By- Astha Satsangi
(Student of Faculty of Law, Delhi University)
Earlier, there was recognition of only two categories of genders in different Criminal and Civil laws i.e., Man and Woman. These laws include The Indian Penal Code, 1860, National Rural employment Guarantee Act, 2005 and Hindu Succession Act, 1956. Now this Act (The Transgender Persons Act, 2019) includes a third gender i.e., transgender. But also this act does not clarifies how these transgender persons will be treated under such acts.
Like, under the NREGA Act, women are given priority in the sense that one-third of the recipient of this benefit are to be women if they have registered for such employment. Also there are different eligibility criteria for males and females under Hindu Succession and Maintenance Act, 1956 to adopt a girl child. In references to these facts, the applicability of these laws to transgender persons are not defined in this Act.
Also, the penalties for similar offences can also differ because of the application of different laws based on different gender identity. Like, under this act the penalty for sexual abuse against a transgender person is up to only two years which is far less than that of life imprisonment for the sexual offences related to women under The Indian Penal Code.
Who is a Transgender Person?
According to the International standards, ‘transgender’, is referred to as an umbrella term, meaning, that a persons whose sense of gender does not match with the gender assigned to them at the time of their birth. That is to say, a person born as a man may be identified as a woman (different gender as that from birth). Additional to this divergence, the Transgender Persons Bill has provided a list of certain criteria to the definition of transgender persons. The list includes:
A combination of ‘male’ and ‘female’,
Neither wholly ‘male’ nor ‘female’, and
Neither ‘male’ nor ‘female’.
The expert Committee of Ministry of Social Justice and Welfare, the Recent Standing Committee Report and The Supreme Court, all define the ‘transgender’ persons based on this discrepancy only.
The meaning of the term Transgender as provided in this act is:
A person whose gender does not match with the gender assigned to him at the time of birth and it 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,
persons having such socio-cultural identities as Kinner, Hizra, Jogta and Aravani.
These persons undergo a lot of struggle to carry on with their lives as they face a lot of abuse on day-to-day basis.
For centuries, transgender have been a part of the Indian society. The Indian Mythlology has an integral part of the ‘TRITYAPRAKRITI’ or ‘NAPUNSAKA’. Three genders has been recognized by ‘vedas’. They described individuals belonging to one of the three categories based on one’s prakriti or nature. The ancient Hindu Law and the Manu smriti explains the biological origin of three sexes. According to these fundamental texts, if the quantity of male seeds are more, a male child is born. And if the quantity of females seeds are more than a female child is born; and if the quantities of both are equal, than a third-sex child is born.
Even in both of the most eminent Hindu epics i.e., Ramayana and Mahabharat, the existence of third-gender has been acknowledged by the characters of Shikhandi and Aravan. Also, the Hizras of Tamil Nadu consider the Aravan as their forefather and call themselves Aravanis.
Hizras played a conspicuous role even in the the Islamic World in the royal courts. They rose to eminent positions such as administrators, political advisors, generals and as well as guardians of the Harems. Hizras were used to be considered as clever, fiercely loyal, trustworthy and were closely related to the Kings and Queens. During this period, they enjoyed significant power.
Legal background of the Act
The Supreme Court in 2014, addressed a issue as a ‘Human Rights Issue’ whereby it recognized the Transgender person’s right to self-identify their gender as male, female or as third-gender. The judgement in NALSA V Union of India [AIR 2014 SC 1863] brought up that non recognition of gender identity violates the Fundamental Right enshrined in Article 15 of Our Constitution, which prohibits discrimination on the basis of sex. The Transgender Persons (Protection of Rights) Act, 2019 was passed in 2019, to allow the persons to self-recognize their gender identity and provides them for the identification of transgender persons and grant them certain rights and benefits.
The Landmark judgement of NALSA v. UOI
The National Legal Service Authority ( a statutory body to provide free legal aid to the eligible candidates) in 2012, filed a writ-petition before the apex court of India asking for a legal declaration for transgender person’s gender identity other than that of assigned to them at the time of birth, and that the non recognition of the same will violate the fundamental rights given to the citizens of India enshrined in Article 14 and 21 of the Indian Constitution.
The Court in deciding this issue analysed legislations of other countries of the world like Netherlands, Germany, United Kingdom, Canada, Australia, etc., to focus on the fact that the ‘guarantee to equality and non discrimination’ and the recognition of ‘sex identity gender’ of persons on the basis of gender identity or expression is to be applied to India as well because it is gaining acceptance in international law.
For the interpretation of the gender equality, the Court also draws attention to the International Conventions and Norms. That is Article 1, 3 and 5 of the Universal Declaration of Human Rights provides for the provision that all human beings are equal in dignity and rights and are born free. There were also other such conventions that talked about safeguarding the rights of the discriminated and marginalized, these includes, United Nations Convention against Torture or Other Cruel Inhuman and Degrading Treatment or Punishment and The International Convenant on Civil And Political Rights.
The court in this case gave special attention to the Yogyakarta Principles, which is a set of principles on the implementation of International Human Rights Law in relation to gender equality and sexual orientation. These principles assert the International Legal Standadrs binding on all States which they must comply. Also these principles promise a different future where all people are equal in dignity and rights and are born free.
This writ petition was allowed as the Supreme Court Held that sexual orientation and gender equality include transgenders, and that each person’s gender identity and self defined sexual orientation is one of the most basic aspect of freedom, dignity and self determination and integral to their personality, and also that no one should be forced to undergo medical procedures as a requirement for legal recognition of their gender identity. The apex Court also declared persons apart from these binary genders as a ‘third-gender’ to safeguard their rights that are enshrined under Part III of the Indian Constitution. Also, to make an in-depth study of the problems faced by the community of these transgender persons and to suggest the measures to improve these problems, an expert committee was constituted.
Journey of The Act
The Transgender Persons Bill was introduced in Rajya Sabha in 2014 as a private member’s bill by Tiruchi Siva of Dravida Munnetra Kazhagam. This bill was passed unanimously by Rajya Sabha on 24th April 2015. This bill, however, underwent significant changes when the government drafted its own kind of the bill. It was then sent to Law Ministry and came to known as The Rights of Transgender Persons Bill, 2015. Then this bill was introduced by Baijayant Panda of The Biju Janta Dal Party, in the Lok Sabha and was discussed on 29th April 2016.
After the 2014 general elections, the 2016 bill was tabled whereas the 2014 bill passed by Rajya Sabha was still pending. A standing committee took the former bill which then submitted its report in July 2018. Lok Sabha then tabled and passed a newer version of bill, which was also lapsed.
Then after the 2019 general elections, on 19 July 2019, the bill was introduced in the Lok Sabha by Thawar Chand Gehlot ( Minister of Social Justice and Empowerment), and it was finally passed undebated in the midst of the Chaos following the revocation of Jammu and Kashmir’s special status by the Parliament. Then it was subsequently passed by Rajya Sabha and on 5th of December it was signed by President Of India and obtained the form of Law.
Provisions of The Transgender Persons Act
The Transgender Persons Act prohibits any kind of discrimination against a transgender person which includes unfair treatment or denial of service in relation to employment, healthcare, education, access to, or enjoyment of facilities, goods or opportunities available to the public. Also a Transgender person may write an application to the district magistrate for a certificate of his identity which indicated his gender as ‘Transgender’. Additionally a council for these persons is to be made under this act that is National Council for Transgender (NCT) to advise the central Government and also monitor the impact of policies, projects and legislations with respect to Transgender Persons. The ex-officio chairperson of the council is the Union Minister In-Charge of the Ministry of Social Justice and Empowerment.
Lacunas and Demands
While the act can be said progressive in nature, it has various abnormalities and discrepancies which continuously go on to prove that it need further clarifications and that it was passed in a hurry. Therefore, this act was criticized by various transgender persons, students, lawyers and activists. The criminalisation of begging under the 2018 bill was to affect the transgender people in India like Hizras and Jogtas who were engaged in begging as a ritual and custom and this was the source of livelihood for some of these people. It was also alleged that the district screening committees left gaps for prejudice and incompetence by various critics.
Section 4(2), 5, 6 and 7 of the act have a head-on conflict by providing the ambiguity referring to the obtainment of identity certificate which is approved by District Magistrate. Ironically, this act allows to self- identify their gender by the individuals, but on the other hand mandates them to certify and take confirmation from the District Magistrate. This procedure indeed separate these persons from mainstream genders and results in further isolation. Why does a trans-person has to undergo through screening to obtain a certificate which gives them their identity and are subjected to mandated humiliation and requirement of undergoing such a screening, when a normal gendered person isn’t subject to such screening. Moreover, this law is silent about the process of this screening too.
It is mandatory to stand against a DM and to convince him that he is a transgender. And this law also does not provide for the provisions if DM is not satisfied with the fact that the person standing in front of him is a transgender and does not issue such certificate.
Further section 18 of the act does not provide for the penalties if the police officers denies to register their complaints or the doctors refuse to provide them the services.
The act initially provided that, except on court’s order, no transgender person can be separated from their family, owing to their identity. But now, clause 12 of the act seeks to limit it to the transgender children and not to transgender persons, by the recommendations of the standing committee. But the people may discover, when they are no longer children by the definition of the law, their sexual identity, and then there can be a situation when they are being thrown out of their parental home. So this act somewhere commit an injustice by restricting this right only to the children.
Conclusively, an analysis of this act shows that there are certain flaws which need to be considered otherwise they can do more harm to such people than the good. Importantly, the main aim of this act is to ease their entry into the mainstream and also to help them to live their lives with equal rights and dignity, but not only restricted to giving mere the legal right to their community. They are also human after all, and occupied powerful positions in the past. Therefore, this act should be a measure to undo the wrong things which are committed to them and to translate them into equally important, productive and dignified members of this society.
1. The Indian Penal Code, 1860
2. National Rural employment Guarantee Act, 2005
3. Hindu Succession Act, 1956
4. The Transgender Persons Act, 2019
5. The Constitution of India, 1950
6. Universal Declaration of Human Rights,1948
7. The International Convenant on Civil And Political Rights,1966
8. United Nations Convention against Torture, 1987
9. International Human Rights Law,1948
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].