Introduction
Discrimination on the basis of gender is often a common occurrence in Indian society. Where there is unending discrimination being conducted against the female gender, then discriminating against third genders or non-acceptance towards them is obvious in typical Indian society. They have been facing strong disapproval from society due to which they became a deprived section of society. However, this is a modern India, demonstrating that our society is progressing and gender will not be a barrier to people’s career advancement. Thus, in 2014, it was a judgment by two judges’ bench in NALSA v. UOI[1], which granted legal recognition to transgender people. It held that all people have the constitutional right to self-identify their gender.[2] The Court recognized that self-identification of gender is sufficient to empower people. In the wake of the NALSA judgment, there were several efforts made to enact legislation for the protection of the transgender community. But it failed. Ultimately, the Ministry of Social Justice and Welfare enforced the Transgender Person Bill, 2016 on December 5th, 2019 as The Transgender Person (Protection of Rights) Act, 2019 to provide protection of rights to transgender people.
Key Features of TG Persons Act, 2019:
The Transgender Person (Protection of Rights) Act, 2019 extends to the whole of India with the view to protecting “the rights of transgender persons who are underprivileged in society.” “Transgender” under section 2(k)[3] is defined as any person who is “neither female nor male in whole, or combination of either of these, whose sense of gender does not match with the gender assigned to that person at the time of birth.” The act also includes “trans-men and trans-women, persons with intersex variations and gender-queers” in the definition of “transgender persons”.
- Chapter II under the act strictly prohibits “discrimination against transgender persons,” for instance, “denying them employment, occupation, healthcare treatment, the right to move, hold public office, etc.”
- Chapter III provides TG persons “a right to recognize their identity; a right to perceive themselves; a right to record their name in all official documents; and a right to change their gender,” for which they are free to make an application before the district magistrate to issue an identity certificate.
- Chapters IV and V place obligations on appropriate governments and establishments to take necessary welfare measures in order to secure the rights of TG persons and comply with all the provisions of the act.
- Chapter VI places the obligation on educational institutions to provide education and opportunities in curricular activities to TG people, such as sports, recreation, and leisure, without discrimination.
- Chapter VII Central government under chapter VII constitutes a National Council for Transgender to exercise and perform the functions as given under the provisions of the act.
- Chapter VIII imposes a monetary penalty on those who fail to comply with the act’s obligations, as well as imprisonment for not less than six months but no more than two years.
Critical analysis of TG persons Act, 2019:
- There are numerous matters inside the act that should be critically pointed out since it seems that, on the one hand, the government is acting to protect the rights of TG people, while on the other hand, they require fulfillment of procedure, which seems like the government is making fun of the TG people. There are several instances affecting TG rights negatively, which are as follows:
- The verification of TG people done by the District screening Committee is in contradiction with the NALSA judgment.[4] In the NALSA ruling, “the principle of “self-declaration” is recognized without any medical or psychological proof, and is the only legal gender identification requirement.”
- Secondly, an “identity certificate issued’ restricts transgender people to the “third gender’ which negatively affects the right of self-determination of gender. Here, the law requires a certificate of identification to be issued by the District Magistrate to transgender people. Thus, this violates several fundamental rights under Articles 19, 21, and also 45 of the Indian Constitution and also violates the fundamental right to privacy[5] as mandated by S. Puttaswamy v. Union of [6]
- The definition of the term “transgender” under Section 4 is of an ambiguous nature. It includes “intersex” and “genderqueer” into the ambit of the term “transgender” person, which is not at all accepted by the members of the lesbians, gays, bisexuals, intersex, transgender, and queer community (LGBTQ community). Also, section 4 provides a right to legal recognition solely to “transgender” people. Since it doesn’t cover the other people in the LGBTQ community, we can presume that it doesn’t protect the rights of such associated persons who also have the right to gender identity and also gender orientation as held under the landmark judgment of Naz Foundation v. Govt. of NCT[7].
- The Act does not protect the third gender from serious sexual offenses; rather, it only protects them from discrimination. Since there is no term like “third gender” under the provisions of sexual offences under the Indian Penal Code, 1860, TG persons are often the victims of grave sexual offences. A “survey conducted by The Guardian in 2019 revealed that 70% of lesbian, gay, bisexual, and transgender (LGBT) people are sexually harassed at work”.[8] Thus, there is urgent need for safeguards for the TG persons and all others coming under LGBTQ community.
- In order to provide better health care facilities and assistance to transgender people, the act completely ignores the mental well-being of this community and their need for therapy. The act doesn’t mention anything about psychological or mental health counseling for these people. As we all know, transgender people suffer from gender dysphoria (a syndrome), which leads to the feeling of being “trapped” in the wrong body.[9]
- There is no such “official instrument of recognizing TG persons as male or female unless these people have not undergone either sex reassignment surgery or therapy.”
- 12 (3) of the Act states that a child will be placed in “a rehabilitation center only if a parent or a member of their immediate family is unable to take care of such a child.” Hence, this section doesn’t consider the physical and mental abuse faced by TG people in their childhood in their own homes.[10]
- There exist several ambiguities inside the act—as s. 5[11] states the word “prescribed” but does not lay down the procedure that is to be followed for compliance with this section. Section 5[12] of the Act also lays down that while filing an application for the issuance of a certificate, the applicant must be accompanied by documents as prescribed, but again it nowhere mentions the list of documents, making it unclear.
This wholly defeats the purpose of adopting a provision of self-perceived identity. Moreover, such procedures are often unaffordable for the majority of the population, causing economic discrimination.
Conclusion:
After the landmark judgment of NALSA by the apex court of India, the enactment of the transgender persons (protection of rights) Act, 2019 is a crucial effort made by the government of India in order to give protection to transgender people in Indian society. However, there are several points and matters on which this legislation is criticized and opposed by the LGBTQ community, but this act proves a significant revolution in the lives of transgender people.
Author(s)Name: Yamini Gupta (Devi Ahilya Vishwavidyalaya, Indore, (M.P))
References:
[1]National Legal Services Authority v Union of India (2014) 5 SCC 438.
[2]Supreme Court Observer, ‘Challenges to transgender Persons Act’ (Supreme Court Observer, 7 February 2022) <https://www.scobserver.in/cases/swati-bidhan-baruah-union-of-india-challenges-to-transgender-persons-act-case-background/> accessed 22 September 2022.
[3] Transgender Person (Protection of Rights) Act 2019, s 2(k)
[4]Swati Bidhan Baruah v Union of India (2020) Writ Petition (Civil) No. 51/2020.
[5]Manika Kamthan, ‘Need for inclusion of LGBTQIA+ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ (SCC Blog, 8 July 2022) <https://www.scconline.com/blog/post/2022/07/08/need-for-inclusion-of-lgbtqia-under-the-sexual-harassment-of-women-at-workplace-prevention-prohibition-and-redressal-act-2013/.> accessed 23 September 2022.
[6]Puttaswamy v Union of India (2017) 10 SCC 1.
[7]Naz Foundation v Govt. of NCT (2009) 160 DLT 277.
[8]Frances Perrauddin, ‘Survey Finds 70% of LGBT people sexually harassed at work’ (The Guardian, 17 May 2019) <https://www.theguardian.com/uk-news/2019/may/17/survey-finds-70-of-lgbt-people-sexually-harassed-at-work> accessed 24 September 2022.
[9]Richie Gupta & Anil Murarka, ‘Treating Transsexuals in India: History, Prerequisites for Surgery and Legal Issues’ (2009) 42(2) Ind. J. Plas. Surg. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2845370/.> accessed 24 September 2022.
[10]Ibid at 3.
[11] Transgender Person (Protection of Rights) Act 2019, s 5.
[12] Ibid.
