India’s Transgender Persons (Protection Of Rights) Act, 2019: A Critique
The Supreme Court of India in 2014, declared the right of every Indian citizen to choose their gender identity as male, female or third-gender. It ruled that the fundamental rights granted by the Constitution are equally applicable to everyone who constituted the ‘third gender’. The judgement also called for taking proper measures in education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. Legislation was framed for the same in December 2014 by Tiruchi Siva, a DMK Rajya Sabha MP. The bill known as the Rights of Transgender Persons Bill, 2014 was supposed to be the one that would safeguard transgender individuals from any form of discrimination. It was passed by the Upper House but lapsed in the Lok Sabha. The Transgender Persons (Protection of Rights) Bill 2016 received heavy criticism for its inadequate definition of the third gender, absence of mention of reservation, etc. This bill too lapsed when the 16th Lok Sabha ended.
The Transgender Persons (Protection of Rights) Act, 2019 which was introduced as a Bill in Lok Sabha on July 19, 2019 by Thaawarchand Gehlot, the Minister for Social Justice and Empowerment, was finally signed on December 5, 2019 by the President of India. It consists of nine chapters, a statement of objects and reasons, the president’s recommendation, a financial memorandum and a memorandum regarding delegated legislation. The nine chapters elaborate on the features of the Act which include the definition of a transgender person, prohibition against discrimination against a transgender person, their right to residence, employment, education, healthcare, welfare measures by the government, application of certificate of identity for every transgender person, offences and penalties specified and recognised, a mention of the National Council for Transgender persons (NCT) and its function.
The Transgender Rights Act 2019 is an only slightly improved version of its antecedents. It has a comparatively inclusive and more eclectic definition of the term ‘transgender’, and no more includes the problematic provision requiring criminalisation of begging. However, there are various gaps in the bill that present a misplaced understanding of ‘gender’ and limited equalising potential:
Ambiguous language: Its language could be interpreted to mean transgender people are required to have certain surgeries before legally changing their gender; “whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy”- Clause 2(k)
Intersex persons put under the umbrella of Transgender: Including intersex people without acknowledging that intersex persons are not always transgender or transexual (both of which also are different things) could mean that the bill is conflating sex and gender, thus diminishing its capacity to understand the needs of the transgender persons; “transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman, person with intersex variations”- Clause 2(k)
Unclear legal gender recognition process: It is a two step process consisting of self-declaration of identity followed by getting it confirmed by a medical and a legal authority, thus giving power of denial to the said gender identity into another person’s hands, thus violating the Fundamental Right to Privacy, the Supreme Court ruling of 2014, and international standards of legal gender recognition. Clause 4 to clause 7 talks about this process. This a major point brought up in the outcry by the transgender community of the country against the Act.
Ambiguously giving power to the Court to separate children from parents: Removing children from their parents is not allowed if the reason is either of them being transgender, but the same can be meted out if the force removing them is a court; “No child shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such child.”- Clause 12(1)
No mention of structural change needed: The establishments are expected to comply with the act but not expected to create better and inclusive spaces, and for addressing problems of otherisation of transgenders.
Shying away from trying to eliminate systemic biases: The government and public servants are expected to fulfill their duties towards the act but are not liable in case they fail or refuse to do so or misuse their powers, meted out to them by the state, to harass or discriminate against transgender persons; “No suit, prosecution or other legal proceeding shall lie against the appropriate Government or any local authority or any officer of the Government in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act and any rules made thereunder.”- Clause 21
Lesser punishment for sexual abuse of transgender persons: The maximum punishment given to the perperators of sexual crime against transgender persons is two years, as compared to that against cis-gendered persons which is seven years; “harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.”- Clause 18(d)
Absence of any mention of reservation: The previously promised 2% reservation, as in the older versions of the bill, is completely absent from this draft.
Various recommendations that should have been looked into by the Parliament before signing of the Act
The Act has some serious lacunae regarding certain major aspects, thus rendering it regressive.
Many indegenious identities like the Thirunangais from Tamil Nadu, Shiv-Shaktis- transwomen who are considered married to Shiva, the Nupa Maanba and Nupi Maanbi from Manipur, young children who do not associate with the gender assigned to them at birth and could not yet decide their preference should also be included in the transgender persons definition.
The definition of inclusive education as “a system of education wherein transgender students learn together with other students without fear of discrimination, neglect, harassment or intimidation and the system of teaching and learning is suitably adapted to meet the learning needs of such students”- Clause 2(d), seems discriminatory as it tends to equate having transgender identity to a physical disability.
Many terminologies like discrimination, violence, rehabilitation, abuse, harassment, barrier, reasonable accomodation, etc, that are used contextually in the bill have not been and thus should be defined in the bill.
Denial of inheritance of property should also be included as a discriminatory practice against trangender persons, as is absent in Clause 3(g)- “the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property ”.
The Transgender Certification issuance should be given a strict timeline to abide by, in order to reduce systemic challenges for the persons applying for the same. There should also be a single window system for helping transgender persons with their documentaions related problems to save them the harasssment and to make the process less time consuming and more focussed.
Suitable reservations should be provided for them in education and employment as they are a historically disadvantaged community. And taking a leaf out of the booklets of a few states like Kerala, Odisha, Andhra Pradesh, a suitable monthly pension scheme should also be introduced.
Sex reassignment surgeries should be free of cost in order to ensure fundamental right to self-perceived identity, according to Article 21 of the Indian constitution.
Setting up separate AIDS surveillance centres for transgender persons would only increase stigma and discrimination against them; “to set up separate human immunodeficiency virus Sero-surveillance Centres to conduct sero-surveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf”- Clause 15(a)
Considering the amount of physical and sexual violence faced by transgender persons, they should be accorded the same protection as men and women under the Indian Penal Code. And their perpetrators should be booked under relevant sections of IPC itself and not just simply meted out a mere 2 year imprisonment in case of heinous sexual crimes as mentioned in Clause 18(d).
A separate detailed chapter entitling transgender persons’ right to marriage, family and adoption should have been added to the bill.
*About the author: Prashasti Shukla, MA Gender Studies, Jamia Millia Islamia
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The Rights of Transgender Persons Bill, 2014 Bill (No. XLIXC-C), 2014. PRS Legislative Research.
National Legal Services Authority versus Union of India and others. Supreme Court Cases. 5: 438. 2014.
Sayan Bhattacharya. The Transgender Nation and its Margins: The Many Lives of the Law, South Asia Multidisciplinary Academic Journal, 2019.