It is also equally important that effective implementation of the Act is there and attitudinal change is brought to squarely avert any discrimination and also increase opportunity for all people irrespective of their gender and sex.
A holistic consideration along with comprehensive incorporation of the avowed and necessary rights is essential, encouraging radical changes in societal structure and institutions, professing acceptance and tolerance, where everyone can enforce their rights by way of a uniform mechanism. Juno Dawson, a celebrated writer, LGBTQ activist and a transgender woman said, “Remember this, whoever you are, however, you are, you are, you are, equally valid, equally justified, and equally beautiful. I dare to dream of a world where people can dress, speak, and behave how they want, free from mockery, derision, judgment, harassment, and dangerous. This is what I want.” This is what we all want; this is what we all need.