- Isha Choudhary
With the notification of the Social Ministry, as issued on January 10, 2010, the Transgender Persons Act has come into effect. The Act, prima facie aims to end discrimination against the transgender persons and at the same time recognizes the right the self-perceived gender identity. However, the act has been labelled as dissatisfying and obscure legislation by the transgender community. The blog provides an insight to the provisions of the act and also substantiates the reasons for discontentment of the trans community by the concerned statute.
Introduction to the statute
The Transgender Persons (Protection of Rights) Bill, 2019, hereinafter referred to as ‘the bill’ was passed by the Lok Sabha on August 5, 2019 and on Nov 26, 2019, by the Rajya Sabha.
The bill by getting the Presidential assent on 5th December, 2019 has become the act of the Parliament, the Transgender Persons (Protection of Rights) Act, 2019.
The bill was sought to provide a conducive mechanism for social, educational and economic empowerment of transgender persons, however, it is found that the transgender community is crestfallen and dispirited with the legislation.
The bill was first put forward in the year 2016 and it is since then that the transgender community has been taking issue with the various silences and the errors in this previous bill, nevertheless, despite becoming an act, the position continues to be close to dissatisfying and displeasing.
Problems with the Act:
- The act is violative of the fundamental rights of the transgender people.
- Qualified right to self-determination of the transgenders.
Section 4 of the act provides for a qualified right to self-determination to these transgender people. The section says that this right has to be recognized in accordance with the provisions of this act. The section 5 and 6 provide for the qualification to this right which is, that this right shall be contingent upon an application made by to magistrate, in the manner prescribed.
Furthermore, the clause (2) to section 4 states that it is upon this recognition, that the transgender people would have the right to “self-perceived gender identity”, wherein the recognition happens by virtue of the issuance of a ‘certificate of identity’ by the magistrate himself.
It is submitted that making their right subject to a certification by the state, amounts to the violation of the fundamental rights of the transgender people.
It has been categorically held by the Supreme Court in its 2014 pronouncement in the case of NALSA v UOI that the concerned right is protected by virtue of Article 21 of the Constitution.
In order to substantiate the same, the relevant excerpt of the judgment is extracted and reproduced:
“Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.”
- The Certification process is violative of the ruling of article 19 and 21 of the transpersons.
The court opined that constitutional dignity of human rights is something which ensures the normative unity of human rights. And one of the factors which express normative unity is the value of human dignity.
It states that the value of human dignity plays an important role in the determination of the proportionality of a statute which limits any constitutional right.
Furthermore, it laid down a two-step standard for giving effect of the principle of self-identification, which are, suitability and necessity.
The act does not satisfy the criteria and therefore, the limit imposed upon the constitutional right of the transgender persons, is not justified and thereby, violative of Article 19 and 21 of the Constitution.
- The act is in contravention with the law set by the judicial precedents and is discriminatory towards the trans persons.
- Mandatory sex reassignment surgery and burden of proving their identity, makes the bill discriminatory towards the trans persons.
The act is in contravention with the NALSA judgment which guarantees the right to self-identification without the need for any medical intervention, however, the act appears to mandate sex reassignment surgery for the transgender people.
In addition to the same, as discussed above, the act imposes an additional burden on the trans persons (certification by the state) and thereby strengthens the long standing assumption operating in the society, that being a cisgender is a norm whereas, being a trans person is an exception and therefore, these people are required to prove their identity, whereas, there is no such requirement for a cisgender.
The act, on this very point, highlights the discriminatory nature of the act and it is by virtue of putting this additional requirement, it can be inferred that the act again contravenes the precedents on other points, also.
- The act does not make affirmative action in employment or education despite being mandated in the NALSA v UOI judgment.
The act is a far cry from the much celebrated and progressive 2014 landmark judgment of NALSA v UOI, which mandated an affirmative action by the government for these trans persons.
It held that ‘the state is obliged to take measures so as to treat these trans people as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in both educational institutions as well as for appointment in the public offices’.
Whereas, the terra firma reality is that the act has gone against the mandate and does not provide for reservation in either education or employment.
- Bill provides for a colored recognition of sexual abuse of the transgender persons.
Chapter VIII of the act deals with acts and penalties. It provides for penalties in cases of offences like rape and sexual abuse with the transgender persons, however, it becomes pertinent to note that these penalties are different from those prescribed under the IPC, in cases of any such offence against a woman (cisgender).
For example, the penalty prescribed, under the act, for sexual abuse ranges from 6 months to 2 months which is much milder and lenient from what is prescribed under the IPC for any such offence committed against any woman. (section 354: assault or use of criminal force with the intention of outraging modesty of a woman).
It is asserted that such disparity in sentences for several offences when committed with transgenders in contrast with others, makes it discriminatory against these persons.
Hence, upon the perusal of the act, it is concluded that the act is a failed attempt at securing the constitutional rights of these trans people, which it was aimed at, and rather is a mockery of their struggles and at the same doubt leaves in doubt as to whether the act is a progressive or displeasing statute?
- The author is a 2nd-year student at National Law University, Jodhpur