Author : Hrishikesh Bhosale, Student at Dr. D. Y. Patil Law College, Pimpri, Pune
The Transgender Person (Protection of Rights) Act, 2019 was passed by parliament on 26th November 2019 and got assent from the President on 5th December 2019. The Act has been vehemently opposed by the trans community as they claim the Act violates the fundamental rights guaranteed to them by our constitution. The central objective of this paper is to legally scrutinize the newly enacted legislation. The paper does not intend to misrepresent or appropriate transgenders but only evaluate the said legislation from a legal perspective with a bona fide intention by juxtaposing The Transgender Person (Protection of Rights) Act, 2019 with the landmark NALSA judgment. Critically peruse the advanced legislation and precedent judgement and examine whether doctrine of precedent has been followed. The paper also analyses The Transgender Person (Protection of Rights) Rules, 2020 notified on 25th of September 2020 to critically analyse it’s legality and then infer to a substantial conclusion.
Keywords: Transgender, Trans Act, Queer, NALSA Judgement.
The ostracisation of the LGBTQIAP+ community in our heteronormative society is axiomatic. The queer community had borne the brunt of heinous atrocities, callous discrimination and socio-political exilement from ages. It’s 21st century nonetheless, queer community has to struggle for recognition of their civil rights. The exigency to recognize their rights and make provisions to ameliorate their plight is pivotal. On 15th April 2014 in the landmark judgment of National Legal Services Authority v. Union of India, The Supreme Court recognised the transgender as the ‘third gender’ conferring the right of self-identification. It identified transgender as socially and economically backward class and thus, directed states to make welfare schemes for their upliftment, may it be reservation in educational institutions or public appointments. It also emphasized to make public awareness about the transgender so that the prejudice against them is extirpated. Tersely, The Supreme Court ensured that transgender remain beneficiaries of state policies de jure as well as de facto. In accordance with the Supreme Court’s direction the Centre enacted The Transgender Persons (Protection of Rights) Act, 2019 on 26th November 2019 and got assent from the President on 5th December 2019. The paper intends to juxtapose the said legislation (The Transgender Persons (Protection of Rights) Act, 2019) with the NALSA Judgment to peruse whether the advanced legislation is on a par with precedent judgement in accord with the Doctrine of Precedent and also evaluate the legality of The Transgender Persons (Protection of Rights) Rules, 2020.
PROVISIONS OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019.
- Section 2 (k) of the said Act defines, “transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
- Section 3 of the said Act deals with prohibition on denial, unfair treatment, discontinuation and discrimination in educational establishment, employment institutions, healthcare services, public places which are accessible to general public, purchasing/renting any property etcetera.
- Section 4 (1) explains, A transgender person shall have right to be recognized in accordance with the provisions of the said Act. Section 4 (2) states that, A person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.
- Section 5 & 6 deals with making an application to the District Magistrate to issue certificate of identity and following the procedure as may be prescribed respectively.
- Section 7 (1) elucidate if a transgender person had undergone a surgery to change either male or female, such person may make an application to the District Magistrate to issue a revised certificate by submitting the certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery. Section 7 (2) explains that, the District Magistrate on receipt of an application submitted along with the certificate issued by the Medical Superintendent or Chief Medical Officer after being satisfied with the correctness of the such certificate issue certificate indicating change in gender in such a form as may be prescribed.
- Section 8 in general deals with the appropriate measures to be taken by government, where Section 8 (1) & (3) deals with appropriate steps to be taken to secure full and effective participation of transgender persons i.e. their inclusion in society and to formulate welfare schemes and programmes which are transgender sensitive, non-stigmatising and non-discriminatory respectively. Section 12 elucidates that no child shall be separated from parents on the grounds of him being a transgender except on an order of a competent court, in the interest of such child.
- Section 13 states that, the State shall provide inclusive education and opportunities for sports, recreational activities to transgender persons without discrimination on an equal basis with others in every educational institution funded or recognised by the appropriate Government.
- Section 15 deals with (a) Setting up separate human immunodeficiency virus Sero-surveillance Centres (b) Provide for medical care facility including sex reassignment surgery and hormonal therapy; (c) Pre & Post sex reassignment surgery and hormonal therapy counselling, (d) bring out a Health Manual related to sex reassignment surgery in accordance with the World Profession Association for Transgender Health guidelines, (e) Reviewing medical curriculum and research for doctors to address their specific health issues; (f) Facilitating access to transgender persons in hospitals and other healthcare institutions and centres; (g) Provision for 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.
- Section 16 (1) empowers the Central Government to constitute a National Council for Transgender Persons. Under Section 16 (2) (g) National Council should consist five representatives from the transgender community who will be nominated by the Central Government.
- Section 11 deals with designation of a person in every establishment to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act. and Section 18 (d) states that whoever inflicts physical, sexual, emotional, verbal, and economical abuse upon a transgender person shall be liable for imprisonment not less than 6 months which would be extendable to 2 years with fine.
CRUX OF THE NALSA JUDGMENT
Tenets laid down by Justice K. S. Radhakrishnan in NALSA Judgment are given as follows :
- Paragraph 7 explains that, the Right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India and thus, transgender persons is afforded with the right of choice to determine whether to opt for male, female or transgender classification.
- Paragraph 20 elucidated that, the Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bisexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are different concepts. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.
- Paragraph 21 mentioned United Nations as an instrument advocating the protection and promotion of sexual minorities including transgender. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks.
- International Commission of Jurists and the International Service for Human Rights on behalf of group of human rights organizations, took project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to State’s human rights obligations. This group of human rights experts meticulously discussed and drafted the principles in a meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6 to 9 November, 2006. Thus, the Yogyakarta principles were adopted unanimously. These Yogyakarta Principles address a broad range of human rights standards and their application to issues of Sexual Orientation & Gender Identity. Yogyakarta Principles include,
- a) The Right to the universal enjoyment of human rights
- b) The Right to equality and non-discrimination
- c) The Right to recognition before the law
- d) The Right to life
- e) The Right to privacy
- f) The Right to treatment with humanity while in detention
- g) Protection from medical abuses
- h) The Right to freedom of opinions and expression
- Paragraph 45 explicated that apart from social exclusion Transgender people are subjected to blatant discrimination in healthcare, education and employment. A study conducted by United Nations Development Programme (UNDP – India) submitted report that there has been notable surge in (HIV) Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) among Hijras/transgenders population. It is also reported in recent studies that HIV prevalence among Male sex workers (MSM) population was 7.4% against the overall adult HIV prevalence of 0.36%. Whereas in Hijras/TG women prevalence of HIV is indicated very high from 17.5% to 41%. Study conducted by NACO also highlights a pathetic situation. Report submitted by NACI, NACP IV Working Group Hijras TG also indicated that transgenders are extremely vulnerable to HIV. UNDP based on it’s report made recommendations both transitory as well as long-term. Some recommendations are as follows,
- a) Establishment of HIV sentinel sero-surveillance sites for Hijras/TG at strategic locations, provide financial support for the formation of CBOs run by Hijras/TG; and build the capacity of CBOs to implement effective programmes.
- b) Address the structural determinants of risks and mitigate the impact of risks. For example, mental health counselling, crisis intervention (crisis in relation to suicidal tendencies, police harassment and arrests, support following sexual and physical violence), addressing alcohol and drug abuse.
- c) Train health care providers to be competent and sensitive in providing health care services (including STI and HIV-related services) to Hijras/TG as well as develop and monitor implementation of guidelines related to gender transition and sex reassignment surgery (SRS).
- d) Clarify the ambiguous legal status of SRS and provide gender transition and SRS services (with proper pre and post operation/transition counselling) for free in public hospitals in various parts in India.
- e) Implement various settings and mass media awareness to extirpate stigma and discrimination prevalent in general public.
- f) Develop action steps toward taking a position on legal recognition of gender identity of Hijras/TG need to be taken in consultation with Hijras/TG and other key stakeholders to confer them with basic civil rights like right to vote, right to contest elections, right to education, inheritance rights, marriage and child adoption etc.
- g) Formulate Social Welfare Schemes to address the basic needs of Hijras/TG including housing and employment needs.
- h) Ensure greater involvement of vulnerable communities including Hijras/TG women in policy formulation and program development.
- Paragraph 47 and 51 explains that India has to follow International Conventions under principle of comity of nations. Article 1 of the Universal declaration on Human Rights, 1948, states that all human-beings are born free and equal in dignity and rights. Article 3 of the Universal Declaration of Human Rights states that everyone has a right to life, liberty and security of person. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights provide that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534 and Tractor Export v. Tarapore & Co. (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR 391. In the case of Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360, the Court applied the above principle in respect of the International Covenant on Civil and Political Rights, 1966 as well as in connection with the Universal Declaration of Human Rights. Such covenants can be used by the Courts as an aid to interpret statues by applying Doctrine of Harmonization.
- In Paragraph 50, Article 253 of the Constitution of India states that the Parliament has power make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Under this article the parliament is empowered to make any legislation in consonance with International Conventions.
- In Paragraph 52, Article 51(c) of the Directive Principles of State Policy, which falls under Part IV of The Indian Constitution states that, The State shall endeavour to foster respect for international law and treaty obligation in the dealings of organised peoples with one another.
- Paragraph 69 reiterated Article 21, as indicated, guarantees the protection of “personal autonomy” of an individual. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 (paragraphs 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
- Paragraph 70 enunciated that, Self-identified gender can be either male or female or a third gender. Hijras/Transgender are identified as persons of third gender and are not identified either as male or female. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Thus, giving them legal recognition of Third gender.
The term Transgender has been defined in The Transgender Persons (Protection of Rights) Act, 2019 henceforth referred as “The Trans Act, 2019” under Section of 2(k) of the Act it states that, A transgender person means a person whose gender does not match with the gender assigned to that person at birth which includes trans-man/trans-woman, people with intersex variations, genderqueer and person belonging to socio-cultural identities like kinner, hijra, aravani and jogta. Paragraph 20 of the NALSA judgment explains gender identity and sexual orientation as different concepts. Each person’s self-defined sexual orientation and gender identity is integral to their personality as one of the most basic aspects of self-determination, dignity and freedom. Thus, conflating intersex people with transgender is illogical as gender identity and sexual orientation are two different things. Not all transgender are intersex, not all intersex are transgender.
According to Article 253 of the Constitution, Parliament has the power to make any law for the whole or any part of territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made by any international conference, association or body. In the case of Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360 Supreme Court emphasised that India is a signatory to the International Covenant and Article 51(c) of the Constitution also obligates the State to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. Thus reinforcing doctrine of comity of nations. Considering the above case law in consonance with doctrine of precedent, India is bound to abide by international laws and rules framed for gender equality which includes Article 1, 3, 5 & 6 of the Universal Declaration of Human Rights, 1948 which states positive right that all human beings are born free and equal in dignity and rights, the inherent right to life, liberty and security of person and negative right that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 29 principles laid down in Yogyakarta principles which includes The Right to the universal enjoyment of human rights, The Right to equality and non discrimination, The Right to recognition before the law, The Right to life, The Right to privacy, The Right to treatment with humanity while in detention, Protection from medical abuses, The Right to freedom of opinions and expression etc.
Paragraph 69 of the NALSA judgement elaborates Article 21, guarantees the protection of “Personal autonomy” Of an individual. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 Supreme Court held that personal autonomy includes both the negative right of not to be subjected to interference by others and the positive right of individuals to make decisions about their life, to express themselves. Self determination is integral part of personal autonomy and thus self determination falls under the realm of personal liberty guaranteed under Article 21. Section 4(1) of the Trans Act states that a transgender shall have right to be recognized in accordance with provisions of the Act. Section 4(2) states that person recognised as transgender according to Section 4(1) shall have a right to self-perceived gender identity. However Section 5 & 6 deals with making an application to the District Magistrate to issue certificate of identity. Section 7(1) states that a transgender who had underwent surgery may make an application to the District Magistrate to issue a revised certificate by submitting the certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery and Section 7(2) states that District Magistrate on receipt of an application submitted along with the certificate issued by the Medical Superintendent or Chief Medical Officer after being satisfied with the correctness of the such certificate issue certificate indicating change in gender. Here Section 4 (1) & (2) is not only inconsistent with Section 5, 6 & 7 but it’s also diametrically opposite to the NALSA judgment. In NALSA judgment paragraph 69 it has been mentioned explicitly that Article 21 guarantees Personal Autonomy i.e. The right of self determination. Therefore there arises no necessity of intervention of neither District Magistrate nor Chief Medical Officer to issue certificate of gender identity. This is unconstitutional not only because it’s in contrariety with the NALSA judgment, violating doctrine of precedent with no regard to principle of stare decisis but also it’s a violation of Article 1, 3 of Universal Declaration on Human Rights 1948 and Article 17 of International Covenant on Civil and Political Rights, 1966 (ICCPR) along with Principle 1, 2 & 18 of Yogyakarta Principles. Thus violating doctrine of comity of nations by disregarding international covenants to which India is signatory.
Section 12 of the Trans Act, states that no child should be separated from his parents on the grounds of him/her being a transgender except on an order of a competent court, in the interest of such child. Here, If the parents are abusive, the child have no other option but to cohabitate in an abusive environment. Though this is a contingency, it’s possibility cannot be denied and if such a case arise there’s no legal provision within the said legislation for the child to leave that abusive environment. According to research conducted by Indian Psychiatric Society South Zonal Branch it was found that 31% percent of transgender persons in India end their life by committing suicide, and 50% of them have attempted for suicide at least once before their 20th birthday. The statistics are horrendous and it’s often the abusive relationship between child and parents which invokes suicidal tendencies among the children. The legislation neither recognizes chosen families nor acknowledges the traditional Guru-Chela relationship in local trans communities. Section 3 deals with prohibition on denial, unfair treatment and discrimination in educational establishment, employment institutions, healthcare services, public places which are accessible to general public, purchasing or renting any property etc. Prohibition of discrimination on the basis of sex is enshrined in Article 15 of the Constitution and Principle 15 of Yogyakarta principles i.e. the right to adequate housing, which includes protection from eviction, without discrimination on the basis of sexual orientation or gender identity. Nevertheless, to ensure that discrimination is prevented it is necessary to build infrastructure which is congenial to the queer community for instance gender neutral/unisex toilets, hostels, public dressing rooms etc. Necessary changes should be made taking queer community’s consultation. Inclusive education should not only be confined to liberating transgenders but also to ensure that basics of gender and sexuality along with transgender history is included in curriculum. For example in U.S.A Illinois became the fourth state to mandate teaching LGBT history, after California, New Jersey, and Colorado.
Section 13 of the Trans Act, deals with providing inclusive education and opportunities for sports, recreational activities to transgender persons without discrimination in all educational institutions funded and recognized by government. Implementation of this clause is essential as right to education is fundamental right guaranteed under Article 21A of our Constitution and Principle 16 of Yogyakarta principles. In paragraph 60 of the NALSA judgment, Court acknowledges that Transgenders have been systematically denied the fundamental rights of Article 15(2), 15(4) & 16(2) and recognize them as socially and educationally backward class (SEBC) of citizens guaranteed under Article 15(4) thus making them legally entitled and eligible to get the benefits of SEBC. Directing the states to take affirmative action for adequate representation under Article 16(4). Now whilst making provisions of reservation for gender minorities, hierarchy within the gender minorities should be taken into consideration and weightage distribution should be based upon that hierarchy i.e. the privileged and marginalised within the gender minorities. In the words of Dr. B. R. Ambedkar, The weightage taken from the majority should be distributed among the minorities in inverse proportion to their social standing and economic position so that minority which is large and which has better social and economic standing gets lesser amount of weightage than a minority whose numbers are less and whose economic and social position is inferior to that of the others. When dealing with giving opportunities in sports it’s necessary that separate categories have been made like Men’s, Women’s team in cricket, football, hockey etc or different weight categories in wrestling and boxing for men and women. This distinguished categories should be made right from zonal to national level.
Paragraph 45 of NALSA judgment explicates keeping social exclusion aside, transgender face blatant discrimination in health care, employment and education. Study conducted by United Nations Development Programme (UNDP – India) submitted a reported in December, 2010 that there has been surge in HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) among Hijra/transgender population. HIV prevalence in male sex workers (MSM) was 7.4% against the overall adult HIV prevalence of 0.36%. Whereas HIV prevalence in Hijra/transgender women was axiomatically high from 17.5% to 41%. This statistics are 10 years old and it’s predicted that situation has only exacerbated over the years. The UNDP in its report has made some crucial recommendations which include, 1) Establishment of HIV sentinel sero-surveillance sites for Hijras/TG at strategic locations, provide financial support for the formation of CBOs run by Hijras/TG. 2) Address the structural determinants of risks and mitigate the impact of risks. For example, mental health counselling, addressing alcohol and drug abuse. 3) Train health care providers to be competent and sensitive to provide health care services to Hijras/TG from HIV, STI related services to gender transition and sex reassignment surgery (SRS). 4) Clarify legal status of SRS and provide free pre/post operation/transition services in public hospitals across India. 5) Implement measures to reduce stigma and discrimination through mass media, formulate social welfare schemes and include transgender communities in policy formation etc. Section 15 (a), (b), (c), (d), (e), (f) and (g) of the Trans Act deals with Setting up separate human immunodeficiency virus sero-surveillance centres in accordance with the guidelines issued by National AIDS Control Organization, Provide medical care facility including sex reassignment surgery (SRS) and hormonal therapy (HT), Pre and post SRS and HT counselling, Bring out a Health Manual related to SRS in accordance with World Profession Association for Transgender Health (WPATH) guidelines, Review medical curriculum and research for doctors to address specific health issues, Facilitate access to transgender person in hospital and healthcare institutions and Provision for coverage of medical expenses by comprehensive insurance scheme for SRS, HT, laser therapy or other health issues of transgender person respectively. It is necessary that applicability of the legislation is effective, as the ground reality is always otherwise. It must be ensured Section 15 (e) is implemented efficaciously as it deals with reviewing medical curriculum and research for doctors. Research is crucial to explore science and assuage the stigma for instance In the mid-1990s, Dick Swaab of the Netherlands Institute for Neuroscience, a pioneer in the neuroscience underlying gender identity along with his group examined the postmortem brains of six transgender women and reported that the size of the central subdivision of the bed nucleus of the stria terminalis (BSTc or BNSTc), a sexually dimorphic area in the forebrain known to be important to sexual behavior, was closer to that of cisgender women than cisgender men. This extirpates myths and misconception people have regarding transgenderism and thus, it’s exigent that government provides grant in aid to conduct research so as to explore new horizons in medical sciences and debunk myths and stigma associated with it.
Trinetra Haldar Gummaraju, a transwoman and medical student augured that Indian medical fraternity lacks medical training to deal with trans health to date. She also emphasized on pathologization of trans and queer people in medical textbooks, syllabus and even in the field of psychiatry. The Trans Act fails to legally ban conversion therapy and cosmetic surgery on intersex infants. On 12 May 2020 Anjana Harish, a 21-year-old college student committed suicide as she was subjected to conversion therapy by her family who purported to “cure” her bisexuality. Conversion therapy are inhumane practices which can include forced counselling, medication to electroconvulsive therapy and hormonal castration. All of these practises are coerced upon trans and queer individuals to alter their sexual orientation which is not only unscientific but also illegal. It is blatant violation of Article 21 which includes right to life, right to privacy as well as right to personal autonomy i.e. right to self determination. It is also violative of Principle 4, 5, 6 & 10 of Yogyakarta Principles and Article 5 of Universal Declaration of Human Rights, 1948. In accordance with Constitution and aforementioned International Covenants the government should safeguard the human rights of transgender. Thus, criminalization of conversion therapy and cosmetic surgery on intersex infants is of utmost importance.
Section 16 of the Trans Act, deals with the formation of National Council for Transgender Persons. Section 16 (2) (g) states that council should consist of five representatives from the transgender community, nominated by the Central Government which doesn’t even comprise 50% of total number of members in the council. What one needs to understand here is under representation of trans individuals in the matters dealing with transgender issues and over representation of cisgender individuals with zilch knowledge about the plight of being a transgender in an endogamous & heteronormative society of ours. Vikramaditya Sahai, A Trans activist portended that “Trans persons, the Trans Act seems to say, are best represented by experts, not by themselves.” This is a crucial caveat as the ultimate consequence of cisgender representing transgender is appropriation and eventual deprivation of the transgender community from being represented ad infinitum. Pinkwashing is an emerging challenge in politics. Progressive politics shouldn’t be mere tokenism with nominal representation of trans community but their substantial representation should be ensured. Thus, It is essential that National Council for Transgender Persons consists majority of transgender individuals and in that representation it’s pivotal that individuals from all sections of society are represented adequately i.e. from the privileged caste to marginalised caste. Since Indian social structure is extensively diverse and caste is it’s defining factor to determine social and economic standing of an individual.
Section 11 of the Trans Act, deals with designation of a person in every establishment to be a complaint officer to deal with the complaints relating to violation of the provisions of Trans Act. Few things to consider regarding filing complaints, interrogation and incarceration of trans individuals. In Sheela Barse v. State of Maharashtra AIR 378, 1983 SCR (2) 337 Court ordered there should be different sections of male and female prisoners and When interrogation or investigation is conducted of a female suspect, it should be carried in the presence of female police only. Things to delineate here is distinguishment made between male and female prisoners and the ways prescribed to deal with them differently like only female officer can search female suspect. Since, NALSA judgment has identified transgender as third gender there need to be appointment of officers who are transgender and only they should be allowed to search suspects who are transgender. In addition to this formation of separate cells for transgender. In the Trans Act there should have been provisions regarding formation of different cells, appointment of transgender officers and allowing only transgender officers to search suspects who are transgender, directing to all states but there’s no such provision. Section 18 deals with offenses and penalties. In Section 18 (d) it is elucidated that whoever inflicts physical, sexual, emotional, verbal, and economical abuse upon a transgender person shall be liable for imprisonment not less than 6 months which would be extendable to 2 years with fine. Punishment for rape under Section 376 of IPC is imprisonment upto 10 years which may extend to lifetime along with fine. There might be a contention that purview of IPC operates only when victim is female and perpetrator is male but in Anamika v. Union of India and Ors, Delhi High Court asserted that Section 354A of IPC is applicable to transgender as well. Extending the ambit of IPC. Punishment enacted in section 18(d) of the Trans Act, is quantitatively inconsistent and inadequate when compared with section 376 of IPC on no reasonable grounds. Thus, flagrant violation of Article 15 of the Constitution.
CRUX OF THE TRANSGENDER PERSON (PROTECTION OF RIGHTS) RULES, 2020
According to New Rules,
1) A Transgender person under Rule no. 3 can make application to District Magistrate seeking certificate of identity. Application can be made by post or in person till online facilities are made available by responsible state government. In case of minor, parents or guardians can make an application as in form 1.
2) Rule no. 4 deals with the procedure to issue certificate of identity by District Magistrate on basis of (i) An application form, (ii) An affidavit declaring themselves to be transgender, (iii) Report from a psychologist of a government hospital (iv) Applicant’s residence for continuous period of one year as on the date of the application. Prescribed under section 6 of the Trans Act, 2019. According to Rule no. 5 Certificate of identity shall be issued within 60 days of receipt of application along with necessary documents by District Magistrate. The DM shall concurrently issue a transgender identity card as in form 5.
3) Rule no. 6 gives the procedure for issue of certificate of identity for change of gender under section 7 of the Trans Act, 2019. If a transgender person undergoes surgery to change gender either as a male or female should submit application (form 1) along with a certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution where person was operated for the said surgery to the District Magistrate to issue of a revised certificate of identity under section 7. The DM shall verify the authenticity of the medical certificate. Under Rule no. 6 (3) The applicant must be resident under the jurisdiction of District Magistrate for continuous period of one year as on the date of the application.
4) According to Rule no. 7 the District shall issue to the applicant seeking change in gender a revised certificate of identity as in form 4 indicating the gender of such applicant as male or female. The revised certificate shall be issued within 15 days of it’s receipt.
5) According to Rule no. 8 the District Magistrate shall communicate rejection of application made under Rule no. 4 or 6 with the reason or reasons of rejection.
6) The applicant shall have the right to appeal within 30 days from the date of Intimation of rejection of application to the appellate authority as designated by the appropriate Government for a final order.
7) Rule no. 10 & 11 deals with welfare measures in education, social security, health etc of transgender person and National Institute of social defence as Secretariat to the National Council. The central government shall provide grant in aid to National Institute to social defence to provide secretariat assistance.
8) According to Rule no. 12 if an applicant makes an application under rule 3 with an intention to falsely obtain transgender status shall be liable to prosecution under penal laws of the country.
After first draft issued in July faced backlash from the Trans community New Rules were notified on 25th of September 2020. Few things to be taken into consideration after analysing new rules, the scrutinization of individuals i.e. to reckon their authenticity of being transgender by Medical Superintendent or Chief Medical Officer and District Magistrate has been emended. Now the transgender individuals have to take a report from a psychologist from government hospital and submit it to district magistrate in order to get certificate of identity according to Rule no. 4 (1). This is still ultra vires to the fundamental right of self determination guaranteed under Article 21 as well as tenet of personal autonomy laid down in NALSA judgment. Mere shifting the scrutiny of trans individuals from Medical Superintendent / CMO & DM to psychologist of government hospital doesn’t make it justifiable. When the right to determine one’s own gender identity has been safeguarded by Constitution under Article 21, subjecting one’s identity to scrutinization undermines the fundamental right of self determination. For instance, a cisgender person does not require any report from psychologist to claim to be cisgender. His/her mere assertion and manifestation is enough to consider him cisgender then why do onus probandi is only on trans individuals to prove their authenticity to consider them as transgender? According to 2011 Census total number of transgenders in India is 487,803. Some trans activists estimate the de facto number must be even higher than the number on record. According to the National Human Rights Commission, as of 2019 there are 898 psychologists serving in government and private hospitals whereas the demand for clinical psychologists is 20,250. Obtaining report from a psychologist from government hospital to identify an individual as a genuine transgender is not only ultra vires to Constitution and Supreme Court’s decree but also pragmatically not feasible. If government’s adamant stance to verify authenticity of transgenders is to prevent misuse of their identity, It should enforce stringent laws for person who fraudulently impersonates as transgender. Denying the fundamental rights of trans individuals in order to ensure their identity is not misused is illogical and arbitrary. Rule no. 4 (2) & 6 (3) also states the prerequisite of applicant’s residence for continuous period of one year under the jurisdiction of District Magistrate as on the date of the application. The reason of this rule is obscure. The transgenders community is subjected to social ostracization among which denial to get a house precedes every kind of discrimination. If trans individuals had been forcefully evicted time and again it’s not possible for them to have a permanent address. It’s arbitrary to deny them certificate of identity on basis of failure to reside incessantly on the same address for one year. Thus, the aforementioned rules needs to be amended immediately.
Considering the plight of trans community there’s indeed dire need for both, inclusive and exhaustive legislations for transgenders but what’s more important is transgenders should be beneficiaries of the legislation and not victims of it’s red tapism. After a detailed analysis of the The Transgender Persons (Protection of Rights) Act, 2019 and The Transgender Person (Protection of Rights) Rules, 2020. This paper infers to the conclusion that, The Trans Act, 2019 and it’s Rules notified in 2020 undermines the right of self determination. The right of self determination ipso facto implies personal liberty and personal autonomy as guaranteed under Article 21. Intervention of a third party to determine or verify one’s gender identity may it by District Magistrate, Medical Superintendent/Chief Medical Officer or Psychologist is violation of Article 21 of Constitution. It’s also in contrariety with International Covenants to which India is signatory like Yogyakarta Principles and Universal Declaration of Human Rights, 1948. The Trans Act also fails to legally ban conversion therapy and cosmetic surgery on intersex infants which by nature are violative of Article 21 i.e. Right to life and personal liberty. Section 18 (d) of the Trans Act is quantitatively inconsistent and inadequate in terms of punishment when compared with Section 376 of IPC on no reasonable grounds. Thus, flagrant violation of Article 15 of the Constitution. The inconsistency of Trans Act, 2019 when compared with the NALSA judgement is aberration from Doctrine of Precedent with no regard to Principle of Stare Decisis. It is also non-compliant with International covenants breaching Doctrine of comity of nations. The NALSA judgment is not merely an obiter dictum to be overlooked but rather in words of Justice A. K. Sikri, a judgment which is grandiloquently traversed by Justice K. S. Radhakrishnan. It is crucial that unconstitutional provisions within the legislation are amended with an immediate effect so the very purpose of the said legislation is served efficaciously.
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