Everything that is wrong with the Transgender Persons (Protection of Rights) Act, 2019

Original Artwork by the author

“I’m both a man, and a woman, and yet neither a man nor a woman. I’m my own gender”[1]

Imagine living in a body which is yours but doesn’t feel like home. Imagine being identified by others as someone who is not you. What just might be an uncomfortable scenario for many cisgender people is in fact, an everyday reality for most transgender persons.

The Indian Constitution ‘safeguards’ equality to all irrespective of their sex. It has since 1950. But it took 64 long years for the Supreme Court to interpret ‘sex’ to include a person’s gender identity in its interpretation and consequently for transgenders to be recognized as a ‘third gender’ in the landmark case of NALSA v. Union of India (hereinafter, NALSA judgement).[2]

It was in the same year that the first bill on transgender rights was introduced as a private member’s bill by Tiruchi Siva, conforming to the NALSA judgement. But it was only after significant changes and lapsing of bills, that the 2019 bill was introduced and passed.

The bill was passed in Rajya Sabha after 74 members voted against the opposition motion to send the document to a select committee for deep scrutiny. It is disturbing to think that the people who are responsible for representing us are not even remotely sensitive towards an entire gender.

The day the bill was approved in Lok Sabha, is now known to be called as “Gender Justice Murder Day”.

The problems start sprouting from the very title of the Act. The vaguely conceptualized nomenclature only featuring ‘Transgender’ has been argued to be confining, ill-understanding and insensitive towards the non-binary people. An alternative suggested by the LGBTQ+ community was “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”.[3]

Further, the inability of the act to demystify the confusion surrounding transgender, intersex, transvestite, and transsexual through necessary mentions backed by correct definitions, indicates at the callow nature of the act.

In accordance to the act, ‘Transgender person’ includes all individuals whose gender does not match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), a person with intersex variations, genderqueer and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.[4]

The act put transgenders and intersexual persons under one category failing to realize that one-law-fits-all is not the humanitarian course to follow.[5]

The Act seeks to prohibit discrimination without explicitly defining what constitutes discrimination. It exclusively prohibits only nine types of discriminatory acts, ignoring the multi-dimensional concept of discrimination and painting an ostensibly burlesque portrayal of justice. The act also isn’t very descriptive on the kind of remedies available to a transgender person suffering from discrimination.

This Act went a step ahead to go against the ethos of self-perceived identity when it divulges that for the legal recognition of one’s transgender identity, one has to go through the disgustingly dehumanizing process of applying District Magistrate to acquire a certificate for registering as a transgender. There are also no clear instructions upon the failure of acquiring the certificate and the provision of appeal. The act seems to have been written with the presupposition that gender binary is the touchstone, and because a transgender person finds no place within this criterion, and thus, requires a certification for recognition.[6] This contradicts the basic tenets of the NALSA judgement.

Thereafter, if a person is to then change their preferred gender to male or female, the act while following an anachronistic approach, requires the proof of having undergone a Sex Reassignment Surgery (SRS). And as if this wasn’t sufficient, the validity of the SRS would be decided by the District Magistrate.[7] This marks another failure at a jurisprudential interpretation of the NALSA judgement as it categorically denied the sex reassignment surgery to be a prerequisite for identifying as male, female, or transgender.

The act seemingly has borrowed its definition of ‘family’ blindly from earlier instigated laws, all while greatly disregarding the nuances of the transgender community. The act here has missed a major liberalizing opportunity to extend the gamut of ‘family’ for a trans person to include their chosen family.[8] The act requires Transgender people to reside with their birth family, being neglectful of the fact that birth families are mostly the onset of violence and discrimination for most trans persons. The only provision of moving out is through the order of a competent court. The only alternative provided for this is the mention of “rehabilitation centres” with unestablished structure and nameless errors. [9]

Another complication is regarding the National Council for Transgender Persons, which is to comprise nearly 30 persons out of which, only 5 representatives come from the transgender community. These persons would be nominated by the Central Government conspicuously raising questions about the independence of the council and its ability to then question the government on various concerns.[10] There are no specifications stated for the minimum meetings to be held or about the quorum for those meeting and their decision-making abilities. Apart from having no local (state and district) councils, there also is no provision for their establishment.[11]

There is also a fragmentary mention of a complaint officer ordained to deal with complaints. This provision has been left open-ended, not even stating the process of nomination. This has subjected the level of concern to broad measures.

Another obstructive problem was birthed with the denial of reservation and the lack of affirmative action for the trans community in employment, education and most importantly, healthcare. The act sure does talk about discrimination but stays quiet on the facets of making efforts to abate it. It ceases to provide the trans community with the chance of getting their life and lifestyle out of peril and maybe uplifting themselves.

While talking about offences and their penalties, the act expounds that abuse (sexual, physical, verbal, emotional and economical) against trans persons will face punishment from 6 months to 2 years. The sentence range stays the same for the provisions of denial of access to public places, to forcibly make the trans person leave household or village. Most would agree that denial of access to a public place is NOT the same as being a victim of abuse. It’s dehumanizing to put it this way. Upon comparison with the laws laid down for the binary genders, it would be an understatement to say that the introduction of this bill has greatly let down the community it is meant for. The IPC grants imprisonment of minimum 7 years which may extend up to a lifetime sentence in cases of sexual violence against women. The act unambiguously discriminates against the trans and the Intersex persons, divesting them of basic equality and dignity. This provision is something that spells out despondency for most of the trans community.

Indian laws, in essence, have been binary. The civil and criminal laws only recognize two subcategories of gender which are binary, this act recognizes the third gender the transgender but it does not clarify whether other laws will prevail on the third gender or not.

People do not realize the gravitas of feeling alien in your own body. People who do, have been vehemently protesting against it since the inception of these partisan bills. This bill contrary to liberalizing does away with the preexisting scintilla of rights. And the rights mentioned in the act are nothing but token rights. The 2019 act patently violates the fundamental rights promised to all individuals (Right to Privacy, Freedom of expression) and the paramount NALSA judgement. The act has met with an uproar of protests for the liberation this bill since it was tabled as a bill till now, evincing that the act does everything antithetical of what it supposedly is meant to.

[1] Anwesh Sahoo, Indian artist, writer, TEDx speaker and the youngest to win Mr Gay World, 2016.

[2] NALSA v. Union of India. AIR 2014 SC 1863. Available at:  https://indiankanoon.org/doc/193543132/

[3] Ramya Kannan, ‘Why are there objections to the Transgender Persons Bill?’ The Hindu. Dec 01 (2019). available at: https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.ece

[4] The Transgender Persons (Protection of Rights) Bill, 2019.  available at:  http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf )

[5] Pooja Krishnakumar, ‘Transgender bill awaits presidential nod to become law but betrays the very community it aims to protect’ First Post. Dec 02 (2019) available at https://www.firstpost.com/india/transgender-bill-awaits-presidential-nod-to-become-law-but-betrays-the-very-community-it-aims-to-protect-drawbacks-deject-members-7725941.html

[6] Dhruva Gandhi and Unnati Ghia, ‘A Constitutional Challenge to the Transgender Persons Act in India’ Int’l J. Const. L. Blog, Dec. 27, (2019) available at http://www.iconnectblog.com/2019/12/a-constitutional-challenge-to-the-transgender-persons-act-in-india

[7] ‘A Critique Of Transgender Persons (Protection Of Rights) Bill, 2019’ Aug 05 (2019) available at https://feminisminindia.com/2019/08/05/critique-transgender-persons-protection-of-rights-bill-2019/

[8] Ibid 7

[9] Shreya Ila Anasuya, ‘The Modi Govt’s Handling of the Trans Rights Bill is Transphobia in Action’ Dec 03 (2019) available at https://thewire.in/lgbtqia/trans-rights-bill

[10] Ibid 7

[11] Tripti Tandon, Aarushi Mahajan, ‘Reclaiming Rights: Transgender Persons Bill and beyond’ Dec 04 (2019) available at http://theleaflet.in/reclaiming-rights-transgender-persons-bill-and-beyond/

Swadha Sharma from University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi

“Elasticity, Equilibrium and Elvis, how about that?”

Success! You're on the list.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: