Transgender community has been wronged in several countries for centuries. It is sad to see that this gender of society even today struggles for their rights. In this essay, I intend to critique the transgender (protection of rights act ), 2019 (The Act).

This essay will talk about how this act which is supposed to be for the welfare of transgender is actually murder of gender justice[1] as it fails to accommodate the basic things that the transgender have longed for since eternity.

This bill was passed in Parliament, the same day the abrogation of article 370 took place and was thus, passed without any debate and its importance was also completely overshadowed.

Transgender have always overlooked and their rights were not and are still not considered important. They still are deemed inferior to the cis-gender population by public and the Indian legal system. It was as late as in 2011, when for the first time census included transgender as the third sex and reported that there are around five lakh transgender people in the nation.[2]

This essay is further divided into three parts. First, it explains the brief background of how transgender protection of rights 2019 act came into being and how it is different from the previous bill. In the second, the essay talks about the concerns the act entails which is divided into four sub-parts (definition, discrimination, procedural, administrative) and then the essay moves on to giving reformative suggestive measures.

How the act came into being?

In 2014, the court gave the landmark judgement in the case of National Legal Services Authority vs. Union of India[3] and gave transgender their long due right to self-identify themselves. The government had to follow up on this judgement. Tirauchi Siva, a member of DMK, for the first time, put forth private members bill for transgender.[4]

This bill was soon passed in Rajya Sabha and was moved to Lok Sabha. This bill, which actually had provisions that uplifted and protected the transgender community, was not taken up for discussion in Lok Sabha. Another bill in 2016 was introduced, which faced heavy criticism from the community members and activists.

It was taken under review and report was prepared by the parliamentary committee and was sent to the government which was rejected. It led to the introduction of a new bill in 2018 with 27 amendments.

This bill even though had several changes, didn't uplift the transgender community and didn't even put them at par with the cis-gender men and women. It is becomes evident on reading The Act that no assistance was taken from the people of transgender community as even the basic definition of transgender was erroneous. There are numerous concerns in the act throughout.

Why the act is not reformative?

Erroneous definitions
This act's failure to define transgender is reflective on the Indian legal system. The act which is supposed to be for the welfare of the transgender community, fails to even describe them and mixes it with the definition of intersex person. It is a shocking misrepresentation as there is a lot of difference between a transgender and an inter sex person[5]. Another term which the law makers failed to see from the point of view of transgender is the term family'. It is defined under section 2(c) of the act. It is, for the purposes of this act, said to “mean a group of people related by blood or marriage or by adoption made in accordance with law”[6].

This definition of family is banal. It fails to include what truly is important to a transgender person. There is a need for an expansion of the term family mentioned in the act as most transgender people do not live with their blood family as more often than not, they face mental or physical abuse, lack of support, criticism and shame. They prefer living with people from their community, which they have themselves chosen and that family needs to be included in the realm of the term family.[7]

Legitimizes Discrimination

The discrimination that started with Criminal Tribes Act, 1871 still persists. The previous bill (2016) had the provision which criminalized begging and sex work which was removed from the new act.[8] However, a new clause was introduced, section 18 (a) of Chapter VIII makes “compelling or enticing a transgender person into bonded labour”[9] an offence.

It should be noted already an act called Bonded Labour System Abolition Act is in force which criminalizes bonded labour for all genders without any discrimination.[10] It is evident that addition of this provision is futile.

The words have been carefully mended and the sole reason for introduction of this provision in The Act could be to criminalize sex work and begging indirectly. The twisting might help the lawmakers in implementing what they wanted to implement earlier but failed to due to the criticism[11].

The discrimination extends to sexual offences as well. Section 18 (d) of The Act says “any abuse towards transgender would be punished by 2 years of imprisonment”.[12]

This includes sexual abuse and violence against transgender person which would even endanger their life. The punishment of two years clearly implies that offences against transgender are considered “petty offences”. Over the year sexual abuse against transgender has been rampant but still is ignored and this is an example of it. Under IPC, offence of rape against cis-gender women is punished by 7 years and punishment for the same offence against transgender is very less. This clearly reflects the prejudice of the lawmakers in enacting the act against the transgender person.

Procedural Concerns

Certain issues related to the identification process which were there in the 2016 bill and still persists in the 2019 act. Even though the district screening committee[13] which existed in the previous bill has been removed after heavy criticism and now, District Magistrate has the power to issue the transgender person a certificate. The certificate, according to section 5, is to be issued on the presentation of several documents by the transgender person.[14]

The act however, fails to address the fundamental question of what all documents are needed. Since, the act is silent on this aspect, it makes it very challenging for transgender person to get a certificate without any hassle or harassment at the hands of executives. The identification process is not transparent and fails to respect the privacy of transgender persons. There numerous other problems in the process of obtaining a certificate. Under section 7 of the act it is mentioned, if a person wishes to change their gender to male or female, they will have to go through the process of sex reassignment surgery[15].

Archaic thinking and lack of awareness has led to the addition of this provision in The Act. After the sex reassignment surgery the proof has to be shown to the district magistrate of the surgery and it is up to the District Magistrate to decide whether surgery is valid or not and whether the certificate should be issued or not.[16] Sex reassignment surgery specifications are also not mention in the act, which is necessary as there is several types' sex reassignment surgery.[17]

The district magistrate can dismiss the request of the transgender person without giving any reason. There are no checks on this unfettered power of District Magistrate to issue certification to transgender person. Post-change in the gender identity of the person, the person can only change their first name and not their last name under no circumstances the person is allowed to change their last name.[18] The sole reason in not letting the person change their last name is the age old prevalence of caste system in India which is extremely problematic.

Efficacy of Administration

The Act has a provision under section 16 for the formation of a Nation Council for Transgender, which is supposed to work for the welfare of Transgender community. The composition of National Council for transgender person is of 30 people out of which only 5 are from the transgender community.[19]

Appointment of these 5 people will be done by the central government employees. [20] This might lead to questioning of the independence of the National Council for Transgender as it seems attached to the government and would fail to point out government's error in various places.

Another issue is related to the complaint officer, mention under section 11 who will deal with complaints relating violation of this act. This is a position which needed to great extent for the implementation of this act. [21]The Act, however, does not say anything about the nomination process of complaint officer. So, as of now, a complaint officer is a non-existent and when the process clarified then the independent nature and efficacy of the complaint officer can be debated about.

Unnecessary Policing
Section 8 of the Act speaks about rescuing and rehabilitation of transgender people[22].This clause of the act mentions that transgender can take shelter in shelter homes but transgender more often than not face sexual abuse mental abuse in these places and are apprehensive about living in such places and find Solace in living with community. The transgender doesn't need policing about where to live and where not to live but they need laws that protect them from mental and physical torture in which ever replace they reside. There is restriction on the movement of transgender out of the family without a court order.

It has been seen that transgender have often left their family and immediate family due to discrimination, mental and physical abuse. If they want to live life around people of their community, this provision of mandates them to get a court order in order to leave the family. This has crippled the transgender who do not have access to courts of law. The freedom to move have been taken away from the transgender through this clause and the only alternative of a family is a rehabilitation centre where transgender people experience similar problems.

Conclusion
The government needs to realize the faults that they have made in the act and correct it because the Transgender (protection of rights) Act 2019 will take precedence over the judgement in the case of National Legal Services Authority vs. Union of India and will be effective law till the time it is struck down by the Supreme Court. This act basically has put transgender in a worse position than they already were. It has legitimized the stereotype that transgender are different from other genders and has reinforced the already existing stereotype that they don't deserve equal treatment as cis-gender men and women.

The Act lacks an enforcing authority for discrimination and remedial measures for discrimination against the transgender. The Act doesn't talk about health policies, which are critical to the transgender community. This act is not enacted to give transgender their rights but to side-line them. India, when compare to its south-Asian counterparts, has been the last to acknowledge that there is a need for welfare policies for the transgender.

National Legal Services Authority vs. Union of India judgement was also the last one to come when compared to Pakistan's and Sri Lanka's courts[23]. Bangladesh, even before the landmark case in India, had already passed an effective law giving transgender their rights[24]. In India, despite the judgement being in the favour of transgender, their travesty of rights and struggle to self-identify still continues as the administration overlooks the actual needs of this marginalised community. The government needs to stop policing the transgender community and should aim at securing their rights not bending them.

End-Notes:

1. Murder of Gender Justice: Activists Call Out 'Trans (Phobic) Bill' for Violating Fundamental Rights, News18 (2019), https://www.news18.com/news/buzz/transgender-bill-2019-rajya-sabha-thawar-chand-gehlot-trans-activists-unconstitutional-gender-justice-2402293.html (last visited Jun 2, 2020).
2. The Third Sex: Transgender persons in India want to be treated as citizens. Is this too much to ask for?, 48 Economic & Political Weekly 9 (2013), https://www.jstor.org/stable/23528827 (last visited May 18, 2020).
3. National Legal Services Authority v. Union of India, WP (Civil) No 400 of 2012 (2014).
4. Standing Committee on Social Justice and Empowerment (2016-2017), (2017), http://164.100.47.193/lsscommittee/Social%20Justice%20&%20Empowerment/16_Social_Justice_And_Empowerment_44.pdf (last visited Jun 2, 2020).)
5. Sexuality, sexual politics and sexual rights, 23 Reproductive Health Matters 197-207 (2020), http://www.jstor.org/stable/26495882. (last visited Jun 1, 2020).
6. Transgender (protection of rights) Act,2019, 2(c) (2019).
7. Ibid at 7
8. Ibid at 4
9. Transgender (protection of rights) Act, 2019, 18(a) (2019).
10. Bonded Labour System (Abolition) Act,1976
11. Ibid at 4
12. Transgender (protection of rights) Act,2019, 18(d) (2019).
13. Ibid at 4
14. Transgender (protection of rights) Act,2019, 5 (2019).
15. Transgender (protection of rights) Act,2019, 7 (2019).
16. Ibid
17. Ibid at 5
18. Ibid at 4
19. Transgender (protection of rights) Act,2019, 16 (2019).
20. ibid
21. Transgender (protection of rights) Act,2019, 16 (2019).
22. Transgender (protection of rights) Act,2019, 8 (2019).
23. Dipika Kimberly & Jain Rhoten, A Comparison of the Legal Rights of Gender Non-Conforming Persons in South Asia, 48 Economic & Political Weekly 10-12 (2013), http://www.jstor.com/stable/24477885 (last visited Jun 12, 2020).
24. Ibid at 23