By Ranu Tiwari
[Ranu Tiwari is a third year student of B.A. LL.B. (Hons.) at National Law University, Nagpur.]
The transgender community is one of the most marginalized sections of the society in India. It is such a sorry state of affairs that a study enumerating their woes was brought only in the year 2018 by the National Human Rights Commission. As per the study, about ninety-two percent of transgender persons are deprived of the right to participate in any form of economic activity in the country. [i] Around ninety-nine percent have suffered social rejection on more than one occasion, including from their family while ninety-six percent of transgender persons are denied jobs and forced to take low paying or undignified work for their livelihood like badhais (conferring blessings on auspicious occasions), sex work and begging. [ii] Around sixty percent of transgender persons have never attended schools. Also, fifty-seven percent of the respondents in the study state that they were keen on getting sex reassignment surgery but their financial incapacity was a hindrance. [iii]
In 2014, the Apex Court in NALSA v. Union of India (“NALSA judgment”), recognized transgender persons as the ‘third gender’, affirmed that they will be given the same fundamental rights enshrined under the Constitution of India as anyone else and also gave them the right to decide their gender identity. [iv] The Court also instructed the government to formulate policies and laws to implement this decision.
It is in this context that the Transgender Persons (Protection of Rights) Act [v] (“Act”) was brought in December 2019.
The Transgender Persons (Protection of Rights) Act, 2019:
The Act defines transgender persons and provides them rights against discrimination in employment, education, healthcare, etc. It also confers them with the right to residence and casts a duty upon the government to take measures for their inclusion and encourage participation of the community in the society. It recognizes offences against transgender persons and provides penalties thereof. It provides for formation of a National Council for Transgender Persons (NCT) which will help in formulation of policies concerning transgender persons.
Even though this law is set to govern the rights of the transgender community, there was widespread opposition to it. It will be worthwhile to understand the contentious issues and implications of the Act.
Issues Arising from the Act:
The very first issue arises in the title of the Act. The definition of ‘transgender’ is provided under Section 2(k) of the Act as a person whose gender identity does not match with their birth-assigned gender identity and includes intersex persons, genderqueer persons, transgender persons, hijras and others. [vi] This homogenizes many diverse identities by including them all under the term ‘transgender’. According to the Office of the United Nations High Commissioner for Human Rights, intersex people have bodies that ‘do not fit the typical definitions for male or female bodies’. [vii] By inclusion of the term intersex in transgender, the Act fails to recognize the distinct set of needs and protections required for intersex and transgender persons. The Parliament should have considered changing the title of the Act to Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Act, 2019. [viii]
Although there is a prohibition of discrimination against transgender persons, [ix] the chapter on the same suffers from serious lacunae. The punishment to be meted out to violators, ways to enforce these rights, the enforcing body for the compliance of these rights, etc. do not find a place in the scheme.
Sections 5 and 6 of the Act [x] deal with the requirement of certificate of identity as a proof of identity of a transgender person. A transgender person is required to obtain a ‘Certificate of Identity’ from the District Magistrate. This is a serious flaw and is in direct contravention of the NALSA judgment. The judgment specifically states that self-determination of gender is an integral part of personal autonomy and falls within the realm of personal liberty guaranteed under the Constitution of India. [xi] The Act does state that a transgender person will have a right to self-perceived gender identity but this seems to be contradictory to the rest of the Act and the scope of this right is severely limited. [xii] Under Section 7 of the Act, after being duly granted certificate under Section 6, a trans person wishing to change their gender, would be required to make an application for a revised certificate only after undergoing sex reassignment surgery. [xiii] This takes away the right of self-declaration of gender identity.
Post sex reassignment surgery, a transgender person will be entitled to only change their first name in all the documents, [xiv] giving rise to the belief that the last name holds a sacrosanct position in the Indian cultural milieu, placing undue emphasis on caste of a person. If this is what it entails, then the clause is quite problematic.
Moreover, the confidentiality aspect of the sensitive data regarding certification does not find express mention in the Act. However, this may be addressed by India’s proposed data protection regime (namely the Personal Data Protection Bill, 2019) which classifies transgender and intersex status as ‘sensitive personal data’. [xv]
The Act attempts to eliminate the unique kinship and bonds that operate within the transgender community, by defining a family as ‘a group of people related by blood or marriage or by adoption made in accordance with law’. ‘For most people belonging to this community, the first site of discrimination, ostracism and violence is this idea of family itself,’ [xvi] and children with gender dysphoria are not easily accepted in families in India. Right of residence, as provided in Section 12 of the Act, [xvii] compels a transgender person under the age of eighteen years to cohabit with their natal family, and the only way to separate from them is by an order of a competent court. Therefore, through this provision, minors face the risk of more discrimination and violence at the hands of their families. The right to move out and sever their familial ties is restricted through this clause.
The section further stipulates that if the family or any member thereof is unable to take care of a transgender person, the latter will be placed under the care of a rehabilitation center by the Court. Further light needs to be shed on how this would work, otherwise these centers might become another source of abuse and discrimination for transgender persons.
Some experts have questioned the part on access to healthcare for transgender persons wherein the government is directed to ‘set up separate human immunodeficiency virus sero-surveillance centres to conduct sero-surveillance for such persons.’ [xviii] ‘Any targeted intervention for a stigmatizing illness is archaic, traumatizes the individual and their family, and shows the poor understanding of those who drafted the Act.’ [xix]
The proposed National Council for Transgender Persons does not give adequate representation (it has only 5 seats designated for transgender persons) to the members of the very community it wishes to represent. [xx] Moreover, as the Central Government is tasked with the responsibility of nominating members to the Council, this may lead to the government exercising great control over it.
The Act proposes lesser punishment for crimes against transgender persons than what has been prescribed under the Indian Penal Code, 1860 and other acts such as the Bonded Labour (Abolition) Act, 1976. For example, a man convicted of committing rape against a woman is punished with imprisonment extending from seven years to life, [xxi] but sexual assault against transgender people merits a less severe punishment of up to two years and a fine. [xxii]
In addition to these issues, the Act does not provide for any reservation scheme for the transgender community, contrary to the spirit of the NALSA judgement wherein this facet of affirmative action policies was highlighted. It is also silent on trans persons’ rights to marriage, adoption and inheritance.
The discussion on gender and sex has evolved over the past decades, but this law points to the rudimentary understanding of our lawmakers on the concerned subject matter. India needed a comprehensive piece of legislation that elaborated upon anti-discrimination, equality, and rights concerning transgender people. This Act fails to achieve the objectives it was supposed to fulfill. In December 2019, a petition was filed challenging the constitutional validity of the Act, stating the violations of Articles 14, 15, 16, 19 and 21 of the Constitution of India. [xxiii] The case is pending in the Supreme Court. However, while the Supreme Court is yet to decide on the constitutionality of the Act and the world grapples with a pandemic, the government has displayed its apathy by releasing the Draft Transgender Persons (Protection of Rights) Rules, 2020. [xxiv] These Rules were released on April 18, 2020 and April 30, 2020 was set as the deadline for submission of comments, going against government’s pre-legislative consultation policy. [xxv] Rise in public opposition led the government to extend the deadline to May 18, 2020. [xxvi] The Draft Rules replicate the flaws in the Act. One example is the ‘certificate of identity’ requirements and procedures, whereby a report from a psychologist would be needed (Rule 4(1) of the Draft Rules), [xxvii] violating the conception of self-identification of gender identity. Now, the only beacon of hope remains the Supreme Court. Perhaps, the judiciary will prove to be the guardian of the fundamental rights of the transgender community and undo the injustices set out in the Act.
[i] Kerala Development Society, “Study on Human Rights of Transgender as a Third Gender” (National Human Rights Commission, 2018), available at: https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf (last visited on June 14, 2020).
[iv] (2014) 5 SCC 438.
[v] The Transgender Persons (Protection of Rights) Act, 2019 (Act 40 of 2019).
[vi] Id., s. 2(k).
[vii] United Nations Free and Equal, available at: https://www.unfe.org/wp-content/uploads/2017/05/UNFE-Intersex.pdf (last visited on June 14, 2020).
[viii] “Setting the clock back on intersex human rights” The Hindu, December 04, 2019, available at: https://www.thehindu.com/opinion/op-ed/setting-the-clock-back-on-intersex-human-rights/article30152281.ece (last visited on June 14, 2020).
[ix] Supra note [v], s. 3.
[x] Supra note [v], ss. 5,6.
[xi] Aman Gera, “Analysis – Transgender Persons (Protection Of The Rights) Bill, 2019” Mondaq, October 07, 2019, available at: http://www.mondaq.com/india/x/851520/employee+rights+labour+relations/Analysis+Transgender+Persons+Protection+Of+The+Rights+Bill+2019 (last visited on June 14, 2020).
[xii] Supra note [v], s. 4(2).
[xiii] Supra note [v], s. 7.
[xiv] Supra note [v], s. 7(3).
[xvi] Priyanka Borpujari, “India’s Trans Community Faces Continued Discrimination” The Diplomat, January 24, 2019, available at: https://thediplomat.com/2019/01/indias-trans-community-faces-continued-discrimination/ (last visited on June 14, 2020).
[xvii] Supra note [v], s.12.
[xviii] Supra note [v], s. 15(a).
[xix] Dr. Sylvia Karpagam, “Why Transgender Persons Bill 2018 is a healthcare nightmare for the community” The NEWS Minute, December 30, 2018, available at: https://www.thenewsminute.com/article/why-transgender-persons-bill-2018-public-health-nightmare-community-94206 (last visited on June 14, 2020).
[xx] Supra note [v], s. 16(2).
[xxi] Indian Penal Code, 1860 (Act 45 of 1860), s. 376.
[xxii] Supra note [v], s. 18(d).
[xxiii] Swati Bidhan Baruah v. Union of India, available at: https://www.livelaw.in/pdf_upload/pdf_upload-369551.pdf (last visited on June 26, 2020).
[xxiv] Draft The Transgender Persons (Protection of Rights) Rules, 2020, Ministry of Social Justice and Empowerment, available at: http://socialjustice.gov.in/writereaddata/UploadFile/draftrule1604.pdf (last visited on June 26, 2020).
[xxv] Prashant Singh and Gopi Shankar, “Modi govt releasing draft rules on Transgender Persons Act in lockdown a blow to community” The Print, May 5, 2020, available at: https://theprint.in/opinion/modi-govt-releasing-draft-rules-transgender-persons-act-lockdown-a-blow/414331/ (last visited on June 26, 2020).
[xxvii] Supra note [xxiv].