CRITICAL ANALYSIS OF THE TRANSGENDER PERSONS ACT, 2019
Our Parliament had made into law the Transgender Persons (Protection of Rights) Bill, 2019, which had been formulated for the welfare of transgender persons. The Bill was passed in the Lok Sabha on August 5, 2019, a month after its introduction in the House, and the Rajya Sabha cleared it on November 26, with a last-minute move to refer it to a Select Committee being turned down in a voice vote. The community had organised protests across the country, urging changes to the Bill, claiming that in the form in which the Central government had conceived it, it showed a poor perception of gender and sexual identity.
Activists had issues right from the beginning, starting with the name of the Bill. The word ‘Transgender’ was constrictive, they argued, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. Charging that the Bill had serious imperfections, because of this basic lack of comprehension about gender, some activists also wrote an alternative wish Bill, outlining their requests. The Bill was meant to be a ramification of the directions of the Supreme Court of India in the National Legal Services Authority (NALSA) vs. Union of India case judgment, mandating the Central and State governments to ensure legal recognition of all transgender persons and proactive measures to be instituted for their well-being. This article critically analyses the Transgender Persons Act, 2019.
A transgender person is defined a person whose gender identity differs from the sex the person had or was identified as having at birth.
Transgenders have a strong historical background in India as evident from the Vedic and puranic literature like Ramayana and Mahabharata and comprise of Hijras, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. Transgenders have existed in India since time immemorial.
Indian census has never recognized the third gender, i.e., transgender while collecting census data for years. However, in the Census of 2011, data of transgender were collected in the category of “Others” under Gender with details related to their employment, literacy, and caste. The census revealed the total population of transgender to be around 4.88 lakh. The data have been primarily linked to the male’s section as they are usually counted as men, but on request, they may be counted as women. Due to this, it is impossible to comment on the actual transgender population, though the census has provided an approximate estimate. The 2011 census also reported 55,000 children as transgender-identified by their parents.
The transgender community has been subject to mental harassment and cruelty throughout the ages. Social stigma, discrimination, boycott from the society and family, absence of supportive family, abusive environment, disowning from families and parents, no medium for education, depression amongst the transgender, no housing facilities, harassment by police are of the many problems they face.
Provisions of the Constitution stipulates under Article 14 of the Indian Constitution the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Additionally, Articles 15 and 16 of the Constitution also prohibit discrimination against any citizen on certain enumerated grounds including the ground of sex. These Articles prohibit all forms of gender bias and gender-based discrimination.
Despite the various international law provisions, India is still facing the problem of discrimination, violence and deprived conditions of transgender As per Art 6 of the UDHR Every human being has the inherent right to life. Law shall protect this right. No one shall be arbitrarily be deprived of his life. Even after such protection, which is fundamental in nature, transgender face discrimination and indirect violence in society and are unable to compete at par with others.
History of Legislations Against Transgenders
The Criminal Tribes Act 1871 prosecuted those tribes that were innately criminal and were addicted to the systematic commission of non-bailable offences. For Eunuchs, special provisions were laid down in this Act. It provided for the registration, surveillance and control of certain criminal tribes and had penalized eunuchs, who were registered and appeared to be dressed or ornamented like a woman, in a public place. Such persons could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. This Act was however replaced by central legislation i.e. Habitual Offenders Act which focused on targeting individuals rather than criminal tribes.
Section 377 of IPC criminalized all penile-non-vaginal sexual acts between persons, including anal sex and oral sex. Supreme Court, in 2013, criminalised any sexual activity other than the heterosexual penile-vaginal. This violates the freedom of transgender to have sex with their desired partners. However, the section was scrapped by the supreme court in 2018 Navtej Singh Johar v. Union of India which the apex court decriminalised consensual intercourse between two people of the same sex.
Recognition of Transgender as The Third Gender
Major impetus to transgender rights was given in 2014 in National Legal Services Authority of India (NALSA) V. Union of India Case under which Supreme Court for the very first time recognised them as 3rd gender
The Court in this case had to decide whether persons who fall outside the gender binary can be legally recognised as “third gender” persons. It discussed on whether disregarding non-binary gender identities other than male or female is a breach of fundamental rights guaranteed by the Constitution of India.
This was a landmark decision where the apex court legally recognised “third gender”/transgender persons for the first time and discussed “gender identity” at length. The Court recognised that third gender persons were entitled to fundamental rights under the Constitution and under International law. Further, it directed state governments to develop mechanisms to realise the rights of “third gender” transgender persons.
The Court upheld the right of all persons to self-identify their gender. Further, it declared that hijras and eunuchs can legally identify as “third gender”.
The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.
Under Articles 15 and 16, discrimination on the ground of sex is prohibited. The Court held that sex in this context should not be limited to physical attributes but also include gender ie the self-perception of oneself. Thus, the Court held that discrimination on the ground of “sex” included discrimination on the basis of gender identity. The Court declared that the Centre and State governments must grant legal recognition of gender identity as male, female or third gender. A full recognition is to be given even in the absence of any existing statutory regime. T declared that educational, social and health care issues faced by transgender people must be addressed both at the centre and state government levels.
LEGISLATION UNDER THE NDA GOVERNMENT
In 2014, a private member Bill, The Rights of Transgendered Persons, was introduced in the Rajya Sabha by Tiruchi Siva, a Member of Parliament from Tamil Nadu, which looked at a range of entitlements of such persons, providing specifically for them in health, education sectors, skill development and employment opportunities, and protection from abuse and torture. It was passed in the Rajya Sabha.
In 2016, the Government introduced its own Bill in the Lok Sabha and it was referred to a Standing Committee, which made a number of recommendations including defining the term persons with intersex variations, granting reservations for socially and educationally backward classes, and recognition of civil rights including marriage, partnership, divorce and adoption. The 2016 bill had various provisions which were reportedly regressive to the provisions in the 2014 bill. The bill was met with criticism and protests from Indian transgender persons and was referred to the standing committee, which submitted its report in July 2018. The Lok Sabha tabled and passed a newer version of the bill with twenty-seven amendments on 17 December 2018. However, with the suspension of the 16th Lok Sabha (2014-19), the Bill finally lapsed.
Following the constitution of the Lok Sabha, post the 2019 general election, The bill was passed by a voice vote in the Lok Sabha on 5 August 2019.The bill was introduced in Rajya Sabha in 20 November 2019, upon which it was passed without any amendments on 26 November 2019 following a motion to refer it to a select committee that failed by 77 noes against 55 ayes. The act came into effect from 10 January 2020 onwards vide a notification in the gazette on the same day by the Ministry of Social Justice and Empowerment.
Criticisms of the Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons Bill, 2019 fails the community on various grounds, specifically:
1. All the rights given to the trans persons under this new Act are already guaranteed under Article 14 of the Constitution of India.
2. The certification of trans persons can separate transgender persons from the society and the issuance of such a certificate may violate the right to privacy under Article 21 of the Constitution.
3. The definition of a transgender person is not defined properly and is somehow jumbled with that of an intersex person. Trans persons have a different gender identification than what was given to them at birth, while intersex indicates a diversity of gender-based on biological characteristics.
4. This Act uses the term ‘non-discriminatory’ very liberally but the definition or the nature of prejudice is not given. On top of that, no penalty has been prescribed for a person who discriminates against a trans person.
5. An application is to be made by the transgender person to the District Magistrate for issuing a certificate of identity as ‘transgender’ person. The law states that a trans person will have a right to self-perceived gender identity. But if the transgender person is denied the certificate by the District Magistrate, he/she does not need to mention the reason for refusal, as well as the Act, remained tight-lipped about the procedure in case the District Magistrate refuses to recognise a trans person or to issue a certificate. There is no answer to the question that whether the trans person can appeal for the refusal of a certificate.
6. The judgement forced the government to acknowledge the trans person group as socially and educationally backward groups and extend the reservation quota for admission to educational institutions and public appointments.
7. If a trans person is harassed, assaulted or sexually abused, the maximum penalty is just two years when a higher form of punishment is accessible for the same offence against male or female.
The Bill had left more questions unanswered than the concerns it aims to address. It
appears to be a check in the box, which, in its current form, may not be of much aid to the
Transgender Community. The timing of the ratification of the Bill in the Lok Sabha has also
been questioned. The Bill was passed, almost without a debate, on the same date when the
proposal to abrogate Jammu and Kashmir of its special status was introduced in the Rajya
Sabha. In some circles, this date is being referred to as the ‘Gender Justice Murder Day’ by
the TG Community. It has also been rumoured that the Bill was not made available to
relevant communities until the date it was proposed in the Lok Sabha. Considering the
concerns and certain critical imperfections identified above, the Bill in its present form
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