Over the last few years, several steps have been taken to eliminate the historic discrimination of transgenders and reduce their exclusion from mainstream India.
“Transgender” is an umbrella term that describes people whose gender identity or expression does not match the sex they were assigned at birth. On the other hand, an intersex person, who is also a part of the transgender community is someone who was not assigned the correct gender at birth due to confusion related to reproductive anatomy that does not fit the boxes of female or male. A transgender disorder is when the gender is not in alignment with the sex of a person assigned at birth.
In April 2014, the Supreme Court of India gave a major boost to transgender rights by its decision in the landmark case of National Legal Services Authority v Union of India, known as the NLSA judgement, where it recognized the multi-facet rights of the transgender community. It recognized the transgenders as the third gender and sort to provide them with social protection. It also made references to the Hijra, Kinnar and Jogti communities spread across the country. The Supreme Court rightly mentioned the various constitutional rights under Article 14 where every person’s rights are protected, hence, automatically including transgenders, Article 15 and 16 which prohibits discrimination based on sexual orientation, Article 19 stating it as one of the most important arguments, in this case, as it protects Privacy, Gender-Identity and Integrity and lastly Article 21 which includes the right to choose gender identity under the right to live with dignity.
Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue
Justice KS Radhakrishnan.
The Apex Court made it clear that India was in dire need of fresh provisions which support present-day needs. This case highlighted a major loophole in the existing Indian laws which focus on binary gender i.e male/female. Transgender rights on the other hand were not protected by any provision of law in any manner whatsoever leading to discrimination against the community.
Since then, from re-drafting the rights of the Transgender Persons Bill 2014 to including transgenders as beneficiaries in social security schemes, many would say that India has made great strides towards ending discrimination of transgender persons in the country.
However, looking at the history of the various bills that were drafted and the most recent, Transgender Persons (Protection of Rights) Act, 2019 one can say it has been nothing but a bed of thorns, especially for the Transgender community.
Post the NLSA judgement, the Transgender Persons (Protection of Rights) Bill, 2016 and 2018 were released to which the transgender community strongly objected. The bills lapsed owing to the dissolution of the Lok Sabha, after which the Transgender Persons (Protection of Rights) Bill, 2019 was released with a few changes as a result to the opposition from the community. It later received the President’s assent and came into effect as the Transgender Persons Act, 2019 act in January 2020.
The question of the benefits of this Act needs to be weighed in the background of the legal steps that preceded this Act. In the NLSA judgement, the Supreme Court provided all of the protections provided under this Act AND MORE. It allowed a transgender person to fully self-identify, did not violate fundamental constitutional rights unlike this bill, medical care, anti-discriminatory policies, dealt with the question of violence and atrocities upon transgenders.
The question remains, why are Transgender Indians opposing an Act that aims to protect them?
Some of the flawed provisions under the Act are :
- It does not allow the right to complete self-identification but instead leaves your fate in the hands of a District Magistrate for issuance of a certificate of identity as a transgender person, failing which there is no other recourse for the same. Also, a transgender person can obtain an identification as male or female only after applying for a revised certificate to the district magistrate, only post a sex reassignment surgery.
- The Act does not talk about reservations for transgenders, unlike the NALSA judgement.
- There is no provision for Property Rights, Adoption, Marriage and Surrogacy.
- No penalties are levied for discrimination of any sort against a transgender person.
- A trans child cannot separate from immediate family on the ground of being a transgender except under the Court’s order. This is indirectly a punishment especially in India where the transgenders collectively come together and spend their lives away from their biological family owing to the societal unacceptance since many decades now.
- The penalty levied for any harm/assault caused to a transgender person is a maximum term of 2 years and fine, whereas, if a female is assaulted/raped the accused is awarded a minimum term of 7 years which may extend to life imprisonment.
- The National Council for Transgender Persons constituting of 30 members shall include only 5 members from the Transgender Community. It also lacks any independence to carry out its functions.
When a landmark judgement has brought Indian Transgender rights up to a certain benchmark, why have an Act which overrides that? The NLSA judgement has rightly set a benchmark which the Act needs to match up to.
All of this has ultimately led to the regression of the transgender community.
On 18 April 2020, the government published Draft Transgender Persons (Protection of Rights) Rules, 2020 in exercise of its powers under the 2019 statute, seeking comments and suggestions on the same from the public.
