By Pratham Gupta
Published on: March 24, 2022 at 10:00 IST
Introduction
Transgender people are, often, ridiculed and abused. They are treated as untouchables.
As a society, we often omit to realize and care for the Trauma, Anguish, and Pain that the Members of the Transgender community undergo, especially of those whose mind and body disown their biological sex.
The Historic unfairness would only be corrected through an active effort of the State, to recreate a discourse. The State must assure the Trans Community that it is a shared struggle.
A transgender is not an anomaly. It is a part of the spectrum of people’s realities. Issues relating to the transgender community range from social stigma, discrimination, lack of education, public health care to employment opportunities, issue of various government documents.
The Transgender Persons (Protection of Rights) Act, 2019 was approved in the Indian Parliament, for this reason, to improve the overall welfare of Transgender individuals in India.
On July 19, 2019, the Ministry of Social Justice and Empowerment introduced the Bill in the lower house of Parliament. Tiruchi Siva proposed the first Rights of Transgender Persons Bill in 2014 as a private member’s bill.
In 2015, the Rajya Sabha passed the Bill. However, there was an unanticipated delay in Bill’s discussion in the Lok Sabha, and it remained pending.
Meanwhile, a Writ Petition titled National Legal Services Authority v. Union of India (commonly known as the NALSA Judgment) was filed in the Supreme Court of India.
An Analysis
The Judgment remains significant in many respects. These are as follows
- It is the first legal recognition of Non-Binary Gender in India.
- It upholds the following fundamental Rights of Transgender Persons –
- ‘Dignity’ under Article 21 of the Constitution includes diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under Article 21.
- The Right to Equality (Article 14 of the Constitution) and freedom of expression (Article 19(1) (a)) is framed in gender-neutral terms ‘all persons’. Transgender persons are subject to ‘extreme discrimination in all spheres of society’ which is a violation of their right to equality. Further, the right to express one’s gender ‘through dress, words, action, or behaviour’ under the ambit of freedom of expression. Therefore, the right to equality and freedom of expression would extend to transgender persons.
- Articles 15 and 16, discrimination on the ground of ‘sex’ is explicitly prohibited. ‘Sex’ does not only refer to programsical attributes (such as chromosomes, genitalia, and secondary sexual characteristics also includes ‘gender’ (based on one’s self-perception). Hence, the Court held that discrimination on the ground of ‘sex’ included discrimination based on gender program
To Combat Stigma against the Transgender Population, the Court determined that Public Awareness programs are essential.
It also instructed the Federal and State Governments to take several actions to execute the following measures for the advancement of the transgender community:
- Including provisions in all documents for legal recognition of ‘third gender.’
- Recognizing third gender people as a ‘Socially and Educationally backward class of Citizens’ who are entitled to Educational and Public Job Reservations.
- Taking initiatives to develop community-based Social welfare programs
The Court ordered the Ministry of Social Justice and Empowerment to form an ‘Expert Committee on Transgender Issues’ to conduct a thorough investigation into the needs of trans individuals.
The Ministry of Social Justice and Empowerment established an Expert Committee in August 2013 in response to a Supreme Court order, and its report was published in January 2014.
Following that, on August 2, 2016, the Government introduced the Transgender Persons (Protection of Rights) Bill, 2016 (Bill No. 210 of 2016).
10 Several provisions in the 2016 Bill were said to be regressive and inferior to those in the 2014 private bill. It had also disobeyed numerous of the Expert Committee’s recommendations.
The Bill infuriated India’s Transgender population, Attorneys, and Campaigners. The Bill was sent to the Standing Committee in September 2016 as a result of the protest.
In July of 2017, the Standing Committee submitted its report.
A fresh version of the Bill (the third in this process) was introduced in Lok Sabha and passed in December 2018, ignoring many of the Standing Committee’s suggestions.
The Bill was enacted in Parliament on November 26, 2019, and has been in effect since January 10, 2020, despite outrage and criticism.
Read the detailed Bill here: Transgender Persons (Protection of Rights) Bill, 2016 (Bill No. 210 of 2016).
Loosely used Terminologies of Transgender and Intersex Persons
The Act is blind to the diversity that occurs among transgender people. The Bill has two elements that describe transgender people.
Part I, section 2(k), defines a ‘Transgender Person’ as a person whose gender does not correspond to their biological gender.
It consists of both transmen and transwomen. Persons with intersex variants are included in Part II of the definition.
Intersex people are included in the category of ‘transgender people,’ which is problematic because an intersexual person may or may not identify as a transgender person.
The investigation shows that the unique needs of intersex people are made invisible or secondary when they become just another subcategory of “transgender
The Standing Committee report explains that the 2016 Bill does not per se include, address, or defend the interests of intersex people because transgender and intersex people have different issues.
As a result, the Bill has been renamed The Transgender and Intersex Persons (Protection of Rights) Bill, 2016. However, the Ministry was told that rephrasing Bill’s title would be pointless because the Bill cites “transgender” as an umbrella term.
Issuance of Certificate
Gender identity must be Medicalized before it can be legally recognized.
The demand for Psychological or Medical certification is based on the assumption that trans people suffer from mental illnesses that necessitate medical assistance.
The 2016 Bill was criticized for proposing to create ‘Screening committees’ to identify trans people. The 2019 Act does not include any Screening committees, but it does require trans people to apply to the District Magistrate for the granting of a certificate.
After following such method and in such form and manner, within such time, as may be prescribed specifying the gender, the District Magistrate will do so.
The process isn’t explained in this document. However, it is reasonable to assume that when providing the certificate, the District Magistrate will rely on a medical practitioner.
Furthermore, the Act stipulates that a transgender person who receives sex-change surgery must apply to the District Magistrate for an updated certificate.
The applicant must get a certificate attesting to the surgery from the Medical Superintendent or Chief Medical Officer of the institution where the surgery took place to receive the amended certificate.
Only until the District Magistrate is satisfied that the Chief Medical Officer’s certificate is correct will the District Magistrate issue a revised certificate
Recent Transgender Jurisprudence, on the other hand, is thriving to reduce Medical and Administrative impediments to legally identifying trans people.
A dozen countries have taken measures toward trans equality as a result of this approach. Argentina, Malta, Colombia, and Uruguay are among the Countries that accept a Person’s Right to self-identify as their Internal and individual experience of Gender without interference from the Government.
Denmark is the first European country to enable adults to identify their gender without Medical intervention, followed by Sweden, Belgium, Ireland, and Norway.
Health Care Scheme
The Expert Committee and Standing Committee’s health-related recommendations are mostly incorporated into the Act.
However, it exclusively provides counselling for sex reassignment surgery and hormone therapy.
There is no provision for psychological counselling or Mental Health Counselling.
It also omits the insurance coverage that the Standing Committee recommended.
Welfare Schemes
The Expert Committee recommended a list of welfare measures to fulfil the purpose of the Act. These were as follows –
- An Umbrella Scheme for transgender persons may be formulated for the empowerment of this community.
- A Crisis Counselling Services on the model of Rape and Crisis Intervention Centres, to cope with trauma and violence.
- Ensure housing and rehabilitation through the housing assistance schemes with the help Ministry of Rural Development and Ministry of Housing and Urban Poverty Alleviation.
- Widening the mandate of one of the Corporations for providing economic support to the transgender community.
- Establishment of effective linkages with vocational training Centres run by private and Government agencies for providing vocational training to this community.
- A National Council for Transgender Persons may be considered on similar lines as that of the National Councils for Senior Citizen
However, the Act has failed to meet expectations on multiple occasions.
The Government should establish welfare schemes and efforts to include transgender people in the mainstream of society, according to Chapter IV, headed Welfare Measures by Government.
Except for the provision for the establishment of the National Council for Transgender Persons, the Act does not provide any guidance on what actions the government should take, nor does it allude to the locations where welfare operations should be carried out.
Furthermore, the Act deviates from the NALSA decision by eliminating the clauses establishing National and State Transgender Welfare Commissions and replacing them with the National Council for Transgender Persons.
The Council is thought to be a Vast Bureaucratic Entity with few Enforcement Powers.
Public Awareness
The Central Government and state governments should take an inclusive approach to transgender people so that they feel included in society and are not treated as outsiders.
The Committees proposed numerous ways to raise awareness about transgender issues, including:
- Using existing forums, such as Anganwadi Centres and Self-Help Groups, and involving them in delivering information to parents of gender non-conforming youngsters and the general public.
- To adopt measures for generating awareness at various levels such as Schools/Colleges, Government and private offices, Police stations, etc. regarding concerns of transgender persons. But the Act does not contain any such provision
Crime & Punishment
The Act’s most serious flaw is that, in comparison to the IPC, it shortens the sentence for Rape and Assault against members of the Transgender Community.
When a Transgender Person is sexually assaulted, the punishment is vastly different than when a cisgender person is sexually assaulted.
According to the Act, anyone who is found guilty of instigating or inflicting sexual abuse of a transgender person faces Imprisonment for a time not less than six months but not more than two years, as well as a fine. Sexual offenses against Cis-Women, on the other hand, are subject to harsher sanctions, which might include life imprisonment.
The differential treatment between binary and non-binary people is a violation of Article 14 of the Constitution.
Also read: What is the difference between an Article and a Section?
Reservation in Education Institutions
The Supreme Court’s NALSA decision directs the federal government and state governments to take efforts to classify trans individuals as ‘Socially and Educationally backward classes of Citizens’ and to extend all forms of Reservation in Admissions to Educational institutions and Public Appointments.
The Expert Committee also proposed that the government provide scholarships, fee waivers, free textbooks, and free hostels, among other things.
However, the Act simply states that educational institutions must provide inclusive education and opportunity for transgender people to participate in Sports, Recreation, and leisure activities without prejudice.
It discusses an inclusive education system but says nothing about how to accommodate transgender youngsters in educational institutions.
Also read: What is the Constitutional Right of Reservation?
What is the Right to Education Act? What is the National Education Policy 2020?
Conclusion
Trans-equality cannot be guaranteed solely by the legislation.
The Government must take steps to integrate trans individuals into Mainstream Society.
The Centre for Gender, Diversity, and Inclusion Statistics was established with $6.7 million from Canada to identify the difficulties that the trans community encounters.
For this reason, it has chosen to add a third gender option to its Census in 2021, allowing it to better accommodate the trans community’s requirements.
In India, it is past time for the government to launch a bold visibility campaign to assist trans and nonbinary people in overcoming the anguish created by decades of institutionalized discrimination.
The main goal of Social Welfare law should be to safeguard marginalized people’s rights.
When marginalized communities are unable to engage in Political discourse due to a very real threat to their lives and systemic barriers that not only discourage, but actively prevent members of the community from occupying and participating in political spaces, it is incumbent on the state to actively engage with such communities to create such a discourse.
At the same time, we must recognize that laws alone will not bring about change unless society is willing to embrace trans individuals as full members of society.
Edited by: Advocate Komal Sharma, Publishing Editor at Law Insider
Reference
- Cabinet approves transgender bill, The BusinessLine, July 10, 2019,
- Anuvinda P and Tiruchi Siva, “A Story of Two Bills”, The Indian Express, October 28, 2016,
- Comments on The Transgender Persons (Protection of Rights), Bill, 2016, Vidhi Centre For Legal Policy, November, 2016
- Radheshyam Jadhav, ‘Steps to empower transgender community’, Times of India, August 7, 2014.
- ‘Expert panel wants transgender declared the third gender’, The Hindu, March 14, 2014,
- Ministry of Social Justice and Welfare, Transgender Persons (Protection of Rights) Bill, 2016.
- Report of Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Welfare.