–by Ms. Achintaya Soni (Batch of 2023, UILS, Panjab University, Chandigarh)
You Know a Gay, Lesbian, Bisexual, Transgender- People are People. -Judith Light
Transgender persons have been treated as a part of civilisation since the ancient period. They have been perceived as a ‘third gender’ or persons who do not fall within the binary viz. man or woman. Since time immemorial, their community has been recognised as Hijras/Kinners, Shiv- Shaktis, Jogappas, Jogtas, Aradhis etc. In India, they are considered holy and have also played significant roles in epics like “Mahabharta” and “Ramayana.” Hijras/ Transgender people conventionally follow a tradition of giving blessings on occasions such as wedding or childbirth by dancing, clapping and singing. It is believed that they got this boon from Lord Rama when he returned from 14 years of exile. Therefore, we witness their tradition of giving blessings on occasions like weddings or childbirth by dancing, clapping and singing.
The story of their non-recognition and exclusion began in the British Era. Like all the other brutal British laws in India, the sexual activities against the order of nature were criminalised under section 377 of the Indian Penal Code (IPC), 1860. This adversely affected those who differed in sexual orientation and gender identity i.e. the LGBTQIA+ community (Lesbian, Gay, Bisexual and Transgender), as over the years the general offence of sodomy became a specific offence of homosexual sodomy. The objective of Section 377 remained unclear and unsubstantiated for a number of years to follow. As a consequence of which, the LGBTQIA+, including the transgender community has faced a lot of trauma and agony and have been restricted in accessing even the most basic “Fundamental” rights including Right to Education, Freedom of Expression, and Right to Equality, Right to Personal Liberty, Right against exploitation, and Right to Dignity etc.
PROBLEMS FACED BY TRANSGENDER
The transgender community faces a wide variety of problems including discrimination, exploitation and struggle for acceptance within the usual fabric of society. They are neglected in almost all spheres of life. They even lack the basic facilities of sanitation and hygiene. They come to such unfortunate crossroads in life where they are pushed to the outskirts of human civilisation to live a life which they begin to hate. Neglected by their own in familial matters such as adoption and inheritance, they are denied even basic human dignity and subjected to humiliation, threats and abuse by other members of society. There are health disparities caused by factors like financial barriers (lack of insurance, lack of income), discrimination, lack of cultural competence by health care providers, health systems barriers (inappropriate electronic records, forms, lab references, clinic facilities) and socioeconomic barriers (transportation, housing, mental health). Often, many of them also dropout of schools due to the harassment and bullying they face. They suffer from feelings of gender dysphoria, mental, physical and social exclusion. All this leads to depression, stress and anxiety among them. All this leads to depression, stress and anxiety among them. Starting to lack confidence and self-esteem, they begin to isolate themselves. No inclusion and assimilation render them unemployed and they have to resort to jobs which bring a lot of judgment, like begging and in worse cases, prostitution. Very little has been done to empower them and alleviate their position in society and despite various judgments and deliberations upon the issues of the community, they still stand to face discrimination and exploitation at the hands of others.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
It was only in 1991, that an NGO named ‘AIDS Bhedbhav Virodhi Andolan’ instituted a movement to repeal Section 377 of IPC. In 2001, the movement gained an impetus, when ‘Naz Foundation’ filed a PIL at Delhi High Court. As a consequence, the Supreme Court read down Section 377 holding that the sections violated Articles 14, 15 and 16 of the Indian Constitution. However, this was overruled in the case of Souresh Kumar Koushal v. Naz Foundation.
It all started in 2013, when the government formed a committee to address the problems faced by the transgender population. Then the Supreme Court in the landmark judgment of NALSA v. Union of India, declared the transgender as the third gender and asseverated equal access and guarantee of Fundamental Rights for them. The court declared illegal the insisting of Sex Reassignment Surgery (SRS) as a condition to change one’s gender. The court also the directed both Centre and State Governments to provide medical care to transgender people in hospitals and also construct separate public toilet facilities for them. They were also directed to incorporate provision for providing reservation to trans- community in educational institutions and jobs. This judgment became the origin for the Transgender Persons (Protection of Rights) Act, 2019.
In 2014, a private member bill, titled “The Transgender Persons” was passed in Rajya Sabha by Tiruchi Siva (Member of Parliament from Tamil Nadu). Having been passed by Rajya Sabha, it failed to pass in Lok Sabha. In 2016, a bill was introduced by the Government in Lok Sabha and was referred to a standing committee. The standing committee gave recommendations, but the bill lapsed. Then in 2018, the Transgender Persons (Protection of Rights) Bill was passed and in 2019 became The Transgender Persons (Protection of Rights) Act, 2019. The Act was a culmination of the directions of the Supreme Court in NALSA v. Union of India and it speak volumes about ascertaining the rights of the transgender population. Nevertheless, this Act is zealously challenged upon by various personalities and organisations as being ‘regressive’ and ‘passed in haste’ by the Parliament.
2. Key Highlights of the Act
The Act identifies transgender persons as those whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. Intersex variations is defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.
It prohibits discrimination against them including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
The Act provides for recognition of identity of transgender person. This can be done by making an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
The Act recognizes the following offences against transgender persons: forced or bonded labour (excluding compulsory government service for public purposes); denial of use of public places; removal from household, and village; physical, sexual, verbal, emotional or economic abuse. The punishment for these offences is imprisonment varying between six months and two years, and a fine.
The Act provides for a National Council for Transgender Persons which will work to advise, monitor, evaluate, and review the policies and programmes for transgender persons.
But the story does not end here. People started coming on streets to protest against the Act. They dissented against the Government’s action of passing the law in haste and also that the very Act was barbaric and regressive in nature.
“The Rajya Sabha aims on erasing our identities and our rights as individuals by passing the Murder of Rights bill, that’s what I call it. The only protection here is about themselves. Putting intersex and trans identities in one box is not only barbaric but also erases both identities synchronously. It allows for more abuse and imposition of what a cisgender person believes on intersex/trans bodies,” says Ali, a student from Bangaluru.
3. Critical Analysis
The Act, with the primary object of uplifting the trans-community from various kinds of discrimination and harassment was enacted without any consultation the trans-community.
Though most transgender persons do not live with their biological family, section 2(c) of the Act defines ‘family’ as it is defined under already existing laws and without including within its definition the ‘taken family’ of the transgender person.
Section 6 of the Act provides for the recognition of identity of a transgender person by submitting an application to the District Magistrate. Upon the submission of an application, the district magistrate issues a certificate of identity as a transgender person. It is to note that even though the NALSA judgment clearly states that the self- determination of gender is an integral part of personal autonomy, still the Act requires a transgender to obtain a certificate of identity as a transgender from the District Magistrate. Also, the Act does not mention a clear definition or procedure regarding how the District Magistrate would examine the person or documents and is also devoid of any room for redress if the District Magistrate refuses the application.
Section 6 also provides that in case of a minor child, the application shall be submitted by the parent or guardian. The fact that a trans-child may have been ousted from their family or may have run off themselves has been totally overlooked. One wonders, as to who would submit the application in case their parents or guardian refuses to even recognise the child in the fear of social stigma. The provision also stands contrary to the spirit of privacy, self- identity and personal integrity of transgender persons which were guaranteed as Fundamental Rights in NALSA. The judgement concretely states that self- determination of gender is an integral part of personal autonomy and falls within the ambit of personal liberty under the Constitution. In the light of the aforementioned, one wonders if it would be prudent to allow a parent/ guardian to determine the gender identity of the child.
Section 7 provides that to obtain a revised certificate of changed sex as either male or female, the transgender person has to undergo a Sex Reassignment Surgery (SRS) and has to submit yet another application to the District Magistrate with a certificate issued by Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery. It further states that the District Magistrate on being satisfied with the correctness of such a certificate may issue a certificate indicating change in gender. Even though, the NALSA judgment clearly declared that the insistence of SRS to change one’s gender as illegal. The Act, nevertheless, requires SRS as a necessary measure to obtain a revised certificate.
The Act does declare sexual abuse against a transgender person to be a punishable offence. Firstly, the Act fails to define what constitutes ‘sexual abuse’. Secondly, in contrast to the offence of rape of a woman where the convict is sentenced to a minimum of ten years of imprisonment, which may even extend to life imprisonment, the rape of a transgender is punishable only with a minimum sentence of six months, which may extend to a maximum of two years.
The Act is silent upon the provision of reservation in educational institutions and jobs, which was one of the primary directions by the Court in NALSA.
The Act is also silent upon various subjects such as marriage, adoption, inheritance, property, pension etc. These rights were recognised as significant civil rights in NALSA.
The law is and should be for the people, by the people and of the people. It should be passed after taking into consideration the representations of those sections and communities for which the law is to be passed. When the ‘law making’ lacks representation of the targeted community, it has a very high probability of having lacunas. The very community for which it is to be passed is proficient and adept in the matter of apprehending the various situations and problems in every clause. A law passed after consultation with the targeted community has a higher probability of coming out stainless and nonpareil. But, it has not been so in the present case for the trans-community. Such incongruities cause one to doubt how important the protection of transgender people is to the law. Therefore, even if certain avenues of rights have been thrown open to transgender persons, there still stands no such solid foundation for these affirmed rights and this community continues to face humiliation and exploitation, adding a new wrinkle of pseudo recognition to the transgender community.
[Disclaimer- The views expressed in the article are personal views of the author]
Ms. Achintaya Soni, UILS, Panjab University
The author may be reached at email@example.com. [Edited by Mr. Vivek Sharma(Managing Editor), Ms. Sawani Chothe (Content Administrator), Mr. Rajmohan CV(Junior Editor), Mr. Vivek Narayan(Senior Editor)]