The author in this post has critically analysed the Transgender Act passed in 2019. She has also discussed the loopholes in the Act which has failed to address the important and fundamental rights of the transgenders.
The Transgender Persons (Protection of Rights) Act, 2019[i] (hereinafter, “the Act”) came into effect on 5th December 2019 amidst mass opposition by the public. The Act is the latest attempt of the Parliament to safeguard the rights of India’s transgender community, as was directed by the Supreme Court in the case of National Legal Services Authority v. Union of India and Others[ii] (hereinafter, “NALSA”). This article analyses the loopholes present in the provisions of the Act against the backdrop of the NALSA judgment. It aims to show that these provisions fail the test of constitutionality, thus defeating the main purpose of the Act.
Since time immemorial, gender constructs have been an indispensable part of human society. Contrary to common misperceptions, the concept of gender is concerned more with social and cultural distinctions, rather than biological ones. Gender identity is the personal sense of one's gender. It can correlate with a person's assigned sex at birth or can differ from it. ‘Transgender’ is a term that defines the state of a person’s gender identity that does not match their assigned sex at birth.[iii]
Historically speaking, transgender people in India have had their fair share of ups and downs. They have been recognized as the third type of sex by various religions since the ancient period. The foundational work of Hindu law, the Manu Smriti, also mentions them.[iv] Typically known as ‘hijras’ in India, transgender people occupied respectable positions in courts during the Mughal era.[v] The criminalization of the community began during the British period, which increased their vulnerability and marginalization.[vi]
Post- Independence Status
In the post-independence period, awareness regarding transgender rights has increased tremendously, especially with the wave of the LGBTQ+ movement.[vii] In 2014, the Supreme Court of India pronounced the landmark NALSA judgment. While recognizing the social exclusion faced by the transgender community, the apex Court upheld their right to self-identify their gender. This Court directed the Central and State governments to frame welfare measures for the community, in keeping with articles 14,[viii] 15,[ix] 19[x] and 21[xi] of the Constitution of India.
A Brief History of Past Bills
Following this landmark judgment, the first Bill[xii] on transgender rights was introduced by the Dravida Munnetra Kazhagam’s Tiruchi Siva in the Rajya Sabha in 2014.[xiii] The Bill was drafted in conformity with NALSA but was never taken up for discussion. When the next transgender Bill was introduced by the government in The Lok Sabha,[xiv] it was opposed on many counts, including the way it defined transgender persons as“neither wholly female nor wholly male.” The Bill was sent to a parliamentary standing committee, but the Government rejected the report that was produced before it in July 2019.
Defects in The Transgender Persons (Protection of Rights) Act, 2019
Prima facie, the Act is one that intends to protect the rights and dignity of the transgender community; yet, it is being heavily criticized for its fundamental failure to consider existing ground realities.
First, the Act conflates transgender people with persons with intersex variations,[xv] proving that the Act was not properly deliberated upon as there is a vast difference between the two. Transgender people are usually those who are born with typical male or female anatomies, but their internal sense of gender-identity varies.[xvi] On the other hand, intersex people are born with anatomies that are not entirely male or female.[xvii] The two groups have certain similarities; however, they cannot be read synonymously. Understanding the distinction becomes important because both these groups face different forms of discrimination and their problems require different kinds of solutions.
Second, the Act prohibits discrimination,[xviii] but does not specify measures to apprehend those who discriminate against transgender people at the workplace, educational institutions, or anywhere else. The victim is also not entitled to any monetary compensation. Thus, the right against discrimination remains only on paper.
Third, one of the provisions included under the Act has been the official recognition of transgender persons as such by the Government.[xix] A person may obtain a Certificate from the District Magistrate, according to the recognition of identity as a transgender person.[xx] However, this process of applying for a Certificate and following a certain procedure is contrary to the spirit of privacy, self-identity, and personal integrity of transgender persons, which were guaranteed as fundamental rights by the Supreme Court in NALSA. 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. Moreover, gender and sexual orientation are concepts that lie within the ambit of privacy.[xxi] Internationally, the same has been upheld by courts like the European Court of Human Rights in the case of S and Marper v. the United Kingdom.[xxii] In light of the same, obtaining a Certificate of proof can be seen as a clear violation of the right to privacy of transgender persons, and it also undermines their right to self-determination of gender identity.
Fourth, the Act mentions the welfare measures that the Government shall take in favor of the transgender community, but no details of the same are provided.[xxiii] One such welfare measure can be providing reservations for the community, as supported in NALSA. However, this clause is an absentee one. Given the fact that the transgender community is one which faces discrimination- socially and economically- on an everyday basis, the failure of the Act to provide reservations which can make their lives easier is disappointing.
Fifth, the Act mentions the ‘right of residence’ for transgender people,[xxiv] and also gives competent courts the right to transfer these people to rehabilitation centers in the event that their immediate family is unable to take care of them.[xxv] While this is a noble thought which aims to minimize the discrimination transgender people face in their own families, it lacks the actual solution to this problem. One is aware of the pressure families put on transgender persons to conform to their original sex.[xxvi] Refusal to do the same is met with being outcast or in extreme cases, may even lead to violence. In such a scenario, segregation and relocation to rehabilitation centers hardly solve the issue if this stigma is not addressed and punished adequately by the Act.
Sixth, the Act requires the Government to provide medical care and health facilities to the transgender community.[xxvii] However, the Act does not indicate any timeline for taking such measures, even though the NALSA judgment specifically directed the Government to do the same six years ago. The transgender community alleges that the Act only superficially touches upon the concept of affirmative actions and provides no real mechanism to improve the lives of transgender persons.[xxviii]
Seventh, Chapter VIII of the Act specifies offences and penalties against transgender people. However, it fails to define clearly as to what constitutes sexual abuse, and even the punishment prescribed for it is highly dissatisfactory- maximum imprisonment of two years with fine. This is in clear contrast to the punishment meted out to an accused who is convicted of sexual abuse against a cisgender woman- a minimum sentence of seven years, which may extend to a life sentence.[xxix] Such inconsistencies make us question as to how important is the safety of the transgender people in the eyes of the law.
Eighth, the Act fails to mention basic rights like those relating to marriage, inheritance, and adoption for the transgender community. These rights were recognized as important civil rights in NALSA. Abstention from addressing these issues in the Act seems to be a glaring gap concerning the rights and welfare of the transgender community.
It is not shocking that the transgender community views the above provisions as particularly regressive, especially considering the socio-cultural milieu in Indian society.[xxx] Protests have been undertaken by the community against the Act, on the streets as well as online. Several other activists joined them in these protests. The Act has left more questions unanswered than the concerns it aims to address. It appears to be a check in the box, which, in its present form, may not be of much help to the transgender community. The timing of the passage of the same Bill[xxxi] in The Lok Sabha is also suspicious.[xxxii] The date on which the Act was passed is being referred to as the ‘Gender Justice Murder Day’.[xxxiii]
Changing the social mindset plays an important role in mitigating the stigma against the transgender community. The government can encourage greater sensitivity towards the challenges faced by them by properly educating the masses about the same. The inclusion of such a provision in the Act can go a long way in addressing discrimination against transgender people.
While the Act does introduce principles aimed at the integration of the transgender community with mainstream society, the absence of particular provisions defeats the purpose of the Act. In light of these concerns and certain critical shortcomings identified above, the Act in its present form requires reconsideration.
[i] The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [ii] AIR 2014 SC 1863 (India). [iii] Transgender, Wex (Legal Information Institute, Cornell Law School), https://www.law.cornell.edu/wex/transgender. [iv] M. Michelraj, Historical Evolution of Transgender Community in India, 4 Asian Review of Social Sciences 17 (2015). [v] Id. at 18. [vi] Id. [vii] Anirban Banerjee, Social Change & The Marginalized- The Case Of The Queer Community (2019). [viii] India Const. art. 14. [ix] India Const. art. 15. [x] India Const. art. 19. [xi] India Const. art. 21. [xii] The Rights of Transgender Persons Bill, 2014, No. 49, Bills of Parliament, 2014 (India). [xiii] Special Correspondent, Parliament passes Bill to protect rights of transgenders, The Hindu (Nov. 26, 2019), https://www.thehindu.com/news/national/parliament-passes-bill-to-protect-rights-of-transgenders/article30087790.ece. [xiv] Transgender Persons (Protection of Rights) Bill, 2016, No. 210, Bills of Parliament, 2016 (India). [xv] Section 2(k), The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xvi] Transgender, Merriam Webster Dictionary (11th ed. 2003). [xvii] Intersexuality, Merriam Webster Dictionary (11th ed. 2003). [xviii] Section 3, The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xix] Section 3, The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xx] Section 5, The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xxi] Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India). [xxii] S and Marper v. United Kingdom, (2008) App nos. 30562/04, 30566/04 (ECtHR). [xxiii] Chapter 4, The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xxiv] Section 12(2), The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xxv] Section 12(3), The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xxvi] Katz-Wise, Sabra L et al., “Lesbian, Gay, Bisexual, and Transgender Youth and Family Acceptance”, Pediatric clinics of North America, vol. 63,6 (2016): 1011-1025, doi:10.1016/j.pcl.2016.07.005. [xxvii] Section 15, The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). [xxviii] Anureet Watta, Why The Indian LGBTQ Community Rejects The ‘Progressive’ Trans Bill, Youth Ki Awaaz (July 15, 2019), https://www.youthkiawaaz.com/2019/07/why-the-trans-rights-bill-is-unacceptable-to-the-lgbt-community/. [xxix] The Indian Penal Code, No. 45 of 1860, s. 375. [xxx] Chaitanya Mallapur, Why New Bill Meant To Benefit Transgender People Is Termed Regressive, IndiaSpend (Aug. 22, 2019), https://www.indiaspend.com/why-new-bill-meant-to-benefit-transgender-people-is-termed-regressive/. [xxxi] The Transgender Persons (Protection of Rights) Bill, 2019, No. 169, Bills of Parliament, 2019 (India). [xxxii] Vijayta Lalwani, What next for transgender people, as India clears a bill that activists call “murder of gender justice”?, Quartz India (Nov. 27, 2019), https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community/. [xxxiii] Aena Thakur, Not protection of rights, but murder of rights: Trans community on bill passed in Rajya Sabha, The Statesman (Nov. 27, 2019), https://www.thestatesman.com/india/not-protection-of-rights-but-murder-of-rights-trans-community-on-bill-passed-in-rajya-sabha-1502827144.html.
Government Law College, Mumbai
(Images used for representative purpose only)