An Insight Into the Latest Development on the Third Gender

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This article aims to highlight the nuances of the Draft Transgender Persons (Protection of Rights) Rules, 2020. The Government released them on April 18th, 2020. There was a surge of public pressure on the government. Thus, there is an extension in the last date for submission of comments from 30th April to 18th May. Before delving into the rules in detail, let’s have a quick recap of their journey to equality in India, so far.

It’s said that “Sometimes the people around you won’t understand your journey.” But the fact is that they don’t need to, as it’s not for them. The course of the transgender people has had a tumultuous history. The society, without knowing much about them, has shunned and revered these people. 

Transgender can be used as an umbrella term for persons whose gender identity, gender expression, or behaviour does not conform to their gender assigned at birth.

These people have lived a life of exclusion for centuries now. With the advent of British rule in India, their public presence saw a steep downfall. Society considered them as deviance to the ‘colonial rule’. Later, section 377 of the Indian Penal Code, 1860, criminalized all penile non-vaginal sexual acts between persons. The British legislated for their surveillance and control under the Criminal Tribes Act, 1871 (CTA). 

These legislative moves were coupled with other social actions. This showed the government’s propaganda to remove these people from the visible social category. The Government repealed CTA after independence. But the provision under IPC stayed as a blot on the law books of India until recently. 

THEIR FATE SWINGED IN THE HANDS OF THE JUDICIARY

Naz Foundation v. Govt. Of Delhi

The Delhi High Court, in 2009, through this case, decriminalized homosexuality. The judgment highlighted the inherent injustice in section 377. The court held the section to be violative of articles 14, 15, and 21 of the Constitution. Further, it legalized consensual sex between two homosexuals above the age of 18. But, the happiness that flowed from this watershed moment was short-lived.

Suresh Kaushal v. Naz Foundation

The appellant filed an appeal in 2014, against the Naz foundation judgment. The Supreme Court overturned the decision of the 2009 case. It held that judgment to be “unsustainable”. This is because it affected only a ‘minuscule’ population in India. The Court considered it devoid of any constitutional infirmity. 

Navtej Singh Johar v. Union of India

In 2018, a five-judge bench of the Supreme Court overruled the Suresh Kaushal ruling. It upheld the validity of section 377. This was because it followed a minuscule minority rationale. This rationale is impermissible by the Constitution. The Court held that the judgment did not recognize the violation of fundamental rights. The Court safeguards ‘constitutional morality’ and not ‘popular morality’. Thus it partially ruled down section 377. 

NALSA v. Union of India

The judiciary further swung the pendulum of rights in favour of the transgender people in the year 2014 with this judgment. In this case, the Court recognized them as a third gender. It upheld their rights under the Constitution. The apex court stated that-

“Recognition of transgender as a third gender is not a social or medical issue but a human rights issue. Transgender are also citizens of India. The spirit of the Constitution is to provide equal opportunity to every citizen. To grow and meet their potential, irrespective of caste, religion or gender.”

The legislature passed Transgender Persons (Protection of Rights) Act, 2019 after a myriad of deliberations. It aimed for the protection of their rights and welfare. It gives recognition to the right to self-perceived gender identity. The most criticized aspect of the act is the need to get a certification from the District Magistrate, for the same. 

CRITICAL APPRAISAL OF THE ‘DRAFT RULES, 2020’

The draft rules stand as a sequel to the much-criticized parent act. The rules supplement the act and help in giving a broader picture. Spread over 12 rules this draft is being criticized for myriad reasons. Some of them being-

  • The need to submit a report from a psychologist under rule 4 is against the goal of the Act and the NALSA judgment. Both of them recognized and guaranteed the right to self-perceived gender identity. Further, the rules are devoid of any least qualification required for the psychologists. The least training that the public servants should undergo is also not dealt with. This is imperative to appreciate the issues of gender identity and sex characteristics.
  • Rule 6 poses another problem by mandating the issue of revision certificates. This is in cases where a transgender person undergoes a sex-change surgery. If this provision becomes mandatory, it would lead to a tedious certification procedure. They already have to undergo this procedure under rules 3-5 and section 4&5 of the parent Act. Thus the Act should do away with this mandate.
  • Rules 8 & 9 when read together bring out an inherent lacuna in the drafting. The former fails to give grounds for rejection of an application. It thus bestows wide discretionary power in the hands of the District Magistrate. The latter also fails to state who has the appellate authority in case of appeals. 
  • Rule 10(5) is the most fretted of all provisions. It provides for the establishment of rehabilitation centres for transgender people. But it omits to state the procedure, person, and grounds on which the intake is to take place. The government must meet the irregularity of these rules to ensure smooth functioning.
  • The most blatant error is in Form 5 & 6 which deals with ‘form of identity card’. Like the parent act, the rules have also conflated intersex children as ‘transgender’. This shows the egregious attitude of the legislature to converge; ‘gender identity’ which is a social role with ‘sex’ which is a biological role.

AUTHOR’S NOTE

Between the tussle for rights, equality, and dominance, the third gender remains forgotten. These people have for centuries lived on the fringes of society. Their identity and rights have been subject to the will of the state administration. But, now it’s time to take theory into practice. As per a report, these people are one of the worst-hit communities by the current pandemic.

Some other general concerns also need consideration. The present rules are regressive. They are against the notion of self-identification laid out in the NALSA judgment. There was no urgency to release these rules amidst a pandemic. The legislature released the parent Act last year. Since, it had already caused turmoil due to its regressive and problematic nature. Furthermore, the legislature has failed to follow its own pre-legislative consultation policy. The policy gives at least 30 days for the submission for comments. Though the government has postponed the date from 30 April to 18 May, we cannot ignore this blunder.


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