lgbt, lesbian, gay

An Analysis of the Transgender Persons (Protection of Rights) Act, 2019

Introduction

People who do not feel that the gender assigned to them at birth matches their gender identity refer to themselves as transgender.[1] Various terms are used to describe a transgender person, such as trans or trans male or trans female. Transgender people use various methods to express their gender identities, such as dressing or behaviour or manners. Some people use hormones or undergo surgery to change their gender to better align with their gender identity. Trans people discard the idea that gender is binary – male or female. They may describe themselves as genderqueer, genderfluid, or any other term they may prefer.

In the Indian context, transgender people are regarded as individuals with mystic powers to bless and curse.[2] They hold a special position in Hinduism but a disheartening position in Hindu society. When Lord Rama went into exile for 14 years in the Ramayana, he asked the “men and women” of Ayodhya, who had followed him to the forest, to return to the kingdom. The “Hijras,” who were neither men nor women, stayed in the forest until the exile ended.[3] This earned Hijras blessings from Lord Rama.

Transgenders were kept as watchdogs of the harems of the Mughal emperors. Hence, they enjoyed privileges during the Mughal period.[4] The fall of transgender people started in the 18th century during the British Raj.[5] The earlier European travellers were disgusted at the sight of hijras and couldn’t understand the reason behind the royal respect they enjoyed at the courts of Kings. Under British colonial rule, several criminal legislations, including the infamous Section 377 IPC, were also enacted. The Hijra community had no civil rights. The colonial administration considered them a separate tribe or caste.[6]

History of the Act

As per the 2011 population census, 4.8 million people identified as transgender[7] with the highest percentage in the states of Uttar Pradesh, Andhra Pradesh and Bihar.[8] In 2014, the SC passed a landmark judgement, which recognised transgenders as the “third gender.”[9] The Court also upheld the right to identify one’s gender.[10] Further, the directions given by the Court in this judgement provided a blueprint for the law.

Thereafter, Rajya Sabha MP from DMK, Tiruchi Siva made the first attempt towards the adoption of a law. He introduced a private member bill namely the “Rights of Transgender Persons Bill” in the Rajya Sabha in 2014.[11] The Rajya Sabha supported and unanimously passed the bill. However, the Lok Sabha never discussed or debated it. The bill, therefore, never took the shape of the law.

The bill had many progressive clauses, including remedies against sexual discrimination, harassment, and violence. The bill contained provisions for setting up a transgender commission at the central and state levels.[12] But the bill also had many crucial defects. After some amendments, the Lok Sabha discussed it again in 2016. However, these changes were inadequate, and the transgender community heavily opposed the bill. It defined a transgender person as neither a man nor a woman, nor both a man and a woman, hence reinstating the social stigma attached to the community. Under the bill, an individual would have to submit to medical screening before a District Screening Committee comprising a Chief Medical Officer, a psychiatrist, and a member of the transgender community to be recognised. This is contrary to the SC’s decision. The 2014 bill espoused employment opportunities for transgender people as the primary goal. This was lost or diluted in the 2016 bill. The grievance redressal mechanism proposed in the 2014 bill was severely compromised and internalised. Instead of the courts for transgender rights proposed in the 2014 bill, the 2016 bill sought to allow every establishment comprising 100 or more people to appoint a complaint officer to look into any violations under this act.

Another bill was introduced on 19 July 2019 by Mr Thaawarchand Gehlot, Minister for Social Justice and Employment.[13] This bill took the shape of the current law- The Transgender Persons (Protection of Rights) Act, 2019 on November 26, 2019.[14]

Salient Features of the Act

  1. The definition of transgender is not stigmatizing, as proposed under the 2016 bill. Under Sec. 2 of the Act, a transgender person 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), a person with intersex variations, a genderqueer person, and a person having such socio-cultural identities as kinner, hijra, aravani, and jogta.”[15]
  2. Under Sec. 4, a transgender person has a right to identify one’s gender[16] and such a person can, through an application to a District Magistrate, seek the issuance of an identity certificate.[17] The Act also prohibits all forms of discrimination against transgender persons in matters of education, healthcare, employment, etc.[18]
  3. The Act also seeks to safeguard the interests of children under Sec. 12 by prohibiting the separation of a child from their immediate family except on orders by a competent court. Where an immediate family cannot take care of such a child, “they” shall be placed in a rehabilitation centre.[19]
  4. The Act also imposes obligations on the “appropriate government”[20] to plan welfare schemes for transgender people and ensure their welfare, protect their interests, rehabilitate them and promote their rights.[21] The appropriate government “shall facilitate and support livelihoods for transgender persons, including their vocational training and self-employment.”[22] It is obligatory upon the appropriate government to yield adequate healthcare facilities to transgender people, such as centres for HIV surveillance and sex reassignment surgeries.[23] Further, the Central government has to set up a National Council for transgender persons under this Act.[24]
  5. A similar obligation is imposed on private institutions.[25] “Every establishment shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.”[26]
  6. The Act penalises offences such as forced or bonded labour, obstruction of the path, forcing a transgender person to leave their place of residence, physical and sexual violence, etc.[27]

While the Act has many merits, it cannot answer many problems faced by the transgender community.

Drawbacks of the Act

The biggest flaw in this Act is the two-step process prescribed for the recognition of gender. First, a transgender person can apply for a “transgender identity certificate” before a District Magistrate.[28] Second, a person may seek to alter and confirm their legal gender through a “change in gender certificate.” However, to get such a certificate, a person must bear a “proof of sex reassignment surgery,” which should be submitted to the District Magistrate.[29] The District Magistrate should be satisfied with the correctness of its contents before handing “change in gender” certificate.[30]

The Act, therefore, gives unlimited power to the hands of one government official.[31] It also subjects a person to compulsory medical surgery, which is against the right to self-identification laid down in the 2014 judgement. Further, it also violates the right to privacy enshrined under Art. 21 of the Indian Constitution. Besides, the process does not align with international best practices, which advocate the separation of legal and medical procedures.[32]

There is no provision for reservation under the Act, while the 2014 bill offered a 2% reservation.[33] The Madras High Court also directed the state to plan a scheme providing reservations to transgender persons[34] but it hasn’t been complied with. Despite the 2018 judgement decriminalising all forms of consensual sexual acts between adults, including homosexuals,[35] the Act does not give legal recognition to same-sex marriage. Furthermore, the punishment for sexual offences against transgender persons is not adequate. The minimum punishment provided under the Act is merely six months, which can be extended up to two years with a fine.[36] The IPC provides graver punishment for the same action when committed against a woman. The provision, therefore, is itself discriminatory. It is pertinent to mention here that in 2020, Adv. Reepak Kansal filed a PIL seeking equal protection for transgender persons against sexual offences.[37] The petition also challenged the validity of Sec. 354-A concerning its scope and extent.

Conclusion

At this juncture, it is crucial to mention the observations of the Hon’ble Delhi HC- “a transgender [person’s] sense or experience of gender is integral to their core personality and sense of being… everyone has a fundamental right to be recognised in their chosen gender.”[38]

India is a democracy. It’s disheartening that it took us so many years to recognise the rights of transgender persons. The inadequacies in the legislation only make the situation miserable. There is an urgent need to redesign and revamp the entire legislation, as it suffers from many infirmities. It does not conform to international standards either. India is way behind the U.S.A. and other western countries. It must be noted that proper legislation is just the first step towards ensuring equal rights for the transgender community. The bigger hassle is their acceptance by society. Several NGOs and activists are working in this regard.


[1] Transgender Identities < https://www.plannedparenthood.org/learn/gender-identity/transgender > (assessed on Jun. 17, 2022).

[2] Jeffery Gettleman, The Peculiar Position of India’s Third Gender, New York Times (Jun. 17, 2022, 05:27 PM) < https://www.nytimes.com/2018/02/17/style/india-third-gender-hijras-transgender.html >

[3] IILS, < https://www.iilsindia.com/blogs/brief-history-transgenders-india/ > (assessed on Jun. 17, 2022).

[4] Amaral Singh, Critical Analysis of Transgender Persons (Protection of Rights) Acts, 2019, Pro Bono India (Jun. 17, 2022, 05: 27 PM) < https://www.probono-india.in/research-paper-detail.php?id=660 >

[5] ibid.

[6] M. Michelraj, Historical Evolution of Transgender Community in India, 4(1) ARSS 17, 18 (2015) < https://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf >

[7] Anuj Behal, Non-binary genders need more visibility in India’s Census 2021, Down To Earth (Jun. 17, 2022, 08: 00 PM) < https://www.downtoearth.org.in/blog/governance/non-binary-genders-need-more-visibility-in-india-s-census-2021-78844# >

[8] Nethu Naik, Transgenderism in India: Insights from Current Census, PAA, (Jun. 17, 2022, 08: 00 PM) < http://paa2019.populationassociation.org/uploads/191100# >

[9] NALSA v. Union of India, AIR (2018) SC 4321.

[10] ibid.

[11] Rohan Abraham, All You Need to Know About the Transgender Bill, 2016, The Hindu (Jun. 17, 2022, 09: 20 PM) < https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-2016/article61850371.ece >

[12] ibid.

[13] PRS India < https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019 > (assessed on 17 Jun. 2022).

[14] Ibid.

[15] § 2, The Transgender Persons (Protection of Rights) Act, 2019.

[16] § 4, The Transgender Persons (Protection of Rights) Act, 2019.

[17] § 5, The Transgender Persons (Protection of Rights) Act, 2019.

[18] § 3, The Transgender Persons (Protection of Rights) Act, 2019.

[19] § 12, The Transgender Persons (Protection of Rights) Act, 2019.

[20] Supra Note 15.

[21] § 8, The Transgender Persons (Protection of Rights) Act, 2019.

[22] § 14, The Transgender Persons (Protection of Rights) Act, 2019.

[23] § 15, The Transgender Persons (Protection of Rights) Act, 2019.

[24] § 16, The Transgender Persons (Protection of Rights) Act, 2019.

[25] § 9, The Transgender Persons (Protection of Rights) Act, 2019.

[26] § 11, The Transgender Persons (Protection of Rights) Act, 2019.

[27] § 18, The Transgender Persons (Protection of Rights) Act, 2019

[28] Supra Note 17.

[29] § 7, The Transgender Persons (Protection of Rights) Act, 2019.

[30] Ibid.

[31] Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating, HRW (Jun. 18, 2022, 08: 00 PM) < https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating >

[32] Supra Note 31.

[33] Supra Note 4.

[34] Swapna & Ors. v. Chief Secretary & Ors., Writ petition no. 31091 of 2013.

[35] Navtej Singh Johar v. Union of India, AIR 2014 SC 1863.

[36] Supra Note 18.

[37] Charvi Devprakash, Legal Safeguards for Transgender Persons from Sexual Offences: The Need of the Hour, SCC OnLine Blog (Jun. 18, 2022, 08: 30 PM) < https://www.scconline.com/blog/post/2021/10/01/legal-safeguards-for-transgenders-from-sexual-offences/ >

[38] Shivani ‘Shivy’ Bhat v. State of NCT of Delhi, 223 (2015) DLT 391.