Diksha Tarnekar
National Law Institute University, Bhopal
Paridhi Verma
Indore Institute of Law
Introduction:
The Indian Constitution grants a golden thread as an equality scheme i.e., Article 14, 15, 16, 19 and 21 to the citizens for their enjoyment of life and an opportunity to grow as human beings irrespective of their gender, caste, religion, community and race. One of the basic precepts of the equality scheme lies in the recognition and acknowledgement of the ‘right of choice and self-determination’. Determination of the gender of a person belongs and relates is intrinsic to their right of self-determination and their dignity.[i]
Who is a Transgender Person?
The word “transgender” – or “trans” – is an umbrella term for people whose gender identity is different from the sex assigned to them.[ii]
Non-recognition of the Third Gender in the Indian legal framework resulted in the denial of the equal protection of law and discrimination at the socio-economic level. Indian Laws are substantially binary in nature which only recognised two genders i.e., male and female until in a Supreme Court judgement[iii] declared transgender as ‘third gender’ other than the binary gender thus giving them their own identity and recognition in the Indian constitution and for the purposes of laws enacted by the State Legislatures and Parliament. This case leads to the enactment of Transgender Persons (Protection of Rights) Act, 2019.
Constitutional Rights of A Transgender Person:
The preamble to the Constitution mandates Justice: social, economic and political equality of status. Transgender people are liable to the rights guaranteed under Article 14, 15, 21 and 23 of the Indian Constitution. It provides equality to all the citizens and tolerates no discrimination on the grounds of sex, caste, creed or religion. It also grants political rights and other benefits to all the citizens. But, the transgender community continued to be ostracized.
In the Indian State, official identity papers provide civil personhood in which sexual (gender) identity is a crucial and an unavoidable category. Identification on the basis of sex within male and female is a crucial component of civil identity as required by the Indian state. The Indian state’s policy of recognizing only two sexes and refusing to recognize people belong to the transgender community as women, or as a third sex, has deprived them at a stroke of several rights that Indian citizens take for granted.[iv]
National Legal Service Authority v. Union of India:
This is a landmark judgment given by the Supreme Court of India on April 15, 2014, in which two-judge bench was instituted of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri.[v] The question was raised in the court that the person who falls outside the male/female binary can be legally recognized as “third gender” persons.
The Court recognized the gender identity and sexual orientation of being male, female or transgender which is the basic aspects of self-determination and dignity. The Centre directed to the state governments to provide legal recognition and proactive action for transgender in consonance with the Constitution of India.[vi]Moreover, the court also put light on the core international human rights treaties and the Yogyakarta Principle[vii] for securing transgender person’s rights.
Analysis of Transgender Persons (Protection of Rights) Bill, 2019:
Key Provisions Of The Bill
- Definition Of A Transgender Person: The Bill defines a transgender person as an individual whose gender does not match the gender assigned at birth. It includes trans-men, trans-women, persons with intersex variations and persons with socio-cultural identities often know as ‘kinnar’ and ‘hijras’.
- Prohibition Against Discrimination: The Bill prohibits any person compelling a transgender person into bonded labour, denying them their basic rights, causing any sort of physical, mental, economic and sexual abuse, can be penalised with imprisonment of not less than six months which may extend to two years. It prohibits discrimination against a transgender person on grounds including denial, discontinuation or unfair treatment in educational establishments, services, employment, and healthcare.[viii]
- Certificate of Identity: A transgender person may make an application to the District Magistrate requesting issuance of an identity certificate indicating gender as ‘transgender’. A revised certificate can be obtained if the individual goes under surgery for sex change.
- Right Of Residence: The Bill provides the right to residence in the household to a transgender person and if denied, the person can reside in a rehabilitation centre with the permission of the competent court.
- Education & Health Care: Educational institutions and government must provide a transgender person with all the education, sports and recreational activities. The health care facilities shall be provided which includes separate HIV surveillance centres and sex reassignment surgeries.
- Welfare Measures by The Government: It states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. Steps shall be taken for their rescue and rehabilitation, vocational training and self-employment and must create schemes and programmes that are transgender sensitive, and promote their participation in cultural activities.[ix]
Condemnation of the Act:
The sole purpose of legislation should be to protect the rights of the vulnerable. However, discourse by the marginalized is not allowed because of a further threat to their lives and systemic obstructions in place which also disallow the members from the participation in the community. There are certain series of retraction and claims that were made with the 2016 bills followed by the 2018 but they were purely a death knell on the culmination of all positive hopes which would even snatch the bare minimum existence of the community.
In context to this, India’s transgender community started protesting against the bill and added red tape to that legislation. Following are the reasons behind the deterioration of the rights of the transgender community provided in the Act:
- Categorization of Discrimination: The Bill provides imposition on discriminations against nine types of discriminatory acts. Howsoever, division of such categorization as discrimination is a multi-dimensional concept. Therefore, this not just and a travesty of justice.
- Problem Against the Spirit of Self Perceived Identity: District Magistrate has been dismantled then as to what grounds that would allow transgender persons to be recognised with regard to their identity[x] as a transgender person.
- Lack of Review Mechanism: There is no provision in the Bill which provides review or appeal to higher authority if a transgender is denied for issuance of identity certificate to the transgender.
- No Reservation Policy: This is the foremost lacuna of the bill. There is no provision which is addressing any provision regarding class reservation to backward transgender in education and public employment.
- Criminalizes Begging and Sex-Work: The bill criminalizes begging and sex-work,[xi] as new section is inserted that criminalizes ‘compelling or enticing’ a transgender person to indulge in forced labour. The need for the section should be under scrutiny when there is already pre-existing Bonded Labour System (Abolition) Act which criminalises bonded labour employment which is applied across persons with no discrimination on gender, the need for this provision is of no sense.
- No Provision of Chief Medical Officer: The act is not emphasizing on the importance of the role of Chief Medical Officer to ensure that there is no misuse of the certification provided.
- No Regional and Local Forums: The act provides the establishment of commission at the national level but there is a need for forums, boards and commission along with the helpline number at regional and local levels also.
- Sex-Selective Reassignment Surgeries: Protest is being led by the community of transgender and criticizing the provision as this is defying the order of nature. Moreover, clearly encouraging people for forceful or non-consensual sex reassignment surgeries.
- Light Punishment: The punishment for offences such as rape and other sexual abuse offences for transgender enumerated in the act is of maximum 2 years[xii] which is a clear violation of rule of law and Criminal Law (Amendment) Bill, 2012 which was provided for gender-neutral sexual offences.
Conclusion:
The Act is supposed to be the concluding remark of the judgement of Supreme Court in the NALSA case obliging the central and state governments to ensure that the transgender people get the legal recognition. They are also mandated to create effective steps for their welfare. But, the act left more issues unanswered. The Transgender Persons (Protection of Rights) Act, 2019 does not address community rights. The judgement specifically states that self-determination is an intrinsic part of the personal freedom which is granted under the Constitution of India. Therefore, to fill the loopholes, a select committee should be established to revise and suggest the necessary amendments in the Act. The present act may not be much beneficial to the ‘third gender’. Recently, the Uttar Pradesh government amended a law[xiii] to provide inherit ancestral agricultural land to transgender people. This will not only protect the third genders from the social ostracism but also give them equal rights as enshrined in the Constitution of India. Supreme Court judgement may have given the recognition to transgender as other citizens but a lot has to be done in order to change the attitude of society towards them.
REFERENCES:
[i] Alok Tewari, Shivika Upadhyay and Vishal Singh, Kocchar and Co., https://www.lexology.com/library/detail.aspx?g=b49d9488-c484-4d00-882c-2c386a041a07.
[ii] Understanding the Transgender Community, https://www.hrc.org/resources/understanding-the-transgender-community.
[iii] NALSA v. Union of India (AIR 2014 SC 1863).
[iv] Transgenders Rights in India, https://iasscore.in/national-issues/transgender-rights-in-india.
[v] AIR 2014 SC 1863.
[vi] Article 14, 15, 16, 19 and Article 21 of the Constitution of India, 1950.
[vii] International Commission of Jurists (ICJ), Yogyakarta Principle: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, http://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf.
[viii] Transgender Persons Bill, 2019, https://www.drishtiias.com/daily-updates/daily-news-editorials/transgender-persons-bill-2019.
[ix] Critical Analysis of the Transgender Persons Bill, 2019, https://www.jatinverma.org/a-critical-analysis-of-the-transgender-persons-bill.
[x] Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019.
[xi] Section 19 of the Transgender Persons (Protection of Rights) Act, 2019.
[xii] Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.
[xiii] Uttar Pradesh Revenue Code (Amendment) Act, 2020.
