Priyanshi Srivastava
SVKM’s NMIMS School of Law, Mumbai
Introduction:
Since years unknown, the transgender community in India has not only been discriminated but has also been deprived of certain basic rights. However, in 2014 the Supreme Court of India passed a landmark judgment recognising the community’s right, giving them the status of ‘third gender’ in our country through the NALSA judgement. The judgement directed both the state and central governments to frame schemes for the welfare of the transgender community. This judgement acted as a ‘light in the darkness’ for the LGBT community. Such legal recognition was considered an advent for the third gender.
Some of the Significant Features of the NALSA Judgement are:
Previously, the transgender community was required to categorize themselves as either male or female. That is why it was important to recognise a ‘third gender’ status for them, which will also play a key role in establishing a society inclusive of all genders. The central government was directed by the Supreme Court to recognise the transgenders as socially and economically backwards.
The Supreme Court directed both central and state governments to form new social welfare schemes to improve the transgender community’s economic status and to raise awareness among the common masses to eradicate stigma in terms of culture, belief, religion, and gender. The court said that the lack of laws that recognise members of the transgender community as third gender cannot prevent them from getting work and education. Equal opportunities in the provision of education and employment must be provided.
Yet, the laws that consequently took shape have been revealed to be inadequate in granting protection and security of law to the third gender.
An Understanding of the Timeline:
- In 2014, Tiruchi Siva, the Dravida Munnetra Kozhagam (DMK) leader, introduced the Rights of Transgender Persons Bill 2014, in the Rajya Sabha. It was passed by the Rajya Sabha in April 2015. However, the bill did not pass in the Lok Sabha.
- In 2016, the government approved The Transgender Persons (Protection of Rights) Bill, 2016. But the witnessed saw protests from trans communities across India for the reason that the suggestions made by the community were not taken into account in the final bill. The community felt it was misinterpreted. The definition of a transgender person was, “partly female or male; or a combination of female and male, or neither female nor male”. This definition only looks at the third gender community through a binary lens. Although the whole community represents much more than that.
- In relation to the rights of Transgender Persons Bill, 2014 and The Transgender Persons (Protection of Rights) Bill, 2016 it was felt that the 2014 bill was more progressive as well as comprehensive. The bill constituted of important aspects such as child and adult transgender education. Apart from this, the bill also had certain provisions that pushed out hate speech against the community. Activists supported the 2014 bill over the current legislation as the bill was in tune with the NALSA judgment.
- In 2019 an amended version of 2016’s bill was introduced: The Transgender Persons (Protection of Rights) Bill, 2019. The bill amended the issue which had arisen in the 2016 bill and changed the definition of the third gender. It defines the transpersons as “one whose gender does not match with the gender assigned at birth. It includes transmen, transwomen, persons with intersex variation, genderqueers as well as persons with socio-cultural identities, such as kinnarand hijras”.
The bill assured the community that they would be provided with employment, health care, education and other necessary facilities without discrimination. But on the contrary the bill still did not exclude the certificate of identity.
The Transgender Persons (Protection of Rights) Act, 2019:
The Transgender Persons (Protection of Rights) Bill, 2019 was passed in the Rajya Sabha on 26th November 2019. On 5th August 2019, the bill was passed in the Lok Sabha and later on 5th December 2019, the bill received assent from President Ram Nath Kovind.
The Transgender Persons (Protection of Rights) Act 2019 focused on providing a framework to empower and benefit the transgender community.
The major highlights of the act were:
- Definition for “transgender person” in the act means “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, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.“
- Prohibition against Discrimination: No person or establishment shall discriminate against a transgender person on any of the following grounds, namely—Education, employment and occupation, medical healthcare, right to purchase, reside or rent any property, right to movement, opportunity to work in any public or private office, etc.
- National Council for Transgender Persons
Criticism against the Act:
The Transgender Persons (Protection of Rights) Act, 2019 was criticised by the whole transgender community. The act consists of serious flaws some of which are listed below:
- Most of the rights given to the transgender persons under this act were already guaranteed to them under Article 14 of the constitution.
- Violation of Privacy and Dignity:
The NALSA judgement held that Transgender people have a right to self-identification pursuant to which the category of “third gender” was formally introduced. At present, if a person wishes to be identified as a transgender, he or she must undergo a medical examination. They must also obtain a certificate of transgender status from the District Magistrate. Not only is this approach regressive and biased, but it strips someone of their dignity which Article 21 guarantees for all. In a country like India, certain social stigmas and taboos are tagged with being transgenders. Hence, many people prefer not to make their identity public. The right to privacy is our fundamental right which is violated by this act.
3.The act does not differentiate between trans-persons and intersex persons.
4.The act does not include any penalty against such person who discriminates against a transgender person.
5.Tenure of punishment:
The maximum punishment for a person who sexually abuses, assaults or harasses a transgender person is just two years which is too less when we compare it with the punishment prescribed for the same offence when committed against a male or a female.
6. The judgement directed the government to make specific schemes and provisions for transgender person’s education. However, the act does not include any such clause.
7.Post the process of identification, the District Magistrate can deny the certificate without mentioning any reason. A clear violation of principles of natural justice.
8. There is no provision for allowing the adoption by transgender persons. Some people in the community may not have the opportunity to procreate biologically. Not allowing them adoption deprives them of having children.
Conclusion:
The act should be on similar lines as the NALSA judgement. The need for experts in the drafting of such legislation should be the top most priority. We need to involve people from the community in the process of effective legislation. The transgender community should have an unfettered right to self-identification which will ultimately result in more awareness of the rights of the transgender community in India which will help to create an inclusive atmosphere.
