Adam, Eve and…

Every human being in this world is created by God and has to be recognized equally.

I am what I am, so take me as I am

  – Johann Wolfgang von Goethe

‘Transgender’ is an umbrella term and is different from LGB- lesbian, Gay, Bisexual. There is often confusion relating to various concepts related to gender, sex, sexual orientation or gender expression. ‘Gender identity’ is what the mind of a person says but biological sex is what the body of a person represents. Sexual orientation means to whom a person is attracted physically and emotionally and gender expression refer to how a person wants to dress up.

A “transgender person” means a person whose gender identity does not match with the gender assigned to them at birth and includes trans-men and trans-women (irrespective of whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), persons with intersex variations, gender queers and persons having such socio-cultural identities as kinner, hijra, aravani and jogta.[1] . Hijra is a term given to intersex people, and transgender people. It is a kind of culture prevalent only in South Asian nations like Pakistan, India, and Bangladesh. Not all transgenders are hijras, it is a practice and those who practice it are referred to as Hijra. In simple words, transgender people have a gender identity or gender expression that differs from their assigned biological sex. L, G and B on the other hand deal with conflicting sexuality or sexual orientation. Intersex person means a person who at birth shows a variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from the normative standard of a male or female body.[2] Transgenders are different from LGB thus a bifurcation should be made between them.

Some transgender persons who became the first ones to achieve great things in their fields:

  1. Sathyasri Sharmila: India’s first transgender lawyer
  2. Joyita Mondal: India’s first transgender judge
  3. Prithika Yashini: India’s first transgender police officer
  4. Manabi Bandopadhyay: India’s first transgender college principal
  5. Shabnam Mausi: India’s first transgender who became an MLA
  6. Shabi: India’s first transgender soldier

Challenges Faced by Them

A transgender person has to face many challenges throughout their lives. The primary one being to accept oneself and come out of the closet to friends, family, relatives, and to the world in general. It is difficult to find a safe place for exploring their gender identity. The information available or knowledge on being transgender is not always accurate.  A little guidance or support from a family member or any close one can make a huge difference.

At every step, some hurdle has to be crossed. Whether it is education, use of washrooms or changing rooms in public or access to medical care, they have to fight for their fundamental rights. They are often subjected to harassment and bullying and have to fight for social acceptance. It is often seen that even their close ones do not accept them. Many face mental trauma and depression on an almost daily basis.

Section 377

Many historians believe that same-sex relations were not regarded as sinful in the pre-colonial era. They support their views by mentioning the sculptures at Khajuraho temples saying that it was only after British colonialism that the concept of homophobia immerged. Anal sex and oral sex (for both heterosexuals and homosexuals) was criminalized under Section 377 of the Indian Penal Code, 1861.  In 1871, the British labeled the hijra population as a “criminal tribe”.[3]

In modern times many social workers, activists and NGOs have dedicated their lives to change the condition of transgenders in this country as well as worldwide. NGO Naz Foundation was first to raise the issue of section 377. After a long legal battle, on 6 September 2018, the Supreme Court overturned its 2013 judgment in respect to section 377. The 5 judge bench- Dipak Misra, CJI; Rohinton Fali Nariman, J.; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J ruled that this section is unconstitutional as it violated Article 14 of The Constitution, which guarantees to all people “equality before the law “, Article 15 which prohibits discrimination “on grounds of religion, race, caste, sex and place of birth ” and Article 21 which guarantees “protection of life and personal liberty, thus legalising homosexuality in India.[4]  

Justice Dhananjaya Y. Chandrachud rightly said “It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity.”

The Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 commenced on 10th January, 2020 for the protection and to provide special rights to the transgender population. However, many activists, lawyers and the transgender community felt that in practice the Act would fall flat in achieving its objective. Some transgender persons also referred the passing of the bill by parliament as “Black Day” and “Gender Justice Murder Day”.[5]  Protestors even alleged that the recommendations made by the standing committee and transgender persons were neglected. Parliamentarians like Jaya Bachchan also criticized the Act. On 27 January 2020, the Supreme Court issued a notice to the central government in a petition filed by advocate and transgender rights activist, Swati Bidhan Baruah, challenging the constitutionality of the 2019 legislation as the Act is fraught with flaws.[6]

Strengths of the Act:

  • Focus is imposed on equal education of transgender students and other students. Teaching measures to meet the need of transgender students are promoted.
  • Chapter 2 of the Act prohibits discrimination against transgender persons on various grounds.
  • Section 9 prohibits discrimination in any matter related to employment.
    However, the Act is silent regarding the consequences if a person is denied employment wholly on the basis of gender identity.
  • Section 14 of the Act depicts that transgender persons are motivated towards self-employment.
  • Section 15(g) is a remarkable achievement. It provides coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons.

Loopholes in the Act:

  • The Act violates Article 14 and 21 of the Indian Constitution. In some aspects, it also violates article 19.
  • Section 2(c) of the Act defines a family as a group of people related by blood or marriage or by adoption made in accordance with the law. Practically, the family of a transgender is often different and includes a large number of members, i.e., it is not restricted to the definition in the Act. For instance, the real family of a transgender who is not accepted by her blood relations, is the transgender community.  
  • The definition of a transgender person in section 2(k) clubs the transgender persons and intersex variation persons. Thus, it wrongly assumes that all persons with intersex variation are transgender persons.
  • There are various flaws in chapter 3 of the Act. It violates the right to privacy. Certificates or some form is required to maintain a database but the regulation should ensure a humane manner for doing so. Self-identification and a medical certificate should be sufficient and nothing beyond. Swati Bidhan Baruah also questioned the need for identification or evaluation of the person by the magistrate before issuing the certificate.
  • Section 6(3) although grants right to transgender persons who have identity certificate, is silent in respect to rights of persons who do not have a certificate or who have self-attested affidavits.
  • Section 7 of the Act violates the right to freedom and privacy. After the issuance of a certificate under section6 (1), If a person wants to undergo sex reassignment surgery (SRS), he has to make an application to the district magistrate for the revised certificate. This provision creates unnecessary chaos, and the fact that the person has to depend on the magistrate to make decisions involving his own body is inhumane.
  • Chapter 4 though clearly states that for the welfare of transgender persons the appropriate government shall take necessary steps, there is no mention of any specific scheme or procedure or as to what all measures are to be taken by the government.
  • The word ‘rehabilitation’ in section 8(4) is highly objectionable and disempowering as, according to WHO, “rehabilitation is a set of interventions needed when a person is experiencing or is likely to experience limitations in everyday functioning due to ageing or a health condition, including chronic diseases or disorders, injuries or traumas”.[7] This indicates that transgender persons lack agency. Moreover, the Act is unclear as to what and how the transgender persons are rehabilitated. It is also unclear whether their consent is taken or not before sending them to rehabilitation centers. There is a scope to improve section 12(3) which grants power to a competent court to direct a person to rehabilitation if the immediate family is unable to take care of the person.
    Furthermore, the rehabilitation facility is regarded as exploitation or detention centers by the transgender community.
  • Section 18 is half-done. Even though the gravity of all the 4 points mentioned in the section is different, their punishment is the same. Moreover, there is no mention of sexual abuse or sexual offence.

Recommendations

  •  The National Council for Transgender Persons should incorporate more representatives of the transgender community or transgender members as the council is all about their rights. Moreover, no one can understand their need more than them.
  • The Act should be comprehensive. It should incorporate provision for marriage, adoption, inheritance and other personal issues of transgender persons.
  • A Transgender Commission should be established specifically for transgender persons in a similar manner as SC/ST or women or child commission.
  • A separate transgender department should be created within the Ministry of Women and Child, both of the Centre and State governments.
  • Similar to section 19 of POSCO Act, the Transgender Persons (Protection Of  Rights) Act 2019 should also make the reporting of crimes against transgender persons mandatory with penal sanctions befalling on the person who avoids.
  • The government should encourage transgender children to access all levels of education through scholarships and provide incentives to the private sector to employ transgender persons to combat their marginalization
  • School & college curricula should include learning about the LGBTQ community and their rights. This learning from a young age would ensure that no person is looked down upon.
  • Section 8 of IPC states “he” and its derivatives are used of any person, whether male or female. It should also include transgender persons. However, their treatment should be different in judicial custody due to obvious reasons.
  • Offences under IPC such as rape, stalking, sexual harassment, etc. are applicable only if the victim is female. The ambit should be widened and transgender persons and males should be included.
  • There should be a bifurcation in the 4 points mentioned in section 18 of the Act and accordingly the punishments should differ. Besides, more categories of offences against transgender persons should be added into the section. More severe punishments should be given for serious offences. Sexual offences should be specified separately.
  • The transgender community should be made more aware of the Act and their rights.

Conclusion

The life of transgender persons is like a roller coaster ride.  The society is a work-in-progress toward creating a safe and accepting environment for transgender persons. They should be empowered at every step of their lives. Even though the Transgender Persons (Protection Of Rights) Act 2019 has many flaws and falls flat, it still has successfully fought with some of the evils. If recognized correctly the defect can be easily fixed. It is evident that change doesn’t happen overnight, one evil is down with more to go.


[1] The Transgender Persons (Protection Of  Rights) Act 2019, Section 2 (k).

[2] The Transgender Persons (Protection Of  Rights) Act 2019, Section 2 (i).

[3] Martha C Nussbaum, ‘Disgust or Equality? Sexual Orientation and Indian Law’ in Martha C Nussbaum, The Empire of Disgust (Oxford University Press 2018) <http://www.oxfordscholarship.com/view/10.1093/oso/9780199487837.001.0001/oso-9780199487837-chapter-9&gt; accessed 22 May 2020.

[4] Navtej Singh Johar, ‘IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 76 OF 2016’ 495.

[5] Vijayta Lalwani, ‘“This Is a Black Day”: Activists Criticise Transgender Persons Bill Passed in Lok Sabha’ (Scroll.in) <https://scroll.in/article/906205/this-is-a-black-day-Activists-criticise-transgender-persons-bill-passed-in-lok-sabha&gt; accessed 22 May 2020.

[6] ‘Supreme Court Notice to Centre on Plea against Transgender Act, 2019 | Deccan Herald’ <https://www.deccanherald.com/national/supreme-court-notice-to-centre-on-plea-against-transgender-Act-2019-798774.html&gt; accessed 22 May 2020.

[7] ‘Rehabilitation’ <https://www.who.int/news-room/fAct-sheets/detail/rehabilitation&gt; accessed 23 May 2020.

Sharon Raju from University School of Law, Rayat Bahra University, Mohali

Editor: Sanskriti Sood

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