The transgender community was always treated unequally in society and would lack rights compared to the other genders. As times changed, the outlook of the society towards them also changed, and they were looked upon differently, just as equal to any other individual. Also, the eminent NALSA judgement that guaranteed this community equal rights led to a series of legislation, the latest one being the Transgender (Protection of Rights) Act, 2019. The author strives to analyze this Act critically and further posit the lacunas in the Act and establish as in how the Act is contrary to the eminent judgement.
Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they are assigned at birth. From time immemorial, there is a kind of tendentious attitude of people towards transgender individuals. It is essential to understand that this is a natural and biological phenomenon, and there is absolutely no reason to lament for being born as a transgender person. But over a while, the ways that transgender people are talked about in popular culture, academia and science are constantly changing, particularly as an individual’s awareness, knowledge, and openness about transgender persons and their experience grow.
People’s perspective towards them has transformed to some extent, and the generation is prepared to accept them. The transgender community itself has bought this change of view by standing up for themselves. Furthermore, in 2014, the Supreme Court in NALSA v. Union of India ruled that transgender people should be recognized as a “third gender” and enjoy all fundamental rights just as their counterparts from binary genders.
The judgement also posited for specific benefits in education and employment. This judgement further paved the way for enormous legislations for the transgender community, which was at the centre stage for the act known as the Transgender (Protection of Rights) Act, 2019 (henceforth referred to as “the Act”). The judgement gave rise to hopes for the community’s advancement, but when the Act came into effect, it seemed to be contrary to the Supreme Court’s judgment.
On papers, the NALSA case seemed to be a tool in the hands of the transgender community for their advancement and progress. However, when the Act came into force, it appeared to be one step forward and two-step backwards for them. The author seeks to point out that the 2019 Act is out-rightly contradictory to the NALSA judgement. Author will substantiate this claim by comparing the judgement with several sections of the said Act, especially the gender identification certificate.
One must not and cannot be unmindful that irrespective of the Act is made with a laudable objective of achieving the welfare of the LGBTQ community, however, there are beaucoup fallacies and ambiguities in the same. In light of all these factors, we seek to examine the Transgender (Protection of Rights) Act, 2019.
Legislative Journey Of The Act
When one looks at the brief history of the rights of the transgender community, we come across a host of legislations that are worth pondering upon. The very first bill known as the Rights of Transgender Persons Bill, 2014, was in the view of granting basic rights to the transgender community. It was unanimously passed as a private member’s bill. It was known for the first private member’s bill to be passed after thirty-six years in any house because so far, there had been only sixteen private member bills that have passed the muster of parliament since independence.
This bill was then altered on the recommendations of the transgender community and sent to the Ministry of Law and Justice. It later came to be known as the Rights of Transgender Bill 2015. After going through a long way, the bill was discussed in Lok Sabha on 29th April, 2016 even so, it was still pending. On 2nd August 2016, the government tabled a new bill named Transgender Person (Protection of Rights) Bill, 2016, just after the reconstitution of Lok Sabha. This new bill was met with condemnation by the community, and thus it was referred to the standing committee.
After a brief study by the standing committee, the Lok Sabha tabled and passed a newer version of the bill with the twenty-seventh amendments act, it was known as Transgender Person (Protection of Rights) Bill, 2018. The bill was again met with criticism throughout India by the transgender community. It was being said that the Standing Committee’s recommendations were overlooked and not taken into consideration. With the dissolution of Lok Sabha, the still pending Rights of Transgender Persons Bill, 2014 and Transgender Person (Protection of Rights) Bill, 2018 were lapsed.
After the general elections, the Transgender (Protection of Rights) Bill, 2019, was reintroduced. Prior to that, it was approved and passed by a voice vote in the Lok Sabha on 5th August 2019. It was passed in the Rajya Sabha on 26th November 2019 and received presidential assent on 5th December 2019. It then came to be known as the Transgender (Protection of Rights) Act, 2019. The Act has been in effect since 10th January 2020 after notification of the same in the Gazette by the Ministry of Social Justice and Empowerment.
Transgender (Protection Of Rights) Act, 2019
In the view of the 2014 judgement, the parliament passed a series of bills inscribing the rights of transgender. The recent one being the Transgender (Protection of Rights) Act, 2019. This Act is met with immense criticism as it rescinds theNALSA judgment. There are various provisions from Chapter II to Chapter VIII in this Act such as prohibition against discrimination, recognition of identity of transgender persons, obligation of establishments and other persons, education, social security and health of transgender people, welfare measures by government, setting up National Council for transgender persons and offences and penalties respectively.
The provisions seem to be very appealing but fail to grant complete freedom to this community and keep them bound within the limits of the government.
Chapter II of the Act prohibits discrimination against transgender but is unclear on what remedies are available to a transgender person who suffers discrimination.
In the NALSA v. Union of India, the Apex Court laid down that the transgender people were to be treated as the “third gender” and their rights safeguarded under the Indian Constitution. It also recognized that the self-identification of one’s gender is sufficient to provide rights to individuals. The Apex Court also upheld that the gender identity did not refer to biological characteristics. Instead, it referred to it as “an innate perception of one’s gender,” i.e., the gender that the transgender individual identifies with.
Chapter III of the Act mentions the recognition of transgender identity, and it mandates an individual to apply for a “transgender certificate” to recognize one’s transgender status legally. The district magistrate will grant this certificate. If the District Magistrate denies the certificate to the transgender individual, the grounds of discrimination remains unclear. Also, the Act remains silent on the procedure in case the District Magistrate refuses to grant the certificate.
Moreover, if the individual undergoes surgery to change their gender to male or female, they need a revised certificate issued by the district magistrate after checking the correctness of the certificate. By including medical proofs and district administrators, the rule not only aggravates humiliation but also goes against the right of “self-declaration” as recognized under the NALSA judgement.
Chapter V of the Act recognizes the obligation of establishments wherein section 12(3) states that if any parent or member of the family is unable to take care of a transgender person, the competent court shall by an order direct such person to be placed in the rehabilitation center. This can be termed as the involuntary detention of adults as the bill is unclear on the individual’s consent.
Further, Chapter VIII of the Act avers that abusing transgender persons as a punishable offence with a jail term from six months to two years. But on further comparing, if the same crime is committed against a cisgender woman, her rapist, once convicted, will be sentenced to a minimum of seven years of jail, which can also be extended to a life term. The provision of lesser punishment underpins the unequal status of the transgender community and also seems to be discriminatory.
The NALSA judgment had also directed the governments to increase the presence of transgender persons in educational institutions and public opportunities. However, the Act fails to put light upon these directions. The Act also appears to be silent on civil rights related to marriage, property, adoption, etc.
The Act is supposed to be a sequel for the noteworthy NALSA judgement, mandating that the government take effective steps for the community’s welfare. Still, it has left more questions unresolved than the concerns it aims to address. The Act seeks to protect the rights of the transgender community but falls short in taking into account the basic rights, bodily autonomy and dignity of the transgender community. It goes against the very crux of NALSA judgement. The response of the community also seems to be negative, and they claim this Act as “Murder of Rights” instead of granting rights.
The author suggests that the provisions of the Act need to be reconsidered and revised. In order to safeguard the interest of the community, it is vital to guarantee them equal civil, social, and economic rights as well as protection against discrimination and abuse. Also, it is necessary to consider the transgender community before formalizing the rules and give them a considerable amount of time to voice their opinions and offer suggestions. It is essential to provide equal constitutional rights to the transgender community to empower them, reduce social stigmas, and improve their socioeconomic position.