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“I know I am Transgender because my brain knows its Female, and my body disagrees”-Alan Cohen.
In the world of gender binaries were only male and female are believed to be only genders and anything out or beyond this is considered out of dictionary, LGBTQIA+ community exists where T stands for Transgender. Transgender people are the most suppressed and marginalised community of the LGBTQIA+ community. Transgender persons are neither men nor women but a mix of both called as intersex. They have been existing in every race, caste, religion and region but they have to face humiliation everywhere around. Nevertheless, they were denied all of their basic fundamental rights including Right to Equality (Article 14), Freedom of Speech and Expression (Article 19) and Right to Life and Personal Liberty (Article 21). They are defined as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”. Transitioning is opted by them to change various aspects of themselves and it can be social, legal or medical. They may change their name, pronoun used, appearance and physical body. The medical procedure for this is called sex reassignment surgery.
Transgender persons had a better living before British. They were considered loyal and were given privilege. The British criminalized penile-non-vaginal and sexual acts under section 377 of Indian Penal Code, 1860. And also put them under restrictions with the help of Criminal tribes Act, 1871. The dark life of the transgender started to lighten up with the first Rights of Transgender Persons Bill, 2014 but it also created a lot of uproar in the society. The bill was again drafted in 2016 keeping in view the recommendations of the judge bench of the landmark judgement of National Legal Services Authority v. Union of India. In the judgement, for the first time the community was considered to be the third gender in the independent India and the centre was directed to consider it as a minority group. The Transgender Persons (Protection of Rights) Bill, 2016 did not stand with the expectations and did not follow all the recommendations of the judge bench. And thus was sent to a standing committee in 2016 for review whose report was sent in 2017. This review report and again the landmark judgement of Navtej Singh Johar v. Union of India lead to the third draft of the bill, which become an act in 2019.
The Transgender Persons (Protection of Rights) Act, 2019 was passed by both the houses of parliament after 27 amendments in the 2016 draft according to the standing committee report and judicial precedents. It aims to empower transgender in all aspects of life protecting them for any kind of discrimination on any basis. It also directs the centre to form National Council for Transgender Person aiming to regulate all the activity and address to the grievances.
The act still attracted fury among the transgender community, lawyers, etc. It was criticised as it ignored some of the recommendations of the standing committee, was not parallel with the judgements of the Supreme Court and violated the rights of the transgender community. It again defied the judgement of National Legal Services Authority v. Union of India. Also, it defies the judgement in the cases of Navtej Singh Johar v. Union of India and K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. Major criticism of the act is on its legislation on identification of the transgender, does not recognise same-sex marriage, no reservation for the transgender and unequal punishment for crimes against transgender.
The following article focuses on the legislative perspective of Transgender Persons (Protection of Rights) Act, 2019. Also all the above mentioned legislations and development is discussed in the following work extensively. It also analyse criticisms against the act to bring out the loopholes and try to put forth the way ahead.
Since forever we have always heard and believed that there exists only two types of people i.e., male and female as per gender. There never existed a word about something called as LGBTQIA+ community. Each letter of LGBTQIA+ has its own story where L, G, B, T, Q, I, A stands for lesbian, gay, bisexual, transgender, queer, intersex and asexual respectively. In this article we will focus our study on transgender community only.
First we need to understand what gender and sex means. Sex is the bodily aspect which includes genitals, chromosomes, etc., on the other hand gender is the social aspect including behaviour, personality, interest, etc. Now, transgender people can be understood as people who do not identify themselves psychologically with the gender given to them at the time of birth which is based on external genital identification. They are commonly known as hijras, kinner, jogta, etc. This is the community of people who have seen the worst side of humanity and society with the advent of British in India. Since then for a number of years they had to fight the society to have their basic rights. The fight still remains with some hopes and development with the legislations brought in along with judiciary support.
Even after seven decades of Independence, this is one of the communities who are yet been discriminated and marginalised in the same way. But this was not the situation from the beginning. History shows that before British era in India, they were treated in a better way and had a preferable livelihood.
Going into the history we can see mention of transgender in the epics of Ramayana and Mahabharata. In Ramayana, when Ram was living Ayodhya with Sita and Laxman for 14 years they were followed by all the people of the area. When Ram said all men and women to go back it was transgender people who stayed there. This was the incident where they were empowered to bless people during several occasions. Arjuna in the epic Mahabharata himself took the identity of transgender when he was in exile.
Lord Shiva himself has a form which is half of Shiva and half of Goddess Parvati. This form of Shiva is called as Ardhanari which is again a transgender and is sacred to transgender community especially. Even in the sacred book Quran in Islam recognises that there are humans who are not male neither female in the verses of Surah Ash Shura. Also, during the Mughal Empire they were considered very loyal and were trusted with important positions.
In the 19th century with the advent of British rule in India the situation changed into worse for transgender. They were treated as sexual service workers and were denied the basic human dignity and rights. They criminalised all sexual acts between same genders under section 377 of Indian Penal Code (IPC). Also to strengthen laws against transgender just to remove their identity from the society, Criminal Tribes Act, 1871 (CTA, 1871) was introduced and legislated upon. The same was repealed in 1952 by Jawaharlal Nehru government but it has already caused irreversible damages to the life of transgender people.
LEGISLATIONS AND CASE LAWS
After Independence, there has been constant struggle and effort to improve the situation of the transgender by the complete society. It has been a continuous process of making amends. This started with the case of Naz Foundation V. Government of NCT in 2009. Naz Foundation filed a PIL in Delhi High Court challenging the constitutionality of the section 377 of Indian Penal Code. But the PIL was rejected by the court for hearing on the grounds of locus standi. The PIL was accepted assuming public interest when re-appealed in SC. The judgement given by the two judge bench decriminalised homosexual acts without striking down the whole section.
After the judgement, The Right of Transgender Persons Bill, 2014 was introduced by Tiruchi Siva, a member of parliament as a private members bill. The bill was never called upon in the Lok Sabha even after being passed in Rajya Sabha. The bill had several progressive ideas for the transgender community. This includes recommendation for establishment of commissions for transgender having national and state level courts. This also promoted the right to equality and dignity for the transgender.
The journey to reach to a place of equality for transgender has not only been slow but unfortunate also. As the judgement of Naz Foundation V. Government of NCT decided in 2009 was overturned by two judge bench in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors. It was again held that any sexual act within two consenting homosexual is a crime and the constitutionality of section 377 of IPC was again upheld.
After the aforesaid judgement another ray of hope and development came from the judiciary in the National Legal Services Authority v. Union of India case. The statutory body filed a petition in the apex court asserting for accepting gender identity of the transgender. The apex court looked upon the laws of other countries relating transgender and also the Universal Declaration of Human Rights. Eventually, a big step forward was taken by the judge bench by recognising Transgender as a Third gender after having only male and female as gender. It also recognised several fundamental rights for the transgender.
With the judiciary development, legislation of Transgender Persons (Protection of Rights) Bill, 2016 was drafted and introduced it in Lok Sabha. The bill had several oppositions and loopholes and thus was sent to a standing committee for recommendations on scope for improvement. The 2016 bill also defied recommendations of the expert committee which was set up for the 2014 bill. As per the committee report for 2016 bill it states that the bill does not per se protect the interest of the intersex person also.
In the year 2017 right to privacy was considered under fundamental rights to be granted to every citizen of India in the case of Justice K.S. Puttaswamy V. Union of India by a nine judge bench. Under this right to personal liberty was promoted which included sexual preferences. This not only paved way for the betterment of transgender but the whole country.
The most waited decision from the apex court came in September, 2018 decriminalising all consensual sex between consenting adults including homosexual intercourse by a constitution bench in Navtej Singh Johar V. Union of India case. The judgement overturned the Koushal V. Naz Foundation case judgement by decriminalising part of section 377 of IPC. The decision was taken keeping in view the fundamental rights of transgender of right to equality, right to life and personal liberty. The parts of the section dealing with minor and non-consensual acts remained.
With the aforesaid case, we have reached to the part of the timeline when the final draft of series of bill relating transgender rights and protection was passed and later became an act.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
Transgender Persons (Protection of Rights) Act, 2019 could have been the brightest ray of hope for change in the life of the transgender community. The bill was drafted after the judgement decriminalizing consensual sexual intercourse between same sex couple. It was introduced again by the minister of social justice and welfare, Thawar Chand Gehlot. The bill was passed in Lok Sabha and Rajya Sabha and obtained President’s assent on 5, December, 2019. The act is in effect since 10, January, 2020.
Some of the significant features and elements of the act are as follows:
- The act provides with legal definition of transgender persons. It defines transgender as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”. It covers intersex community under transgender community only with which many people may not agree.
- It has legislations prohibiting discrimination against the transgender community on the grounds of employment, education, movement, residence, life, etc.
- According to the judiciary precedence of NALSA V. Union of India, it recognizes transgender person and their identity. It gives right to the transgender to perceive their self-perceived identity. But along with it they need to have an identity certificate issued by the district magistrate on filling applications for it.
- The act directs the government to introduce welfare schemes for the improvement and development of the community. This will help to promote their rights and standard of living.
- It provides with instructions to the government for providing with proper educational and medical facilities to the transgender people. It gives assurance for future research in the field of medical reassignment surgery.
- It makes legislations for dealing with offences and relating penalties. The offences include: physical and sexual abuse, force labor, etc. The punishment can be for six months to two years.
- Last but the most important element is formation of National Council for Transgender Persons for execution of the act and providing with needed recommendations. The council will be headed by union minister of Social Justice and Empowerment and will have other members.
The act is subject to several criticisms and problems which can be developed and improved upon. The act faced major backlash among the transgender community, scholars and researchers. It was questioned because it did not give proper attention to all the recommendations by the expert committee and the standing committee, and also the recommendations by the judiciary in different cases.
Some of the major criticism of the act is explained below:
- Self-identification & Issue of identity certificate – The act states that it is the right of the person to continue their self-perceived identity. But again to have legal recognition it makes it mandatory to have a gender identity certificate issued by the district magistrate. Also, it allows for change in the gender recognitions but only with the attested certificate provided by the medical officer. It contradicts the point of self – identification and makes proof for it mandatory. Above all of this it does not talk about any redressal committee in case of any discrepancies.
- Transgender & Intersex – The act defines transgender in its first chapter. But it loosely uses the term intersex and transgender and presents them as a part of same community. There may be case where an intersex person does not identify himself/herself as a transgender. The act also focuses on some group of transgender like hijras and transwomen and not on transmen and intersex.
- Reservations – According to the NALSA V. Union of India case judgement, the government was asked by the judiciary to consider the transgender community as socially and educationally backward classes. As per this there should be reservations for the community in the field of education and employment to encourage their participation. But the act only talks about providing facilities including education and employment and not about reservations and other incentives.
- Same – sex marriage – After the Navtej Singh Johar case homosexual intercourse is made legal. But the complete act is silent about homosexual marriage and does not provide any rule for it. The way heterosexual intercourse as well as marriages are legal there is nothing talking about homosexual marriages.
- Offences and Penalties – The act provides for penalties against the offences like sexual and physical abuse, harassment, etc. The duration of the punishment for offences against transgender lies only between two months to two years. When compared to punishment for offences against women, this can be said that it is violative of right to equality and treating every person same in the eyes of law. It can be said because under section 354B of IPC punishment for offence against women is minimum 3 years.
- Others – Some other elements of the act only states directions for the improvement to the government. It does not mention the way ahead and also does not establish accountability and time limit. For example: there is need to develop the medical care system which is highlighted in the act but the development should be done in a fix time period which is not stated in the act.
GLOBAL POSITION OF TRANSGENDER
Transgender persons face different situations in different countries. Some of the countries have accepted them and are treating them equally, where on the other hand in some countries there fight for equality is still continued.
- United States of America – In United States of America the transgender are considered and are given the identity of third gender. Their homosexuality is considered as normal as heterosexuality. Under Civil Rights Act 1964, Title VII and Education Amendments 1972, Title IX discrimination against transgender at work place and education centers is prohibited. The country provides for the safety and rights of the transgender.
- Argentina – In Latin America, Argentina became the first country to legalize homosexuality and identified transgender community. Gender Identity Law was passed in the country in year 2010. It made sex-change surgery a legal right which helped them to get the surgery without having any psychological problems. It also allowed same-sex marriage for the homosexual couples.
- Denmark – Denmark even after being a country in Europe, in 2014 allowed its citizen to amend their gender identity in legal documents without any medical treatment or psychiatric evaluation. This was done in Denmark by regulating the Danish Population register. In Europe major countries require medical treatment or sterilisation for gender identification.
- Germany – Another country of Europe, Germany in 2017 declared to recognise transgender and intersex as third gender. The main application of the decision was that from then, in the birth certificates transgender or intersex can be written. The process of having genital surgery to change gender in legal documents was declared unconstitutional.
- Ukraine – Not all the countries have yet accepted transgender, Ukraine is one of them. In the country legal recognition of transgender people comes with the cost of medical treatments including surgeries, sterilisation, tests, etc. This process of psychiatric evaluation last upto 45 days is required to confirm or reject a diagnosis of “transsexualism”.
CONCLUSION AND RECOMMENDATIONS
From being counted as a disease to being counted as a third gender they have come a long way. In the century of modernisation and digitalisation their lives a community which still struggles to get their identity. Transgender are those people who do not identify themselves with the gender assigned to them at the time of birth. They are marginalized and discriminated since decades now. They lack the dignity, identity and rights granted to everyone. Slowly and steadily we are moving towards providing a better society to the transgender. But the legislation enacted is less practical then theoretical.
The legislation of Transgender Persons (Protection of Rights) Act, 2019 has provided with some development but there still exists a lot of scope of amendments in it. India adopted several features of its Constitution from several other countries. Similarly, while analysing the position of transgender globally, the researcher came across various arrangements which can be incorporated and adapted in India also. It includes having specific laws for prohibiting discrimination in various fields of life, giving legal recognition to same-sex marriage, proper procedure for medical surgeries, etc.
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Author: Varsha Khowala, SYMBIOSIS LAW SCHOOL, HYDERABAD
Editor: Kanishka Vaish, Senior Editor, LexLife India