By Forum Tailor and Khushi Malhotra, 5th Year law Student, FOL, The Maharaja Sayajirao University of Baroda
The word Transgender that is believed to have emerged in the present times is not a new concept but has been a part of our society from time immemorial. The transgender community had a strong historical presence in the Indian mythology and religious texts too. However, in present times when it comes to providing them a discrimination free society, we have miserably failed. The judgement in case of National Legal Services Authority v. Union of India was seen as first effort towards the culmination of the transgender community’s long drawn efforts to get legal sanction for its rights. Following which, The Transgender Persons (Protection) Act, 2019 was passed for protection of transgender rights.
It is pertinent to note that, the International Community has been actively making progress in providing rights and protection to the transgender community, however, the Indian jurisprudence has lacked in even recognizing them as a different individual and respect their identity. The Transgender Persons (Protection) Act, 2019 that is believed to have been passed for the welfare and protection of rights of trans-persons has received serious criticism from the community as it contradicts the idea laid down in the NALSA judgement. To cover up these flaws new draft rules have been formulated. However, the draft so formulated suffers from serious conceptual errors.
REDECORATING A FLAWED LEGISLATION
The very first flaw that the Act showcases is the definition of transgender itself. The Act nor the draft rules provide a clear cut demarcation between the intersex persons and transgender persons and ignorantly includes both the terms under the same head. Upon a glance it would seem that both intersex persons and trans-persons belong to the same category, however, that is not the case. In general, transgender is a person born with body and genes matching that of a typical male or female, however they know their gender identity to be different. But on the other hand, intersex persons are often those whose bodies fall between “male” and “female”. Intersex conditions are not limited to one specific type but have various types. While it’s possible to be both transgender and intersex, most transgender people aren’t intersex, and most intersex people aren’t transgender. Based on this explanation, it is evident that both the terms can’t be used interchangeably and keeping them under the same head would create misunderstandings and harm their rights.
Secondly, both the Act and draft rules provide for a long drawn process for the identification of a person’s gender. The procedure that is mandated for legal gender recognition is deemed to be faulty. While the Act confers the right to self-perceived gender identity, it mandates a certificate from the District Magistrate declaring the holder to be transgender.In addition to this, such a certificate holder is required to apply for “Change in gender certificate” to the District Magistrate, along with the proof of surgery which is to be issued by the Medical Superintendent or Chief Medical Officer of the hospital in case such a person wishes to change gender either as a male or a female. It must be noted that NALSA judgement had upheld the transgender person’s right to decide their self- identified gender and had further said that any insistence on SRS was illegal and immoral. Henceforth, the above provisions with respect to identity registration requirement defy the NALSA judgement by giving arbitrary powers to the District Magistrate thereby adding a lot of bureaucratic layers and redtapeism.
Furthermore, the law not only violates court rulings, but is also contrary to international standards for legal gender recognition. Several United Nations agencies, the World Professional Association for Transgender Health and the World Medical Association, all necessitate that the legal and medical processes should be conducted separately.On similar grounds the reports have urged that the concerned governments undertake all requisite legislative and administrative measures to ensure that trans people are protected under their self-identified gender identities with no medical requirements or discrimination on any grounds.
The new draft rules further states that the applicant applying for issue of certificate of gender identity, has to be resident of the area under the jurisdiction of the district magistrate for a continuous period of 12 months as on the date of the application. Since the majority population belonging to the transgender community suffer from unemployment, homelessness and are shunned by their own family at a very young age. Therefore, such a requirement is onerous and increases the burden on the people of transgender community to apply for the certificate.
In addition to this the draft rules talk about communication of rejectionof the application but does not state on what basis shall the application for certificate of identity shall stand to be rejected by the District Magistrate. Inclusion of right to appeal within 60 days of such rejection of applicationmakes the whole process of just getting a certificate of identity more exhaustive and tedious for the trans people. The whole procedure from applying to rejection to appealing such rejection does not make their current situation any easier .Thus, both the Act and the new rules provide for an exhaustive procedure that has to be followed in order for them to be recognised as transgender.
The Act further talks about non-discrimination in employment and educational institutions but at the same time is silent on the issue of reservations in admissions to various educational institutions and public appointments. Even the new draft rules which broadly speak about welfare measures, non-discrimination and equal employment opportunities fail to talk about any kind of reservations for the transgender persons in the educational and employment sectors.
Moreover, the section pertaining to right of residence, states that transgender people shall have the right to reside with their birth family and in case if the immediate family is unable to take care for a transgender person, the competent court shall by an order direct such person to be placed in a rehabilitation centre. This in a way denies them the right to join other transgender communities or ‘gharana’ structure prevalent within the community and thus violates Article 21of the constitution.
Furthermore, the National Council for Transgender Persons which was established by the Central Government on Aug 21, 2020 pursuant to S.16 of the Act has also been criticised for lack of grass root level representation of the transgender community within the Council.
The absence of strict penalty in cases where the transgender persons are discriminated or when their rights are being violated also requires the attention of lawmakers. By clubbing various forms of violence against transgender persons- from emotional to sexual abuse under one head, punishable with imprisonment up to six months to two yearsclearly implies that the State believes that sexual violence against transgender persons is of much lesser gravity when compared to the provisions made for the protection of cisgender females against any form of abuse. In order to ensure effective protection of transgender community it is necessary that stringent punishments be laid down and further it is also necessary to amend and broaden the scope of other laws to include trans-people.
Lastly, the Act and new draft rules both fail to recognise civil rights of transgender people such as marriage, partnership, divorce and adoption which plays a very vital role in the life of a human being and transgenders should not be deprived of their basic civil rights.
CONCLUSION: WAY FORWARD
Given the current global pandemic which has brought the whole world to a standstill has left this socially marginalized community at great risk of hunger and poverty since most of them make their ends meet by begging and sex work. Henceforth, the restriction on the movement during the unprecedented COVID-19 lockdown has made their situation exacerbated with lack of food supplies, medicine, fund, safety and mental health concern and it is not long before the healthcare concerns add to their existing miseries. Such a prolonged situation will act as a silent killer by aggravating their socio-economic status and it is high time that a precise policy is formulated in the interest of the community and people understand how important it is that trans people deserve all the human rights that a binary gender has been enjoying since the beginning of the human civilization.
In order to safeguard the interests of the community, the Act and the rules should be scrutinised by a select committee for further review wherein the transgender community is equally represented to put forward their views and concerns. At the same time the consultation process must become more comprehensive thereby providing adequate time period to discuss the rules. It is very crucial that the aforementioned critical shortcomings of the Act are addressed by the government in order to ensure that a traditionally downtrodden community gets justice and enjoy equality in status and opportunity.
India transgender gurus in landmark Hindu procession, BBC NEWS (Sep.8,2020,10:26AM), https://www.bbc.com/news/world-asia-india-46780219
National Legal Services Authority v. Union of India, AIR 2014 SC 1863
The Transgender Persons (Protection) Act, 2019 S.4
The Transgender Persons (Protection) Act, 2019 S.6
The Transgender Persons (Protection) Act, 2019 S.7
National Legal Services Authority v. Union of India, AIR 2014 SC 1863
Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating, Human Rights Watch (Sep.8,2020,11:30 AM), https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating
The Transgender Persons (Protection of Rights) Rules, 2020 R.4(2)
The Transgender Persons (Protection of Rights) Rules, 2020 R.8
 The Transgender Persons (Protection of Rights) Rules, 2020 R.9
The Transgender Persons (Protection) Act, 2019 S.9
The Transgender Persons (Protection) Act, 2019 S.13
 The Transgender Persons (Protection) Act, 2019 S.12
Indian Constitution, 1950 Art. 21
 The Transgender Persons (Protection) Act, 2019 S.18