It was in 2014 that the Indian Courts recognized and have a status to the “third gender” in the country in the NALSA case. Therefore, this judgement came as a beacon of hope to the community. Furthermore, this judgement was a step forward to create a more inclusive and gender-sensitive India. Since, majority of the people identify as a man or woman. Thus, the Government makes most of the provisions keeping the majority in mind. Hence, in this process, it leaves out the people who identify as non-binary.
Therefore, this was the advent of legal recognition for the third gender. We were and still are far from granting them the protection and security of law they deserve.
Understanding the timeline
In 2014, a minister introduced a bill for Transgenders as a Private Member’s Bill in Rajya Sabha. It was the Rights of Transgender Persons Bill, 2014. The Rajya Sabha passed it in April 2015. However, it never became a law.
In 2016, the Government approved The Transgender Persons (Protection of Rights) Bill, 2016. But, the Bill saw protests from the trans communities pan India. It did not take into consideration the suggestions given by the community. The community felt misinterpreted. The definition of a transgender person in the Bill was, “partly female or male; or a combination of female and male; or neither female nor male”. This definition is viewing the third gender only through a binary lens. But the community represents much more than that.
The Rights of Transgender Persons Bill, 2014, was more progressive and comprehensive. Furthermore, it laid down important aspects like education of children and adult transgenders. A notable highlight is the special transgender right courts. Apart from that, the Bill also made hate speech against the community punishable. Activists favoured the 2014 Bill over the current legislation. The 2014 Bill was in line with the NALSA judgement.
The Transgender Persons (Protection of Rights) Bill, 2019 is an amended version of the 2016 one. The Bill considered the issue of the definition of transgender persons and changed it. It defines trans persons “as one whose gender does not match the gender assigned at birth. It includes trans-men, trans-women, persons with intersex variations, gender-queers, as well as persons with socio-cultural identities, such as kinnar and hijra. But it still did not exclude the certificate of identity. It assured employment, health care, education and other facilities without discrimination to the community.
The Transgender Persons (Protection of Rights) Act
The Bill was passed with 27 Amendments, whereas the community suggested 100 amendments to the same. Few aspects stand as an ironical counterpart to the NALSA Judgement.
Fundamental concerns
Violation of Privacy and Dignity
The NALSA judgement held that the transgenders have a right to self-identification. Thus, the category of “third gender” was formally introduced. At present, if a person wants to identify as a transgender, they have to go through a medical examination. They also have to attain a certificate of being transgender from the District Magistrate. Not only is this approach regressive and biased, but it is stripping someone of their dignity. Article 21 also guarantees us a right to live with dignity. In a country like ours, some social stigmas and taboos tag along with being transgender. So, many people prefer not to disclose their identity in public. Right to privacy is our Fundamental right which is being violated by this Act.
The transgender persons have a limited right to self-identification. They need external proof in the form of a certificate. This is unacceptable.
The Act states that the Medical officer must assure the correctness of change in gender done through sex-change surgery. This opens ground for subjectivity and bias on the part of the Medical Officer.
Marriage
The present Act, as well as the 2014 Bill, doesn’t provide for the marriages of trans people. Marriage holds a lot of importance as a social institution in our country. Apart from that, a need to legally name your relationship gives an assurance. In cases of asset distribution of the partners, law governing marriage, divorce, right and liabilities of the partners is a must. There are no such provisions for the trans community. They face difficulties to legalize their relationship. Even though the decriminalization of Section 377 stands as a stalwart move, we have a long way ahead.
Adoption
There’s no provision that allows transgender persons to adopt. Certain people from the community may not have the option to procreate biologically. Not allowing adoption deprives them of having children. Adoption must be available for all.
Provision for punishment in case of rape or sexual abuse
The Act makes rape or sexual abuse against transgender persons a punishable offence. But, the maximum punishment prescribed under the Act is only two years. Under the Indian Penal Code, rape is punishable with imprisonment upto seven years. Article 14 says that any distinction should be based on Intelligible Differentia. There is no such different circumstance that is prevalent in this case. Why shouldn’t an equal quantum of punishment be granted under the Act?
Positive Aspects
Apart from the above mentioned criticism, the Act has some positive for the community. The Act bars any discrimination at the workplace or educational institutions against the transgenders.
Section 8 of the Act puts a duty on the Government to take Welfare measures for the inclusion of the community. They do this by way of schemes and trying to destigmatize the approach in society.
As a grievance measure, a Complaint Officer is appointed to address any non-compliance with the Act.
For healthcare, there are separate HIV surveillance institutions. Apart from this, medical care for sex reassignment surgery and hormonal therapy.
The Act lays down that there should be a National Council for Transgenders. This is for better understanding of the issues faced by them.
Section 18 lays down the Offences against Transgender Persons. They include not allowing them the right of passage. Forcing them for bonded labour. Forcing them to leave their place of residence. The Act also makes secular, economic and physical abuse against Transpersons, an offence.
The Government has the power to make rules and also remove difficulties that arise in future.
Author’s Recommendations
● The need for experts in drafting of such legislation is a must. We need to include people from the community in the process of effective legislation.
● They should be given an unfettered right to self-identification.
● There should be more awareness about the transgender communities in India. Teaching it at school level itself helps to create an inclusive atmosphere.
● Gender sensitization training should be mandatory at an institutional level.
● Media has played a pivotal role in bringing about changes in the approach. The Gauri Sawant Ad by Vicks is one such example. It portrayed a Transgender in light of a mother. We need more such inclusive advertisements.
Further Information
You can visit the following sites and watch these videos for a better understanding of the same.
● Pros and Cons of the Act:
● Community disappointed over the Bill:
● UNDP Report:
● India’s DemiGods:
● Recognition of non- familiar ties:
● Achievers:
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