TRANSGENDER PERSONS ACT, 2019: MOCKERY OF CONSTITUTION?

The name Marsha P. Johnson has an immortal and irreplaceable spot in the fight for equality for the LGBTQ community. When the police started brutally attacking the peaceful gatherers at the Stonewall Inn on 28 June 1969, Johnson was one of the forefront fighters against the brutality. Being a black gender non-conforming person, Johnson already knew what oppression was. So, Johnson urged people by saying, “You never completely have your rights, one person, until you all have your rights.”

1.        Yogyakarta Principles

In 2006, a “distinguished group of international human rights experts met in Yogyakarta, Indonesia to outline a set of international principles relating to sexual orientation and identity”. They laid down some principles to ensure equality is established and ensured for all, irrespective of their sexual orientation and gender identification.

These principles included basic rights such as “right to universal enjoyment of human rights; rights to equality and non-discrimination; right to recognition before law; right to life; right to security of person”. The principles also provided for special rights such as “State protection; legal recognition; right to sanitation; right to protection from poverty”.

The principles established to act as a guiding agent to countries and organisations to make laws that promote and ensures equality among all. [1]

2.       Fight for Trans-Rights in India

The fight for transgender rights is not a new concept for India. In 2014, The Rights of Transgender Persons Bill, 2014 was unanimously passed by the Rajya Sabha. However, it was neither debated upon nor discussed in the Lok Sabha. So, the bill lapsed. Later in 2016, another bill was introduced in the Lok Sabha named the Transgender Persons (Protection of Rights) Bill, 2016. It was heavily opposed by the transgender community in India and ultimately lapsed. In 2018, again another bill called the Transgender Persons (Protection of Rights) Bill was passed by the Lok Sabha but was met by criticism and protests.

The Transgender Persons (Protection of Rights) Act, 2019 [The Act] was enacted by the Parliament on 5 December 2019, after receiving the consent of the President. It is the first step in the enduring struggle of the transgender community for their identity recognition. It aims to protect the rights of transgender persons by making welfare provisions for them and by granting them their due recognition. However, the Act has been vehemently criticised by the transgender community and activists as ‘draconian and discriminatory’ form of legislature. They have been protesting against the bill for months because it “violates the rights of the very individuals it seeks to protect”.

3.       Self- Identity Conundrum

The progressive approach adopted by the Supreme Court in the case of National Legal Services Authority v. Union of India, “by recognizing the transgender community as ‘Third-Gender’ had not only upheld the rule of law but also advanced justice to the class, so far deprived of their constitutional rights. Determination of the gender to which the person belongs has to be decided by the person concerned. Democracy is based on the recognition of individuality and dignity of the man. Hence, citizens have a right to gender identity.” [2]

However, the Act in question is a far cry from the apex court’s judgment. It doesn’t guarantee the right of ‘self-perceived gender identity’ as lay down by apex court in the case of NALSA verdict. Although section 4 of the Act provides for ‘self-perceived gender identity’ for the person recognised as transgender the same has been taken away by section 5 of the Act which states that for transgender persons to identify themselves as per their perceived gender, they have to obtain a ‘certificate of identity’ from District Magistrate by following a procedure.

One of the major concerns is that the law provides no guideline or parameter as to how the decision has to be made by the magistrate. It also fails to provide the possible recourse (appeal or review of the decision) in case the District Magistrate denies providing the certificate. The other concern being that the individual whose perceived gender matches with the one assigned at birth doesn’t have an obligation to obtain any such certificate by the magistrate which creates clear discrimination between transgender and male/female. Moreover, a revised certificate has to be obtained in case the individual undergoes ‘a sex reassignment surgery’. Also, the law is silent as to whether the surgery would be provided at a subsidised cost or free.

The act consists of various other controversial provisions such as:

• The Act under Section 3 prohibits any discrimination against a transgender person with respect to employment, education, health care services etc however the act has not prescribed any punishment for the same. Supreme Court clearly stated in NALSA verdict that “Transgender individuals are entitled to reservations in the field of employment, as envisaged under Article 16(4) of the constitution. The state is bound to take affirmative action to give them due-representation in public services.” [3]

• The punishment provided in the act against sexual abuse done towards transgender is inadequate when compared to the punishment provided in the Indian Penal Code, 1860 for sexual abuse committed against women.

• ‘Transgender’ as defined under Section 2(k) of the Act includes intersex individuals which is wrong as they have different legal needs from that of transgender persons.

• The act under Section 12 forestalls transgender children to be separated from their family members, being completely blind to the fact that they face harassment and discrimination the most in their own household.

• The act under Section 12(3) also states that where the family members of the children cannot take care of them, they will be transferred to Rehabilitation centres. These centres have long drawn history of oppression, abuse and the ingrained social stigma attached to the community has to be considered while deporting them to such centres.

4.       Aftermath

At the New Delhi Pride Parade, organised in the month of November 2019, large gathering of people protested against the Act. It has been rightfully said that “the bill goes against the right to dignity and bodily autonomy of trans people”. There was a rally to ask for the provision of social and civil rights such as Right to marriage, Right to adoption, various social security benefits etc, which has been clearly ignored in the Act.

Due to a large number of protests and opposition against the Act, Swati Bidhan Baruah, the first transgender judge of Northeast India, filed a petition in the Supreme Court. It was argued that the Act “treats the trans community with suspicion and reinforces prejudices against them”. The Supreme Court has taken notice of this plea and has issued a notice to the Central Government as “the Act being violative of right to life, privacy and equality of transpersons”.[4]

5.       Conclusion

The present Act, being one of the first of its kind for India, strives towards promoting equality and giving rights to the said community, which they’ve been long deprived of. However, it goes without saying that it has many loopholes those when implemented will do more harm than good. Though the Constitution would ensure in protecting these rights, but the social stigma against the community is deeply engraved within the society.  The taboo needs to be removed. And for that awareness is needed so that the wrong apprehension can be changed. The current youth needs to educate themselves and everyone around them, so that the concept of equality does not remain only in papers and documents, rather within the hearts of people. Concrete law is needed to protect the trans people from bullying.

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ABOUT THE AUTHOR(S)

Sangya Panda is a third-year law student at National Law University Odisha.

Riddhi Khandelwal is a third-year law student at National Law University Odisha.    

In Content Picture Credit: Feminism In India