The THIRD GENDER: PROTECTION or DISCRIMINATION? A Critique of Transgender Act, 2019
Updated: Dec 20, 2021
Authored by Kushagra Kundan and Nidhi Prakriti, 2nd year students at Chanakya National Law University, Patna.
Delhi held its 12th Pride Parade last November and because being different from the norm is always a struggle, the LGBTQIA+ community has an issue to fight for every year and last year it was the Transgender Persons (Protection of Rights) Act, 2019 which has been called regressive and has faced rejection from both the transgender and intersex community.
Last year, on November 20th which is Transgender Day for Remembrance in solidarity for people murdered due to Transphobia, the bill was moved in RajyaSabha by Thawar Chand Gehlot, Minister of Social Justice and Empowerment. After almost a week, on National Constitutional Day, it was passed in the Upper House after the motion to refer it to the Select Committee and to make amends in consultation of the community was rejected. It was passed in the Lower House on the 5th of August, on the same day when the special status of Kashmir was revoked.
The first copy of such a bill was introduced in 2014 by DMK leader Tiruchi Siva, a RajyaSabha member. It was a private bill back then and was passed unanimously on April 24th, 2015. Some of the provisions of this bill were – it gave 2% reservation for admission in educational institutions and for public employment and formation of a Special Transgender Rights Court for speedy disposal of cases filed by them. It also gave a maximum penalty for hate speech against them, i.e. up to one year of imprisonment and fine. But this bill was rejected as it failed to garner support in the LokSabha afterwards. Then in 2016, the Trans Bill was again floored in the LokSabha. After much discussion and some changes made to this bill, this bill was finally approved on August 5th, 2019.
This Act saw widespread protests from the transgender community, human rights activists and students all around the country. Soon after the Act was challenged before the Supreme Court by Assam’s first transgender judge, Swati Bidhan Baruah who termed it as completely arbitrary, irrational and discriminatory. The petitioner is represented by senior advocate Anitha Shenoy and it is contended that the Act is ultra vires to the Constitution.
The definition challenge
This Act although is the revised version of the bill of 2016, the definition given for a transgender person is still not adequate. This Act defines a transgender person as “a person whose gender does not match with the gender assigned to that person at birth and this includes a trans-man and trans-woman person with intersex variations”. The definition of a transgender person is mixed with that of an intersex person. Transgender people are those who feel they were born in the wrong body whereas intersex people are those born with physical characteristics that do not conform to the gender binary. They may identify as a transgender person but the bill under the definition of the transgender person also puts intersex person thereby taking away their choice to identify as a cisgender person, which is in violation of NALSA judgement. This can lead to the extinction of intersex identity.
Although Section 4 of the Act recognizes “the right to the self-perceived gender identity of transgender persons”, the subsequent sections, i.e. Section 4 and 5 make self-identification subject to certification by the State. It says that a transgender has to make an application to the District Magistrate to get the certificate of identity. What’s more intriguing is that if the district magistrate denies a certificate to a transgender, he doesn’t need to mention the reason for his refusal. Also, the further procedure is not mentioned.
The Supreme Court in Anuj Garg vs. Hotel Association of India held that personal autonomy and self-expression is protected under Article 19 and Article 21. In 2014, in NALSA vs. Union of India, gender identity was recognized as one of the most fundamental aspects of life and that every individual has a right to self-identification of one's gender identity. It was said that the continued discrimination against the transgender community in India is contrary to the Constitution.
Also, in Puttaswamy vs. Union of India, the Hon’ble Court held that the right to privacy is a fundamental right under Art. 14, 19 and 21 and thus non-inclusion of the confidentiality clause makes the Act unconstitutional.
Moreover, Section 7 of the Act says that if a transgender wants to change their gender after the issue of the transgender certificate, the applicant has to obtain a certificate from the Chief Medical Officer of the institution where surgery was done. Then, the District Magistrate is to issue the gender certificate. Hence this Act clearly hints towards a screening procedure without using the exact words.
Equality and non-discrimination
Sections 4 to 7 of the act give rise to inequality upon the transgender individuals by imposing upon them liabilities that are not present for the non-trans individuals. The liability of certification for confirmation of one’s gender is highly insulting and humiliating in nature as it is only confined to transgender individuals. This further advertises the underbelly of discriminatory, regressive and trans-phobic mentality prevailing in the society and the societal norms in place to further strengthen such thinking. The concept of “only two natural genders” which makes “transgender” an exception, has been damaging the life and liberty of the community for years and even goes against the act’s definition of a “transgender person”. In the NALSA judgement, it was affirmed that gender identity is intrinsic under articles 19 and 21 of the Constitution. This reaffirms the fact that the Constitution puts the “transgender” on the same pedestal as the “cisgender”. Sections 4-6 of the Act make identity a conditional subsidiary to the identification process.
A right without a remedy is no right. Although the Act recognises the non-discrimination provisions against the trader individuals via Section 3, it fails to provide any remedy or punishment upon its breach. We can take the examples of Articles 17(abolition of untouchability) and 23 (deals with forced labour) of the constitution as their breach is a punishable offence in order to provide clout and weightage to the provisions. This amplifies that Constitution believes in imposing certain enforcing methods upon the private individuals when they expect them to behave in a certain way towards other private individuals.
Sec. 18 of the act which discusses the offences against transgender individuals such as forced labour, sexual abuse and violence along with their penalties, is extremely problematic and discriminatory in nature. The punishment/ penalty for such crimes is less severe when compared to the context of cisgender. This trivialises the sufferings of the transgender individuals by imposing a comparatively lighter punishment, not to forgive the extreme vulnerability of the community. This is also arbitrary in nature. Until and unless the Act doesn’t treat the transgender as “equals” and in a “non-discriminatory” fashion, the community will be reduced to a subclass of human existence.
Family and Kinship
The Act fails to recognize the “non-acceptance” of transgender individuals within the family they are born into. It also proves to be a site of violence and exploitation for them. The transgender community over the years has developed non-biological social security kinship in the form of gharanas, which are an apprenticeship based model and run on the basis of the relationship between “gurus” and “chelas”. They provide a safety net to transgender individuals who have left or have been forced to leave their houses. They are important part of their culture as it helps them in acceptance of their gender. The act doesn’t pay heed to this but instead talks only about rehabilitation centres where transgender individuals are likely to face discrimination and exploitation as they don’t meet the inherent gender norms of society.
Apart from a number of unconstitutional provisions, the beneficial provisions of the Act are inadequate to address the pertinent issues of the transgender community. Thawar Chand Gehlot in his speech in RajyaSabha himself mentioned that according to the census 2011, there are more than 4 lakhs transgender people in the country and yet this bill allots a measly budget of 1 crore rupee for their policies. In NALSA judgement, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class” and thus entitled to reservation under Article 15 and 16 of the constitution. The Act has no mention of any such affirmative action. The Act does not contain express provisions for the right to healthcare for transgender persons apart from the insurance scheme in Section 15.
Hence, we conclude that this Act with so many lacunas by no means effectively guarantees protection from harassment, inequality and discrimination to the community. While some challenges are elementary, others are more abstruse and require nuanced engagements by the Court. However, these engagements only keep the spirit of law alive by presenting an opportunity in an egalitarian democracy to evolve on social rights through progressive jurisprudence. Nevertheless, this Act serves as a reminder that along with progressive jurisprudence, we also need progressive legislation in order to have profound implications on the lives of the marginalized and oppressed.