Open Access Research Article
TRANSGENDER RIGHTS- A CRITICAL STUDY
Published Paper
Article Details
TRANSGENDER
RIGHTS- A CRITICAL STUDY
AUTHORED BY - ABHINAY PRIYADARSHI,
L.L.M., STUDENT, CHANAKYA NATIONAL LAW
UNIVERSITY, PATNA
Abstract
The identity of person is instead of
their natural birth, it is determined by the society who judge you on the way
you behave and they gives you, its own identity and accordingly, you recognised
in the society. This transgender person
has faced the same judgemental identity by the society. Being constitution provisions for the
prohibition of discrimination, this community has long battle to get its
recognition and identity in the society. A dream to that has been achieved
through NALSA Judgement but really this community have in reality getting
attention in the society. Through this research paper will try to shed light on
the issues faced by the transgender community and the criticisms associated
with the Transgender Persons (Protection of Rights) Act, 2019 and the
government’s initiative to protect the rights and curb the problem of the
transgender community.
Key Words: - Gender’s Right & Identity,
Dignified Life, Opportunity & Adequate Representation.
Index of Authorities…………………………………………………………
Chapter 1…………………………………………………………………………
1.1
Introduction……………………………………………………………..
1.2
Review
of Literature……………………………………………….
1.3
Scope
of Study…………………………………………………………..
1.5
Research Methodology…………………………………………………….
1.6
Research Questions………………………………………………………….
1.7
Hypothesis……………………………………………………………………..
1.8 Limitations
of Research……………………………………………………..
Chapter 2………………………………………………………………………..
2.1 History of
Trans-gender’s in India
………………………………………..
2.2 transgender rights
during the Colonial era…………………………….
2.3 Condition of
Transgender after Independence……………………….
2.4 Legal Visibility to
Third Gender Rights…………………………………...
2.5 The NALSA Judgment: A
Ray of Hope……………………………………
Chapter 3…………………………………………………………………………
3.1 Legislations For Tran
gender’s Rights In India……………………….
3.2 Drawbacks Of
Transgender Person Act,2019………………………….
3.3 Global Position Of
Transgender Rights……………………………….
3.4
critical analysis………………………………………………………….
Chapter 4…………………………………………………………………………
Conclusion &
Suggestions………………………………………………….
Bibliography……………………………………………………………………..
Index of
Authorities
List of Abbreviations:-
·
art. -Article
·
s-
Section
Statues:-
·
Constitution
of India, 1950.
·
The
India Penal Code, 1860.
·
The
Transgender Person (Protection & Rights) Bill, 2016.
·
The
Transgender Act (Protection & Rights) 2019.
Case Laws:-
·
National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438.
·
Navtej Singh Johar.v.Union of India, AIR 2014 SC 1863.
Chapter-1
1.1Introduction
The biological construction of
a person's genitalia is the only factor that is considered when determining
whether a person is male or female according to traditional standards.
Nevertheless, there are people who defy the biological binary and do not
conform to this custom. These individuals exist in the real world. These
individuals are referred to as "transgender." These transgender
people, who are often mischaracterized as beggars who tap on the rolled-up
windows of our cars at traffic signals or as dancers in local bars, have a
difficult time breaking free of the negative stereotypes that surround them.
The prefix "trans" can mean "beyond," "across,"
or "over" according to the definition given in the dictionary.
However, the term "transgender" does not simply refer to a gender
that straddles the line between two categories. The average person does not
have a good grasp on the meaning of this term most of the time.
It is a broad term that
encompasses all people who live a significant portion of their lives
manifesting an innate sense of gender that differs from suppositions of their
birth sex. These people are referred to as transgender individuals. In India,
some of the regional terms are used to represent the community. For example,
the term kothi signifies a range of feminine identified people, who have
been assigned male gender at birth. Similarly, other prominent regional
and trans-regional identities representing this community are hijras,
aravani, jogtas/jogappas, and shiv-shaktis.[1]
This rambling constitution of transgender subsumes many regional terms and
identities. Hence, the desire for a rigid definition, set the platform for the
NALSA judgment which defined the term in the following words, a transgender is
generally described as an umbrella term for persons whose gender identity,
gender expression or behavior does not conform to their biological sex.[2]
Thus, it can be said that the term transgender is not only limited to persons
whose genitals are intermixed but it is a blanket term used to refer to persons
with identities that do not get along with the strict dual categories of man
and woman and whose gender identity and expression differs from the
conventional norms expected from their birth sex. Transgenders have been
part of Indian society for centuries. The rights of transgender persons had
been suppressed by the antiquated and anachronistic British era laws in India.[3]
After the enactment of the Constitution of India, sexual minority has waited
long enough for recognition of their identity and rights. They have been
subjected to discrimination, harassment and treated as second class citizens.
Transgenders are one of the more
marginalized sections of society who have suffered much discrimination in their
life. For them, life has never been easy. Our society, as advanced as it claims
to be, fails to acknowledge different gender identities and expressions. There
is an unwillingness to accept change and something that’s different and the
problem of these people starts from here. Society is not ready to accept them.
The foremost thing the transgender people wants from society is respect and
honour, values upon which basic human rights are based on. Every human being
deserves that. To help transgender people overcome various discrimination
government passed the Transgender Persons (Protection of Rights) Bill, 2019 on
26th November 2019. The Bill has subsequently become an Act with the
President’s assent on 5th December 2019. However, the Act has failed to meet
the expectations of the trans people.
1.2 Review of Literature
Books
·
Basu, Durga Das, Comparative Constitutional Law,
Prentice Hall of India (P) Limited, New Delhi, 1984.
·
Seervai, H.M., Constitutional Law of India, Vol. I,
4th edition; Universal Law Publishing Co. Pvt. Ltd., Delhi, 2013.
·
Shukla,V.N., Constitution of India, M.P. Singh,
revised by, 10th edition, Eastern Book Co., Lucknow, 2006.
·
G
B Reddy and Baglekar Akash Kumar, Transgender Persons and The Law: A
Commentary, EBC Reader, 1st Edition, 2022.
Articles
·
Akanksha
Mishra, Third Gender Rights: The Battle for Equality, Christ University Law
Journal, 5, 2 (2016), 9-21 ISSN 2278-4322.
·
AMARAL
SINGH, Critical Analysis of Transgender Persons (Protection of Rights) Act,
2019, available at www.probono-india.in, (last visited on 14-09-2022).
·
Mugdha
Dhar, Critical Analysis of Transgender Persons (Protection of Rights) Act,
2019, available at https://www.law-order.org/post/critical-analysis-of-transgender-persons-protection-of-rights-act-2019,
(last visited on 12-09-2022).
1.3 Scope of Study
The scope of this study to analyze
the Transgender Persons (Protection of Rights) Act, 2019 and shed light on the
critics as it has failed to identify and solve the problems of the
community. The reference has been made
with the prevailing law relating to research topic to find out that whether
they are meeting the issues involved in the research.
1.4 Research Aims & Objectives
I.
To
study the social and legal position of the transgender community and the
judicial treatment of the same
II.
To
highlight the historical growth of the transgender people and analyzing their
position in jurisdictions across the world.
III.
To
critically analyze the Act and shed light on the critics as it has failed to
identify and solve the problems of the community.
IV.
To
study that after the recognition of the
rights as well as creation of Act, still
these communities rights are not recognized at public places, institutions and
these communities are deprived from their basic rights and facilities.
1.5 Research Methodology
The methodology deployed will be doctrinal for which various sources such
as books, internet, statutes, Articles & news papers will be referred for
this research topic.
1.6
Research Questions
1. How these communities travel a lot
in getting their rights recognized?
2.
Is these communities are still fighting for the implementation of
their basic rights?
3.
Is these communities are still facing the discrimination in the
societies and depriving from their basic rights even after the recognition as
Third Gender?
1.7
Hypothesis
The main aim of this research study
is to find out that after the enactment of the Constitution of India, sexual
minority has waited long enough for recognition of their identity and rights.
They have been subjected to discrimination, harassment and treated as second
class citizens. This research will also focus on highlighting the historical
growth of the transgender people and analyzing their position in jurisdictions
across the world. This research paper will also see how even after the
recognition of rights and formation of separate acts, these communities are
still facing the discrimination in the societies and depriving from their basic
rights.
1.8 Limitations of
Research
The Present research has following below
limitations:
1.
The
research study has been done from the books, articles, statues and the
Internet.
2.
The
research focuses on analysis of laws relating to research topics and materials
available on internet because of time limitation as well as not possible to
collect data physically.
3.
There
is possibility of further study of this research paper with evolution of new
circumstances as well as further amendment of law relating to research topic
and fulfilling the gap because of present law not meeting the issues involved
in the research topic.
Chapter
2
2.1 History of
Trans-gender’s in India
It is stipulated in Indian mythology,
which provides glimpses of reality at times as well as a quick look at the
reflections of the past, that transgender people, who are frequently
stigmatised in today's society, were once venerated and appreciated to a significant
degree.
The concept of a third gender can be
traced back to Hindu mythology, which contains many examples of gods and
goddesses switching genders, manifesting as an Avatar of the opposite sex, and
so on. This is where the idea first emerged. It was common practise to think of
gods as embodying both male and female characteristics at various points in
history and in their varying incarnations. For instance, Ardhanarishvara is
revered by many people because he was created by fusing Lord Shiva and his
consort Parvati together.
Both the Mahabharata and the Ramayana
were incredibly rich sources of information regarding transgender people. It is
likely that Shikhandi, a character from the Mahabharata, holds the title of the
most powerful transgender figure to be found in Hindu mythology.
Another minor but important
transgender character is Aravan, also known as Iravan, who is the son of
Arjuna. He is believed to have been the one who established the family lineage
from which transgender people are born. Another scene in the Mahabharata that
features the appearance of third genders is the one in which Arjuna is banished
to the forest. There, he pretended to be a eunuch by the name of Brihandala and
presided over rituals during important life events like weddings and births of
children. The Ramayana is yet another literary work that has served as a source
of motivation for the development of transgender people. While Rama was about
to enter the forest for a period of fourteen years, he addressed his followers
as "men and women" and requested that they return to the city.
The hijras did not consider
themselves to be bound by the order, so they made the decision to stay with
him. As a result of Rama's admiration for their unwavering devotion, he
bestowed upon them the ability to bestow his blessings on joyous events.
In point of fact, during the time of
the Mughal Empire (1526-1857), hijras were well-known for the positions they
held in Royal Courts as political advisors, administrators, generals, and guardians
of the harems. These jobs were among their many responsibilities. They even
occupied high positions in the Islamic religious institutions and were also
able to influence state decisions. Later, these benefits were removed through
legislation in the British period.[4]’’
2.2 transgender
rights during the Colonial era
The actions of transgender people
were seen by the British as a form of solicitation for sexual services. Their
slide from prominence began in the 18th century, when the British colonial government
was in control. They were marginalised in Indian society and faced
discrimination in the workplace, in jobs, in public places, and in services
such as education and healthcare. They were always on the receiving end of
negative behaviour and attitude due to the fact that they belonged to a sector
that was marginalised and socially excluded. Due to the fact that the general
public did not accept them, their social contributions were limited. This, in
turn, led to a lack of self-confidence and self-respect, which ultimately
resulted in their being excluded from society. The inhumane condition of
transgender people became even more deplorable as a result of society's
perception and treatment of them as "different" individuals who were
unable to conform to the standards of morality that were established. As a
result of being rejected by society due to their gender identity, they were
forced to resort to beggary and prostitution as their only means of
subsistence.
Due to the prevalent binary gender
concept of being either male or female, the implementation of the rights that
were guaranteed to them in an effort to improve the situation was fraught with
insurmountable obstacles. However, the rights themselves were guaranteed to
them. For instance, in 1994, transgender people were granted the right to vote;
however, the process of issuing them voter identification cards became bogged
down in.
In the 19th century, they
criminalized all penile-non-vaginal and sexual acts through Section 377 of the
Indian Penal Code, 1860. The purpose of the Britishers was to remove the
visibility of the transgender community from social categorization so they
legislated the Criminal tribes Act 1871 (hereinafter CTA) which led the
community under surveillance and control of Britishers by referring to them as
habitual offenders[5]. Despite
the efforts of the Britishers to erase the community,the transgender community
managed to survive and continue their public presence.
2.3 Condition of
Transgender after Independence
Following India's achievement of its
independence, the Criminal Tribes Act of 1871 was declared unconstitutional by
the nation's first Prime Minister, Jawaharlal Nehru. Nehru believed that the
Act should be repealed because it tainted the Constitution of India. The
Criminal Tribes Act of 1871 was the basis for a new piece of legislation that
was passed by the Indian government called the Habitual Offenders Act. This new
law maintained the majority of its predecessor's provisions. Since the
country's independence, the transgender community has been forced to endure an
extremely precarious existence. As a result of the community's lack of legal
recognition, they were unable to take advantage of the socio-economic benefits
or participate in the political process, both of which require official
identity that has been validated. Over the years the community has suffered
harassment, violence from the community which has feared sexual and gender non-
conformity[6].
In the year 2014, the Supreme Court of India in the case of NALSA .v.
Union of India[7]
legally recognized transgenders as “third gender” and directed the government
to formulate social welfare schemes for the community this decision was widely
appreciated by the human rights activists across the globe.
Further, the Supreme Court of India
in the case of Navtej Singh Johar .v. Union of India[8], declared
part of Section 377 of the Indian Penal Code 1860 as unconstitutional and
decriminalized consensual sex between adults of the same gender.
2.4 Legal Visibility
to Third Gender Rights
On April 15th, 2014, after years of
discrimination and hostility, the transgender persons could finally wear the
legal costume of aseparate identity, after Supreme Court, in the landmark
judgment of National Legal Services Authority v. Union of India & Ors.[9],
recognized the third gender category in the eyes of law. The Court finally
busted the bubble of binary gender structure of „man? and „woman? and granted
equal rights and protection to transgender persons under the constitutional
principles of Art. 14, 15 and 16[10].
In Article 14 of the Indian Constitution, which deals with Equality before law,
the term „person? does not restrict itself to the dual concept of man and
woman.
Thus, Hijras/transgender persons who
are neither male nor female, also fall within the expression „person? and are
entitled to legal protection of laws in all spheres of State activity.
Furthermore, Articles 15 and 16[11]
are used to broaden the scope of sex to include psychological sex? or gender
identity? and hence held that no one could be discriminated on the grounds of
sexual orientation. The Court also made an effort to protect one’s gender
expression which is majorly reflected through dresses, actions, behaviour and
similar forms. The Supreme Court stressed on the importance of right to dignity
by recognizing one’s gender identity within the ambit of Article 21 of the
Indian Constitution. Further, beyond prohibiting discrimination and nuisance,
the Court extended the global principles of dignity, freedom and autonomy to
this unfairly marginalized and vulnerable community and met the norms of
Universal Declaration of Human Rights and 1948, the International Covenant on
Economic, Social and Cultural Rights, 1966, the International Covenant on Civil
and Political Rights, 1966 as well as the Yogyakarta principles.[12]Based
on proper pronouncements and philosophical ideologies as well, this landmark
decision, for the first time, gave due recognition to gender identity based on
the reassigned sex after undergoing Sex Reassignment Surgery (SRS) and
explained that the person has a constitutional right to get the recognition as
male or female after SRS, which was not only his/her gender characteristic but
has become his/her physical form as well. In September 2014, Ministry of Social
Justice and Empowerment followed up with an “Application of
clarification/modification” to the Supreme Court, which sought to explain the
implications of the judgment with regard to the recommendations of the
aforementioned expert committee report.
2.5 The NALSA Judgment: A
Ray of Hope
The NALSA judgment should certainly
be lauded for condemning discrimination due to gender and for bringing hope and
promise to a community which has always been far outside the ambit of legal
framework. With immense faith and vision, the judges have given a legal
identity to all those persons whose bodies which do not match up with the
accepted gender standards at birth. One revolutionary aspect of the judgment
came as a major implication for the current laws related to marriage, adoption,
labour laws and inheritance which will now have to move away from the binary
system of male and female in order to facilitate the legal rights of
transgender persons. Further, it is impossible to ignore the irony that the
judgment was delivered only a few months after the case of Suresh Kumar
Koushal and another v. NAZ Foundation and Others[13]
which upheld the constitutionality of Section 377[14]
of the Indian Penal Code. The Court, accepting that Section 377 is
discriminatory against the transgender persons, clarified that the judgment
leaves the Koushal case uninterrupted and thus single-handedly focusing on the
legal recognition of the trans-sexual community. One of the most innovative
turn in the judgment was the involvement of fundamental rights directly from
the Constitution, especially the application of Article 19, thus, acting as a
bold motive in acknowledging the rights of a transgender being. The remedies
that the Court awards are also exceptionally fascinating. Three mandates have,
as of now, been mentioned: that hijras are currently perceived as the third
sex, that trans-persons have the privilege to pick between being male, female
or having a place with the third gender, and that trans persons are to be given
benefits that are duly offered under governmental policies regarding
minorities, since they would qualify as a socially disadvantaged, backward
class. The Court goes ahead to give a large number of different bearings,
including some particular orders like providing user friendly toilets and
treatment for HIV affected trans-persons; some expansive ones like direction to
furnish them with medical care in all doctor's facilities, to outline different
social welfare plans for their advancement, and to find a way to create public
awareness to guarantee their social consideration and some uncertain ones like
the direction to truly address issues being faced by them and to take measures
to guarantee a respectful place for them in social and cultural life.
Chapter
3
3.1
Legislations For Transgender Rights In India
As per the 2011 census, 4,87,803
persons do not identify them as male or female[15].
The first move to recognize the rights of legislation was made by Tiruchi Siva,
Member of Parliament from Dravida Munnetra Kazagham party when she introduced a
private member bill in the Lok Sabha[16].
The aforesaid bill was unanimously passed by the Council of States but was
never debated in the Lok Sabha.
Key Highlights of the Transgender
Persons Bill 2014
Ø Offered remedies against violence and
harassment;
Ø Provided for right such as equality,
the right to live in society and freedom of speech;
Ø Provision for equipping transgender
with skill development and providing them jobs for their rehabilitation and
social security; and
Ø Establishments of transgender's
commission at National and State levels and transgender right courts.
After the aforesaid NALSA judgement,
where the Supreme Court of India recognized the transgenders as the third
gender, the Transgender Person Bill (Protection & Rights) was
introduced by Thaawarchand Gehlot Minister of Social Justice and empowerment.
The bill was strongly opposed by the opposition was referred to the Standing
Committee and was passed on 17th December 2018 in the Lok Sabha. The
salient features of Transgender Person Bill 2016, are enumerated
below[17] -
Ø The bill defined transgender as a
person who is partly male or female, neither male nor female. Further, the
person's gender should not match the gender assigned at birth includes
trans-women, trans-men, gender queer and person with intersex variations;
Ø The transgender will have to obtain a
certificate of proof of identity as transgender to enjoy rights under this
bill;
Ø The District magistrate will be
conferred with the power to grant the certificate of proof of identity on the
recommendation of the screening Committee which consisted of a medical officer,
psychologist. District welfare officer, and transgender person.
Ø The bill prohibited discrimination
against transgenders in institutions such as healthcare, education, and
employment. It further directed the state government to make welfare schemes
for the community.
Ø It also provided for two years
imprisonment and fine for offences like compelling transgender to beg and
denying them access to public places.
The Transgender person Bill 2016 was
vehemently opposed by the transgender community as it violated their right to
self-identity which is a fundamental right under the Constitution of India.
After the Navtej Singh Johar judgement in 2018, the Minister of Social Justice
and welfare another Transgender Persons Bill (Protection & Rights)
Bill, 2019, which later became an Act as it received president
assent on 5th December 2019. The key highlights of the Act are
listed below[18]-
Ø It defines transgenders as one who
does not match the gender assigned to him at birth. It includes persons with an
intersex variation, gender queers, trans-men, trans-women and persons with
intersex variations;
Ø The district magistrate is empowered
to give a certificate of identification to identify the person as transgender;
Ø Prohibits discrimination against
transgender and unfair treatment is an institution like healthcare, employment,
education and access to public facilities;
Ø Recognizes the right to residence of
a transgender person;
Ø Provides for the formulation of
schemes by the government like vocational training programs and self-employment
for their social welfare;
Ø It states that the government must
take steps to provide health care facilities to transgenders which includes HIV
surveillance centers and sex reassignment surgeries;
Ø It also recognizes offenses such as
bonded labour, physical and sexual abuse and provides for a minimum penalty as
six months imprisonment and maximum for two years with a fine; and
Ø The Act also provides for the
establishment of the National Council for Transgender to monitor the impact of policies
and legislation for transgender.
The Act which was passed to address
the needs of the community has left many problems unanswered. It had led to a
nationwide outcry by the transgender community criticizing the Act[19].
Furthermore,
in 2020 the Transgender person (Protection of Rules) 2020 was introduced to
explain certain terms used in the 2019 Act. The draft Rules was released in
April 2020 and in August 2020, and finally, on 25th September, the government
notified the Rules.
The Transgender Protection
Rules 2020, was passed mainly to explain the 2019 Act in a broader sense. The
Rules seems to have tried to bridge the gap between the Act and the directions
given by the Supreme Court in NALSA Vs Union of India. It basically contains
the manner and specifics in which the certificate will be issued to them. The
salient features of the Rules are –
a.
The application for a
certificate of identity that is to be sent to DM should be accompanied by an
affidavit and psychologist report.
b.
The certificate must be issued
to the applicant only if he has been a resident for one year under the
jurisdiction of that district magistrate.
3.2 Drawbacks Of
Transgender Person Act,2019.
There are several problems in the
legislation which are needed to address by the government. The Act is
problematic from the fact that it was passed in the Rajya only just after three
days of debate and discussion without any amendment and additions to the Act.
It ignores the Right of self-determination of identity as stated in the NALSA
judgement[20]. It
stated that a person has a right to self-identify himself as transgender
contrary to the rule of law laid down in the judgement. The Act confers the
power on the district magistrate to issue the Certificate of identification to
claim benefits under this Act. If the District magistrate denies the
certificate, it does not provide for a redressal mechanism. The Transgender Bill, 2016 provided for a
screening committee to make recommendations to the District Magistrate to
prevent any misuse. However, the provision was removed in Transgender Bill,
2019.
Few Major Drawbacks:-
·
Recognition of transgender under existing laws
The civil and criminal laws India
identifies only two types of genders man and woman. The Act does not specify
whether they would also be recognized as transgenders under the same category[21].’
·
No Reservation for transgender persons
The Act does not provide for
reservation for transgender persons. The Transgender Persons Bill, 2014
provided for 2% reservation for transgender in government and government-aided
schools for primary, secondary, and higher education. It further provided for
2% reservation for transgender in government establishment. After the
pronouncement of NALSA judgement which stated that the transgender community
should be treated as socially and economically backward and reservations should
be provided to them under the category.Various petitions were filed across
different High Courts in the country to implement the reservation scheme. The
High Court of Madras in the case of Swapna .v. Chief Secretary[22]directed
the State government to form a scheme for reservation of transgender within 6
months,which is yet to be complied with.
·
Does not recognize same-sex marriages
The decriminalizing of Section 377 of
the Indian Penal Code 1860 itself has not been able to end the discrimination
against homosexual couples. The need of the hour is to legally recognize the
same sex as heterosexual marriages for which the Act is silent. The compelling
and pragmatic reason to legalize same-sex marriages is that benefits such as
maintenance, succession, and pension rights that are only available to married
couples. Many of the same-sex couples desire acceptance and recognition of
their relationship.[23]
·
Punishment for sexual abuse against transgender not adequate.
A report by National Coalition of
Violence Group in 2012 stated that transgender people are two times more likely
to get harassed and abused in intimate relationship[24].
The Act provides only 6 months minimum and maximum for 2 years with fine. In
the Indian Penal Code 1860, the minimum punishment for assault or criminal
force used against women with intent to disrobe a woman is minimum for three
years[25].
To maintain minimum security keeping in consideration the history of sexual
abuse and suffering against the transgenders. The punishment should be
increased to a minimum of three years and 7 years of maximum imprisonment with
fine.
The rule of law prescribes that law
should not place undue cognitive or behavioral command on people. It should be
stable and according to the demands of society. The law should be consistent
and solve the contradiction legally which may arise[26].
The law proposed for the rights of transgender ignores their needs and places
undue command as it is not according to the needs and demands of the community.
The
judgment of NALSA was definitely a constructive step towards humanization of
the judicial system and was a major step towards eliminating the injustice done
to almost five million people who were running from one place to another
without any identity. Still there are some of the problems that were
associated with this act which are:-
1)
Firstly the Act was drafted and passed
without taking any suggestions or approaching anyone from the community. The
assumptions were made based on decades-old data and stereotypes.
2)
They are required to have a sex
reassignment surgery and approach a district magistrate who will further decide
whether they are transgender or not. This is a clear violation of their privacy
and it contradicts the 2014 NALSA (National Legal Services Authority of India)
judgement by the Supreme Court. It violates their right to self-identification.
3)
The NALSA v. Union of India is a
landmark judgement of Supreme Court which declared transgender people as the
‘third gender’. Further, the judgement held
that transgender persons were entitled to fundamental rights under articles 14,
15, 16, 19(1)(a) and 21 of the Constitution. It was a landmark judgement
because it was the first of its kind to uphold the fundamental rights of
transgender persons in India.
4)
One of the major
drawbacks of this Act was that it used the terms transgender and intersex
interchangeably. Both terms have a different meaning. By doing this, the
government is striking out the intersex identity. As per Section 2(i) of the
Act, intersex or person with intersex variations means a person who at birth
shos variations in his or her primary sexual characteristics, external
genitalia, chromosomes or hormones from the normative standard of the male and
female body. As per Section 2(k) of the Act, 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), person with intersex variations, genderqueer and person having such
socio-cultural identities as kinner, hijra, aravani and jogta.
5)
The Act
criminalises sexual abuse of a transgender as a punishable offence but it fails
to clear as to what constitutes sexual abuse.
6)
If a person sexually abuses a transgender,
he/she is punishable for a maximum of 2 years which is way less of a punishment
for such a heinous act when compared to a crime against a cisgender woman the
punishment for which may extend up to life imprisonment. The Act makes it
compulsory for trans children to be with their family. If their family does not
want them or unable to take care of them then they will be sent to a
rehabilitation centre. Instead of sending them to their own community where
they will feel safe with their own people, they are being sent to a
rehabilitation centre.
7)
It doesn’t provide
any reservation for transgenders, who are a marginalized community.
8)
The Act doesn’t
mention anything about civil rights like marriage rights, adoption rights, and
property rights, etc.
9) Though the Act incorporates the fundamental human
rights principle of non-discrimination and self-perceived gender identity, but,
the Act seems to fail to portray the same sentiments as that of the decision
rendered in NALSA judgment.
10) The Act provides under Section 6 that the district
magistrate has to issue a certificate of identity as a transgender person.
Further, Section 7 states that if after the issue of a certificate under
sub-section (1) of section 6, a transgender person undergoes surgery to change
gender either as a male or female, such person may make an application, along
with a certificate issued to that effect by the Medical Superintendent or Chief
Medical Officer of the medical institution in which that person has undergone
surgery, to the District Magistrate for revised certificate, in such form and
manner as may be prescribed, then, the District Magistrate shall, on receipt of
an application along with the certificate issued by the Medical Superintendent
or Chief Medical Officer, and on being satisfied with the correctness of such
certificate, issue a certificate indicating change in gender in such form and
the manner and within such time, as may be prescribed. This seems to put an unnecessary
procedural requirement in the form of having a certificate issued specifically
for the purpose of being identified as a transgender. This goes against the
very dicta of the court in the past and the nature of rights to be guaranteed
to the transgenders in form of having an identity irrespective of any
affirmations from any authority against self-determination.
11) The Act also nowhere encompasses or focuses on
reservations in educational institutions and public employment, but only talks
about all-inclusive education for transgenders and non-discrimination in
matters related to employment in any establishment.
12) The Act fails to focus on the very primary
socio-legal issues surrounding transgenders and their rights in the country.
13) The Act very superficially and hypothetically deals
with very sensitive issues related to transgenders. The Act though provides for
coverage of medical expenses by a comprehensive insurance scheme for Sex
Reassignment Surgery, hormonal therapy, laser therapy or any other health
issues of transgender persons but fails to specify any mode or mechanism for
the same.
14) The Act at many instances refer to welfare schemes,
but there is no clarity with regard to the implementation and distribution of
funds for the same.
15) The Act fails to address the very primary and
fundamental issues regarding having a gender-inclusive society guaranteeing the
rights and liberties of transgenders. It only seems to be a very hastily the
drafted document which is based on the utopian state of affairs when it comes
to transgender rights in the country. Even after the Supreme Court and various
High Court decisions, the socio-legal issues seems to be a huge impediment in
the fight by transgenders and there is still a long way to go for achieving the
end-goal of having a sensitive society and legal system in place, where
transgenders need no longer have to raise their voices or suffer in anguish for
the protection of their Constitutionally guaranteed basic fundamental rights.
16) The aforesaid act came to force on
10th January, 2020, however, to add on to their woes, the Government
recently released the draft rules under the Act. The draft was initially
released on 18th April, 2020 and the last date of receiving comments and
public reviews was kept on 30th April, 2020, however, later they extended
it till 18th May, 2020.
17) However, the constitutional validity of the Act has
been challenged before the Supreme Court, on the loopholes mentioned
above, the challenge thus, rests on the grounds of self-determination,
equality, non-discrimination, right to privacy amongst others. Though the
Supreme Court has sought response from the Central Government on the
aforementioned issue, it is yet to seen that how the Apex Court of the country
reacts to this regressive piece of legislation which suffers from the vice of
arbitrariness and vagueness and tries to deliberate on the nuances surrounding
rights of transgenders in the country, no doubt, it will have a much bigger
challenge/impediment in form of NALSA judgment.
3.3 Global Position
of Transgender Rights
In the year 1980 American Psychiatric
Association had removed the word “homosexuality” from the Diagnostic and
Statistical Manual for Psychological disorder bypassing and resolution. The
Association opined that attraction towards the same – sex is a natural
condition[27]. There
are many countries that have also adopted a progressive approach towards gender
recognition as reform such as Denmark, Argentina and the United States. The
position of transgender rights in these countries allude below –
United States of America
The U.S Supreme Court in Lawrence[28]
had relied on the statement of the amicus curiae which stated that
homosexuality and heterosexuality both form a normal part of sexual identity.
Transgenders in the United States of America enjoy civil and basic
constitutional rights. The employer who has more than 15 employees is
prohibited to discriminate against people based on sex and gender identity or
gender orientation[29]. There
is also a ban on discrimination by schools based on gender identity and also
recognizes rights to access to separate sex programs and facilities which are
consonance with their gender identity[30].
There is also a Federal Fair Housing Act which prohibits discrimination on the
basisof sex by the landlords. The courts have also interpreted this law in such
a manner to protect the LGBTQ community[31].
The United States is far ahead in terms of providing safety and protecting the
rights of transgenders from India.
Denmark
In Denmark, an amendment was passed
in 2014 regulating the Danish Population register which allowed people to
obtain new official documents changing their gender identity by a few simple
administrative steps[32].
Many countries require the people to go through a procedure conducted by
Medical experts and psychologists for obtaining a change in their gender status
which is an outdated concept of gender identity. Denmark is the first country
that has come with the right approach to enforce the right of self-identity.
Argentina
Argentina is one of the most
progressive when it comes to LGBTQ rights. The people of the country have
always advocated for minorities’ rights. In the year 2010,Argentina became the
first country in Latin America to legalize same sex-marriage[33].
As a result, more than 15,000 couples had been married in Argentina in the year
2010. The Gender identity law was passed in Argentina which made sex-change
surgery a legal right[34].
Transgender persons can opt forsex transition surgery without the fear of being
diagnosed with psychological abnormality[35].
Even before the law was passed recognizing same-sex marriage, there were many
judgments passed by the provincial courts in Argentina[36].
One of the famous cases in Argentina Freyre and Di Bello the
decision, in this case, was approved and it was overturned. The couple finally
managed to get married at the discretion of the governor in Tierra del Fuego
where same-sex marriage was allowed at that time[37].
The transgender persons are
increasingly gaining legislative protection around the globe. These laws are
still not successful when it comes to protecting them from the social stigma
which exists in society. The supporter of Human rights Transgender had reported
2,264 killings of transgender persons worldwide between January 1, 2008, to
September 30, 2016[38].
There is still a lot that needs to be done to protect the freedom and rights of
the transgender community around the globe.
3.4 critical analysis
A considerable measure of
confusion has really emerged from the judgment. Indeed, even as the omnipresent
media and civil society was commending the judgment, numerous transgender
people were pointing out its innate issues and inconsistencies. It can be stated
that the judgment is "confusing and confounding," conflates various
transgender personalities, for instance referring to all hijras as 'third
gender’, when in reality there exists differences between the two. It is also
observed that the judgment oscillates between broad and narrow interpretations
of the term transgender and between self-determination of identity and its
biological requirements. Justice Radhakrishnan’s wide definition of transgender
was further narrowed down by Justice Sikri’s section of the definition which
explicitly leaves out Lesbian, Gay and Bisexual (LGB) people from the ambit of
transgender. Justice Sikri’s definition clearly acts out in contradiction to
specific parts in the judgment, which states that LGB people also come under
the umbrella of gender variant people. Moving further to the nine important
directives given by the Court in the judgment, at some points, these orders
seemed to confuse „transgender? with hijra by repeatedly using the phrase
transgender/hijra, especially in the fourth and the fifth directive. This led
to the judgment being perceived as pertaining to just the recognition of hijras
as third gender, thus, eliminating the recognition of the umbrella term, which
includes other gender variants too. One of the biggest flaws in the judgment,
according to the author, is that the entire principle, upon which the judgment
of Koushal v. Naz was raised, collapsed along with the NALSA case. When we
focus on sexual orientation, one’s identity has no meaning if he can’t express
it. A statute/law that targets on the conduct, which is the very expression of
identity, thereby targets the identity itself. Therefore, when Sec. 377
prohibits homosexuals from engaging in same-sex intercourse, it doesn’t just
illegalize a set of acts – in prohibiting the most basic expression of one’s
sexuality, it criminalizes sexuality – and thereby, identity itself. Further,
the judgment is unclear and even contradictory about the requirement of medical
transition procedures for self-identification of gender. At first, Justice
Radhakrishnan based the judgment on Argentinean model of gender recognition
which does not involve any kind of medical procedure and yet, at other times,
he suggested psychological tests for self-identity of transsexual persons. Such
conflicting propensities imply that the elucidation and execution of the
judgment can be varied and irregular restricting its affirmative action.
Chapter
-4
Conclusion & Suggestions
It is distinctly clear from the above
observations that transgender individuals with different sexual orientation
face intolerance, discrimination and exclusion in the society. This isolation
varies from private reasons to the most common social incomprehension. While
judiciary has taken a significant step to remove the stigma attached to the
third gender, it is our turn to recognize the true implication of this judgment
and prioritize its enforcement. While throwing money at hijras to spurn them
away, we are not just insulting these individuals, but are relegating the very
basic principle of humanity; even curs are better treated by the love of
humanity. Such actions will only lead the transgender community to toil and
struggle in the same quagmire of indignity that they have been facing for
generations together. In this country where there is a galaxy of reasons to
grand reservations, the community which is synonymous to social backwardness is
seldom thought about. It is hence necessary to not only pen down laws, but also
bring them to action for the upbringing of the transgender community to the
basic rostrum of human dignity. Hence, the hypothesis stands proved.
The journey of transgender
people has always been a challenging one and has never been easy. They are
struggling and fighting to make their own way in this society. Although as
compared to earlier, there has been some improvements in the mindset of the
people in society but still there is a long distance to cover. Government is
also working towards promoting awareness about them and their rights through
the 2019 Act. However, there are a lot of loopholes present in the Act which
needs to be corrected to help the community thrive and feel protected. The
provisions given in the Act are not enough for the people and acts as a great source
of disappointment. The Transgender Persons (Protection of Rights) Rules 2020
has also not been helpful as it was only provided to justify the Act of 2019.
Since during the time of the Rules, the suggestions of the people were taken so
naturally, the community has expectations from the government yet the present
Rules serve as a great source of discontent yet again.
The struggle doesn’t stop here
as there are still a lot of changes which needs to be implemented in the Act.
It is hoped that the government will try its best to provide the community with
a society where they can feel safe and empowered. The most important thing for
the people along with the Act and lawfulness is to be acceptance and respect in
the society. For this, society needs to change its perspective and accept them
as normal human beings.
Suggestions
A comparative analysis of Indian
Transgender Person Act .2019 with Argentina, USA and Denmark legislation for
transgender indicates that there are various shortcomings in the Act and the
government needs to rework the entire legal framework for transgender rights.
Various provisions need to be added following the footsteps of the countries
that have already adopted a progressive approach towards transgenders. The
various recommendation which is required as suggestions to be kept in mind by the Indian government
are listed below –
1. Employment and Housing
There are several companies like
KPMG, Infosys and Accenture who introduced new policies to help the community
to move into a formal workplace. The new startup likes Perriferry and is also
helping to set up employment for the community. The Chief Operating Officer of
Perriferry had estimated that in India only 5% of the transgenders can get
employment[39]. The
appropriate solution is to provide a reservation for transgender in both
government and private corporations. If the transgender persons secure
financial stability, it will be the first step to their welfare.
Another problem faced by the
transgender is that they are discriminated by the landlords and singled out[40].
If this problem continues the majority of them will be forced to stay on the
streets.Aseparate provision prohibiting the landlords to discriminate against
transgenders is therefore, required.
2. Change in Educational Curriculum
As suggested by the Expert Committee
to the Ministry of Social Justice and Empowerment that, there should be a
compulsory education about gender identity and sexuality at schools[41].
There is a need for sensitization of the students and also make them aware of
the problems faced by the transgender.This will remove transphobia from the
root levels of the country. Thus, the government should recommend the inclusion
of gender identity education in both government and private schools.
3. Recognizing same-sex marriage
The consensual intercourse between
the same gender was decriminalized in 2018. There is no legal recognition of
same-sex marriage which leads to the discrimination of transgender couples at
various fronts such as inheritance of property, adoption and tax planning[42].
Thus, there is discrimination between heterosexual and homosexual couples with
respect to rights available to them.
4. Simple Administrative steps to change
gender in official documents
To change the gender in official
documents transgenders have to deal with a lot of harassment[43] .
The transgenders have to give a proof of sex reassignment surgery which also
violates their right of self-identification. A step by step procedure should be
declared by the government which is simple and free of red-tapism.
5. Enabling ways for transgender to live
according to their genders
Studies show that social stigma
regarding gender nonconformity affects the health and well-being of transgender
persons[44].
Social support and affirmation area constant support to the person. The choice
of wearing clothes, playing a certain type of game must be left to a
transgender person.
6. State subsidies for Sex- Reassignment
surgeries.
The cost to get sex reassignment
usually costs in lakhs especially in private hospitals[45].
Thus, most of the transgender live claustrophobic life and desire to convert
themselves to the gender they feel that they conform to. The state should
provide subsidies for sex reassignment surgeries which will also become a path
for transgenders to achieve self-actualization.
7. Increase in Punishment for Discrimination
against transgenders.
There is a need for a law that
imposes strict punishment for discrimination against transgenders. The
punishment should set an example for others. The transgender community in India
has suffered more than 100 years of discrimination thus, this is a crucial step
for the welfare of the community.
Apart from these recommendations,
there are a lot of steps that are required to be taken by the government like differential
treatment of transgenders in prisons and sensitization of police
personnel to deal with transgenders. The state’s responsibility is much higher
to recognize the rights and identity of transgenders. These recommendations may
not lead to an absolute recognition of rights and freedom, but these
recommendations are necessarily the first step to remove the social stigma
against trans - community.
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Article Information
TRANSGENDER RIGHTS- A CRITICAL STUDY
Authors: ABHINAY PRIYADARSHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/11
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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