Written by Vanya Francis
First Year, Hidayatullah National Law University, Raipur
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The life of Transgenders in India is full of fear of reprisal and persecution. They face systemic discrimination and crimes are inflicted upon them just because they feel as though they are trapped in a wrong body. These people are born with reproductive organs just as all other humans are, yet they are gendered by society according to their existing gender roles which differs from their own perception of their gender identity.
On 6th September 2018, the Apex court, in Navtej Singh Johar & Ors. v. Union of India, asserted the unconstitutionality of Section 377 of IPC and also reiterated the fundamental right to privacy of the LGBT community as held in Justice K. S. Puttaswamy (Retd.) vs Union of India. It gave the people of the LGBT community a ray of hope to feel accepted by the society, or at least by the law. To take a step forward, the Government of India, in July 2019, introduced The Transgender Persons (Protection of Rights) Act, 2019. This much-debated Act was a revised bill which was earlier introduced and lapsed in 2014 and in 2016 in the Parliament.
The intent with which the Government brought about this Act was simply to empower and protect the transgender community from the atrocities and sheer discrimination they face in their day to day lives. They wanted to prevent the community from further alienation and ostracism and assert the rights that they deserve. The current Act was brought in the lines of the judgement in the National Legal Services Authority v. Union of India (NALSA judgement), wherein the Supreme Court directed the central and state authorities to grant legal recognition to the third gender, provide the community with various social and welfare schemes and to take steps to create public awareness and allow them to regain respect in the society. However, rather than supporting and complementing the NALSA judgement, this Act is rather seen as an intent to override the same. Ergo, it has only received backlash from the LGBT community, several NGOs, various activists and politicians so much so that the transgender community labelled the day of the passing of this Act in Lok Sabha as “Gender Justice Murder Day”. The Act has also been passed in the Rajya Sabha even though several opposition members heavily criticised it and asked for its scrutiny by the Select Committee, the motion was defeated and it was passed without any amendments. It also received the assent of the President on 5th December 2019. This article highlights how The Transgender Persons (Protection of Rights) Act, 2019 has hampered the progress of the society in accepting the reality of an entire community in the lines of both morality and legality.
Definition of ‘Transgender’
The Act defines ‘transgender’ under Section 2(k) as a person whose gender does not match the gender assigned to that person at birth and includes transman and transwoman, irrespective of whether that person has gone under sex reassignment surgery or hormone therapy or laser therapy, etc. The definition further goes on to include persons with an intersex variation, genderqueer and also the person having socio-cultural identities.
This definition is highly unintelligible and is certainly rejected by the transgender community as it has expanded the meaning of ‘transgender’ and made it an umbrella term.
This definition has several loopholes as it does not define genderqueer nor does it acknowledge the difference between transgender and intersex people. Intersex has to do with the sex assigned at birth, i.e., it is about biological characteristics. Whereas, transgender people are the ones who feel trapped in the wrong body and it basically has to do with gender identity, i.e., how a person feels from the inside.
Moreover, by blurring the lines between transgender and intersex, the Government has reflected how ignorant and inconsiderate they are to the needs and the realities of the two communities as one cannot simply be stated as the subcategory of the other.
Pseudo Protection of Equal Treatment
Secondly, the entire Section 3 prohibits discrimination against the community and denies unfair treatment in educational institutions, employment services, medical services, access to goods, accommodation, services, benefits available to the public at large, and various other rights. However, the Act fails to mention any civil or criminal remedy if and when these mentioned rights are violated. The Act defeats the purpose of its existence when the Indian Constitution already provides for all these rights and benefits under Articles 14, 15, 16, and 19. Thus, the question of what new change this Act has to offer is debatable.
Certificate of ‘Gender Identity’
Firstly, Section 5 of the Act states that a person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person. This Section seems highly inconsistent with what the Supreme Court had stated in the NALSA verdict, i.e., a transgender person has a right to self-identification of their gender as a male, female or a third gender. The Court also held that no trans person should be subjected to a medical examination or biological test which would invade their right to privacy.
The transgender community firmly believes that self-determination of one’s gender is a very private and personal matter and it must not be in the hands of the public officials.
Even though the current Act does not provide for ‘screening committees’ like the one suggested in the 2016 Bill , it, however, gives the authority to the District Magistrate to put a stamp on someone as a transgender so that the rights under Section 3 of the Act can be conferred upon them.
This sheer humiliation and dehumanization of any living being are not acceptable to the trans community. They have refused to accept the idea to allow someone else to determine the proof of their gender. Moreover, this section provides that in case of a minor child, the application shall be made by the parents or the guardian of the child. But the entire country is well aware of the taboos associated with anyone identifying as a trans person. This section gives the parents/guardians the authority to decide what they deem fit for their child, irrespective of how the minor feels about his/her gender identity. The section also talks about the certificate being given only if they possess certain documents. The Act, furthermore, is also ambiguous about the nature of documents to be submitted to establish someone’s gender identity.
Secondly, Section 7 states that after being issued a certificate by the District Magistrate, if a transgender undergoes a sex reassignment surgery, he/she may apply for a ‘revised certificate only after getting a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution. It also requires the District Magistrate to be the judge of the ‘correctness’ of the certificate given by the medical officer. So even if the Act does not provide for a ‘screening committee’, it certainly has laid down many whimsical filters to allow a transgender to acquire a proof of their identity. The Act is also silent on assuring confidentiality about such sensitive information which should not be disclosed to anyone or made public. Further, there is no provision for the procedure of appealing or reapplying following a negative decision on the application by the District Magistrate due to the absence of certain documents or due to the arbitrary nature of the decisions involved in this process.
Furthermore, Section 12(1) of the Act states that a transgender minor cannot be separated from the parents or immediate family on the ground of being a transgender, except by an order of the court. Such a clause comes across as arbitrary because considering the biases and taboos existing in Indian society, people from such communities are more often than not the most vulnerable in their homes. There is no proof of how they are treated within the four walls of their house. In fact, many children leave their parental homes at a very young age and seek refuge under many NGOs for their rehabilitation and protection or under hijra gharanas.
Abuse and Punishment
Section 18(d) of the Act, in a nutshell, lays down that any abuse- physical, sexual, verbal, emotional or economical- suffered by any trans person would lead to an imprisonment of a minimum of six months that can be extended to two years along with a fine. The community strongly believes that this clause is purely discriminatory. Any assault committed with the intent to outrage the modesty of a “woman” leads to a minimum of 2 years of rigorous imprisonment and in case of rape, it is a minimum of 7 years of rigorous imprisonment which can be extended up to life imprisonment, as per the Indian Penal Code, 1860 (IPC). The IPC in itself seems discriminatory as it is silent on the provisions to protect any act of sexual violence against transgenders. At a time when the LGBT community is coming out with a very powerful voice, the law still does not acknowledge the existence of any atrocity inflicted upon them. It, therefore, becomes very difficult for the trans community to perceive themselves as equal before the law in the ambit of IPC or this Act.
In this Act, neither has the Government rightly defined the term ‘sexual abuse’ and its ingredients nor has it treated sexual violence against a trans person at par with the one committed against a woman. Hence, it violates their fundamental right to be treated equally before the law and seek equal protection before the same. Moreover, it seems that the Government has not thought through the aspects of abuse with care, leaving it to the discretion of the Judiciary to figure it out for the community. This negligence or indifference is like adding insult to the injury of the transgender community and raising a question on the dignity and value of their lives in the eyes of law.
As much as this Act intends to work for the betterment of the trans people, it has failed to cater to the essence of the spirit of the NALSA judgement. There are many lacunas which the community demands to be acknowledged by the Government. The Supreme court has held that third gender persons must be recognized as ‘socially and educationally backward class of citizens’ because of a history of discrimination and segregation. Yet, this Act fails to include any provision for reservation in the educational and employment sector. This Act also fails to address what remedy can a person avail if he/she is forced to identify as a transgender. Although the Act acknowledges the socio-cultural identities such as hijra, Kinner, aravani and jogta, it does not provide for any protection for the existence of the Kinner culture, hijra culture, Badhai system or the guru-chela system which is prevalent within the community. Hate speech and derogatory usage of certain terms is another major issue which this Act doesn’t deal with.
There are more than 4.9 lakhs people in India who identify themselves as hijra . Yet the entire transgender community has been marginalized and treated with utmost subjugation for several decades.
They weren’t treated as equal citizens in their own nation. But times have changed and India is also striving to walk on the path of progression in social and legal terms. However, with the promulgation of this Act, it is high time that the issue of transgender rights is dealt with dignity, sensitivity and compassion as per the reality of their lives. Thus, Justice Indu Malhotra has rightly remarked in the case of Navtej Singh Johar & Ors. v. Union of India, that “History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries.” This regressive law should certainly be scrutinized and amended and handled with more sensitivity than before.
 Krupa Joseph, The Difference Between Being a Transgender, a Cross- Dresser and Being Intersex, Gaysi (June 29, 2020, 18:08 PM), http://gaysifamily.com/2018/03/20/the-difference-between-being-transgender-a-cross-dresser-and-being-intersex/.  Navtej Singh Johar & Ors. vs. Union of India, AIR 2018 SC 4321.  Puttaswamy vs Union of India, (2017) 10 SCC 1.  National Legal Services Authority v. Union of India, AIR 2014 SC 1863.  Fatima Khan, Murder of gender justice’ — activists urge President Kovind not to sign transgender bill, The Print (June 29, 2020, 18:30 PM), https://theprint.in/india/murder-of-gender-justice-activists-urge-president-kovind-not-to-sign-transgender-bill/327360/.  The Transgender Persons (Protection of Rights) Act, 2019, S 2(k).  Supra 1.  The Transgender Persons (Protection of Rights) Act, 2019, S 3.  The Transgender Persons (Protection of Rights) Act,2019, S 5 para 1.  Supra 4.  The Transgender Persons (Protection of Rights) Bill, 2016, S 6(1).  The Transgender Persons (Protection of Rights) Act,2019, S 5 para 2.  The Transgender Persons (Protection of Rights) Act,2019, S 7(1).  The Transgender Persons (Protection of Rights) Act,2019, S 7(2).  The Transgender Persons (Protection of Rights) Act,2019, S 12(1).  Domestic Violence and the LGBTQ Community, National Coalition Against Domestic Violence (June 29, 2020, 20:43), https://ncadv.org/blog/posts/domestic-violence-and-the-lgbtq-community.  The Transgender Persons (Protection of Rights) Act,2019, S 18(d).  Indian Penal Code, 1860, S 354.  Indian Penal Code, 1860, S 376(1).  INDIA CONST. art 14.  National Legal Services Authority v. Union of India, AIR 2014 SC 1863.  Ina Goel, India’s Third Gender Rises Again, Sapiens (June 29, 2020, 19:27), https://rgnul.ac.in/PDF/f7ff0636-9075-47f2-8e17-a5ba7be7a3cf.pdf.  Ushinor Majumdar, 'History Owes An Apology': Justice Indu Malhotra On Section 377, Outlook (June 29, 2020, 19:40), https://www.outlookindia.com/website/story/history-owes-an-apology-justice-indu-malhotra-on-section-377/316160.
Krupa Joseph, The Difference Between Being a Transgender, a Cross- Dresser and Being Intersex, Gaysi (June 29, 2020, 18:08 PM), http://gaysifamily.com/2018/03/20/the-difference-between-being-transgender-a-cross-dresser-and-being-intersex/.
Navtej Singh Johar & Ors. vs. Union of India, AIR 2018 SC 4321.
Puttaswamy vs Union of India, (2017) 10 SCC 1.
National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
Fatima Khan, Murder of gender justice’ — activists urge President Kovind not to sign transgender bill, The Print (June 29, 2020, 18:30 PM), https://theprint.in/india/murder-of-gender-justice-activists-urge-president-kovind-not-to-sign-transgender-bill/327360/.
The Transgender Persons (Protection of Rights) Act, 2019, S 2(k).
The Transgender Persons (Protection of Rights) Act, 2019, S 3.
The Transgender Persons (Protection of Rights) Act,2019, S 5 para 1.
The Transgender Persons (Protection of Rights) Bill, 2016, S 6(1).
The Transgender Persons (Protection of Rights) Act,2019, S 7(1).
The Transgender Persons (Protection of Rights) Act,2019, S 7(2).
The Transgender Persons (Protection of Rights) Act,2019, S 12(1).
Domestic Violence and the LGBTQ Community, National Coalition Against Domestic Violence (June 29, 2020, 20:43), https://ncadv.org/blog/posts/domestic-violence-and-the-lgbtq-community
The Transgender Persons (Protection of Rights) Act,2019, S 18(d).
Indian Penal Code, 1860, S 354.
Indian Penal Code, 1860, S 376(1).
INDIA CONST. art 14.
Ina Goel, India’s Third Gender Rises Again, Sapiens (June 29, 2020, 19:27), https://rgnul.ac.in/PDF/f7ff0636-9075-47f2-8e17-a5ba7be7a3cf.pdf.
Ushinor Majumdar, 'History Owes An Apology': Justice Indu Malhotra On Section 377, Outlook (June 29, 2020, 19:40), https://www.outlookindia.com/website/story/history-owes-an-apology-justice-indu-malhotra-on-section-377/316160.