I am what I am, so take me as I am - the iconic words of Johann Wolfgang von Goethe, the great German thinker, quoted in the Navtej Johar’s case[1] compel us to reflect on our conventional understanding of the term ‘Gender’. The restricted interpretation of ‘Gender’ so far has ignored a large segment of people and kept them at bay, which led them to suffer inexplicable forms of harassment and discrimination in the society.

There are close to five million people constituting the transgender community in India[2]. At one point in Suresh Kumar Koushal vs Naz Foundation case[3] Miniscule fraction Principle was applied however it has been rightly down away Navtej Singh Johar case.

This small proportion of people have been subjected to various social and cultural ostracization in multiple ways and forms. The universally recognized Right to self-determination remained to be a dead letter that failed to convince the Indian lawmakers to revisit their archaic laws that are inherently discriminatory. After a long struggle and persistent efforts of the LGBTQ activists and other social agencies who were the frontrunners to fight this menace, the apex court finally took a bold and progressive stance by reading down Section 377 of the Indian Penal Code (IPC)[4].

Section 377 was misused very frequently in the past. It can be better understood by referring to the case of Queen Empress vs Khairati[5] wherein the session judging noted his concern on misusing section 377 by authorities against innocent persons. Said abrogation decriminalized homosexual relationships and gave self-determination rights precedence over any other law. The said abrogation decriminalized homosexual relationships and gave self-determination rights precedence over any other law.

The ruling has drawn praise from across the world and gave the community a sense of hope in the stereotypical world of binaries. The Legislature passed Transgender Persons (Protection of Rights) Bill, 2019 amidst an uproar culminated due to the abrogation of Article 370 of the Constitution, on 5th August, 2019. An important Bill like this had failed to gravitate adequate public gaze in the country. Nevertheless, the Act was intended to provide for the protection of rights and welfare of the transgender persons[6].

We shall now be critically analysing various provisions of the Transgender Persons (Protection of Rights) Act, 2019 (Act no. 40 of 2019) (hereinafter referred to as the Act) and discuss the ways and means in which it can be improved to fully achieve its intended objects.

The Journey behind the status Quo

The efforts to make a law in order to strengthen the transgender persons date back to 2014 when Supreme Court gave its praiseworthy judgment in National Legal Services Authority vs Union Of India[7] In this landmark case the apex court held that:
Values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to the members of transgender community under article 19(1)(a) of the constitution of India and the state is bound to protect it

A series of measures to protect the transgender persons rights were recommend by the Supreme Court in this landmark Judgment.

In the same year, a private member’s bill was introduced in the Rajya Sabha by Tiruchi Siva of the Dravida Munnetra Kazhaga (DMK) party on 12th December, 2014[8]. The Bill was successfully passed in the Rajya Sabha on 24th April, 2015. However the government was disinclined to accept the proposal and asked the DMK MP Tiruchi Siva to withdraw the bill while they were preparing their own version of the bill in which they had omitted many vital provision of the private member’s Bill. When the Bill was tabled in Lok Sabha, it was discussed.

Meanwhile the government introduced the Transgender Persons (Protection Of Rights) Bill, 2016 in the Lok Sabha on 2nd August 2016. However the 2016 Bill lapsed after being passed by the Lok Sabha. Therefore the Transgender Persons (Protection Of Rights) Bill, 2019 was introduced in Lok Sabha on 19th July, 2019 by the Minister for Social Justice and Empowerment. It was passed by both houses and received the assent of the President on 5th December 2019 and hence is known as Transgender Person (Protection Of Rights) Act 2019 (Act no.40 of 2019)

Ambiguous Naming Of The Act

The Act defines the term ‘transgender person’ as 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[9].

It is interesting to note that the term trans/transgender, as provided by the Asia Pacific Transgender Network (APTN) based on discussions held at a regional consultation in Manila, 2012, is defined as persons who identify themselves in a different gender than that assigned to them at birth. They may express their identity differently to that expected of the gender role assigned to them at birth. Trans/transgender persons often identify themselves in ways that are locally, socially, culturally, religiously, or spiritually defined[10].

It is pertinent to note that the said definition does not speak about ‘persons with intersex variations’ (PIVs) which, on the contrary, finds an explicit inclusion in the definition of ‘transgender person’ as defined in the Act. This engenders a fundamental question - whether ‘transgender person’ and PIVs are one and the same, and can a PIV and a ‘transgender person’ be treated alike under the law?

The term trans and its linked concepts of gender identity and expression are distinct from the term ‘intersex’ which is about sex variations. Being intersex does not mean being a trans. Some PIVs may identify as trans or gender variant, whereas others may not. Although some PIVs describe their sex or gender identity as non-binary, most identify as either male or female[11].

Thus, we see that the Act clubs the definition of an intersex person with a ‘transgender person' and fails to accord adequate attention in making the well established distinction, between the two. The Act impels an intersex person to identify himself as a ‘transgender person’ even if they clearly connect themselves to being non-binary or gender non-conforming or gender variant or simply asexual in nature. Such unnecessary compulsion by law does nothing but dilutes the identity of being a PIV.

Blurred Concept of the ‘Right to Self-Perceived Gender Identity’

The Act recognizes the ‘right to self-perceived gender identity’[12] of a transgender person. They may, to exercise such right, make an application to the District Magistrate (DM) to receive an identity certificate[13]. The certificate so received from the Magistrate shall confer rights and serve as a proof of recognition of such person’s identity as a ‘transgender person’[14].

However, if such person desires to undergo Sex Reassignment Surgery (SRS) in a medical institution to change their gender either to male or female, they may make an application, along with a certificate issued by the Medical Superintendent or Chief Medical Officer of the said medical institution, to the DM for a revised certificate of identity in a prescribed manner[15].

Looking into the aforesaid provisions an ambiguous conclusion can be drawn that even though the Act in one part says that a transgender person shall have a ‘right to self-perceived gender identity’, subsequently goes on to state that ‘transgender person’ are required to undergo certain surgeries before legally changing their gender thus undermining the very concept of ‘right to self-perceived gender identity’ and making it a false reality.

The same issue finds a categorical mention in NALSA case:

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. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity[16].

Even United Kingdom has passed the Gender Recognition Act, 2004 wherein the act is all encompassing as not only does it provide legal recognition to the acquired gender of a person but also it provides that it is not necessary that a person needs to undergo the process of any surgery for applying under the Act[17].

Constitutional & Other Challenge

Indian Constitution is an organic charter of progressive rights. It is an inclusive, flexible and accommodative document that is formed on the touchstone of equality. This pious document has stood the test of times as one of the most progressive and far-sighted pieces of legal works. Many progressive States have identified the anomalies and shortcomings in their beliefs and practices and taken bold steps to expand the scope of their governing documents keeping the basic rights of life and liberty at the highest pedestal.

The Act raises concerns as to the scope of our Constitution governing the rights and privileges of certain classes of people, viz, women, children, minorities, etc. The object and intent of providing for special rights and privileges emanates from the premise of the existence of inequality in the society. Such special rights and privileges buttresses the guarantee of ‘equal protection’ contemplated under Article 14.

The decriminalisation of homosexuality[18] and the subsequent enactment of this Act challenges the conventional notion of gender binary. Whether a trans-man or a trans-woman be treated at par with a woman? Whether Article 15(3) that allows the State to positively discriminate among the citizens in favour of women and children, is broad enough to cover within its sweep the transgenders as beneficiaries of this equitable provision? Whether transgenders are entitled to other affirmative actions like reservation in education, employment, job opportunities, political representations, etc.?

In 2011, The Delhi High Court in Naz Foundation case[19] while decriminalizing Section 377 has rightly recognized the scope of fundamental right of equality and observed that:-We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15

The Honorable Supreme Court in the case of NALSA vs Union of India[20] has made it clear that all the expressions such as ‘Person’ used in Article 14, 21 and the expression Citizen used in Article 15,16,19 of an India Constitution are gender neutral. All those expressions refer to human being. They take within their sweep Transgenders and not limited to male or female gender only.

And Therefore, The discrimination on the ground of Sex under Article 15 and 16 includes discrimination on the ground of gender identity. The apex court further recognized that Transgender community shall be equipped with special protection of Reservation in education and in matter of appointments to the public offices so that the injustice done to them for centuries could be remedied.

However, It is unfortunate that at the time of enacting the transgender persons (Protection of Rights) Act, 2019, it appears that legislature had failed to recognise it. If all such facilitative actions, amongst others, are not taken in time, it would be virtually discouraging for any person who identifies himself as a ‘transgender person’ to be governed by this ostensibly beneficial Act.

Rape and other Sexual Offences

The Act contemplates punishment for sexual abuse committed against transgender persons. It states that:
whoever harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine[21].

Under the IPC punishment for the aforesaid acts are more stringent in nature and punishment awarded under similar offences against women attract greater terms of imprisonment. Furthermore, transgender persons can take no recourse to the remedies contemplated under The Sexual Harassment of Women at Workplace (Prevention. Prohibition & Redressal) Act 2013 (POSH) thus making them vulnerable to sexual offences at workplaces.

Recently in a welcome development, in the case of Anamika vs Union Of India[22]the Delhi High Court has affirmed the application of Section 354A ( i.e Sexual Harassment) of Indian Penal Code to transgender community. However, the scope of ‘rape’ is still not wide enough to cover within its fold the transgender persons. Such unequal treatment of two classes of persons highlights the discrimination by law and violates the basic tenets of the Constitution. Thus the scope of rape should be revisited.

Protection of Civil Rights of Transgender Community

Various civil rights such as marriage, adoption, maintenance and inheritance have been conveniently left out by the law makers from the Act. Undeniably, the Act is enacted to be in addition to, and not in derogation of, any other existing law, but it can be emphatically argued that the transgender persons do not, at the outset, possess such rights thereby making such complementary provisions[23] a fruitless proposition qua a transgender person. Unlike India, The United Kingdom does lay down provisions highlighting the consequences of the newly acquired gender status on their legal rights and entitlement in various aspects such as Parentage and Succession[24]

Registration of Marriage between Homosexuals

It is not an alien concept that the institution of marriage brings stability in a person’s life, and matrimony is considered sacred and holy in every part of the world. Therefore, registration of marriage is necessary both from custom and legal viewpoints. If any person is not allowed to have their holy matrimony registered, it is nothing but sacrilegious to their personal laws.

The Special Marriage Act of 1954 (SMA) is a special law enacted to provide for a unique form of inter-faith marriage amongst Hindus, Muslims, Christians, Sikhs, Jains and Buddhist by registration wherein the parties to the marriage do not have to renounce their respective religion to seek registration of such inter-faith marriage.

It is a legislative tool to bring social change and a well-intended endeavor to achieve the objective of Uniform Civil Code. The SMA applies not only to Indian citizens of varied castes and religions but also covers Indian nationals living abroad. A writ petition[25] was filed in Kerala High Court by a gay couple challenging the constitutionality of SMA on the ground that it discriminates against homosexual couples who want to formalize their relationship through marriage.

In their plea, the couple stated that they were aggrieved by the provisions of SMA contending that the law only permits a heterosexual couple to get married and a homosexual couple like them is denied equal access to the institution of marriage. The text of the SMA does not exclude homosexual unions from its ambit expressly, but carries a heterosexual undertone in its language and expression.

Refusing their plea under the SMA would cause them a real tangible damage, considering that marriage carries a range of legal rights and protections, available during the marriage as well as on its dissolution by way of divorce (the right to seek maintenance) or death (the right to inherit property). The petition refers to the landmark decision of the Supreme Court of The United States of America[26] in 2015 which declared that homosexual couples have right to get married under the law.

Adoption and Maintenance Rights

The Act has no reference to the procedure for either Adoption or Maintenance of a ‘transgender person’. The Hindu Adoption and Maintenance Act of 1956 (HAMA) makes provisions that no male or female can adopt if their respective spouses of the opposite sex are not in consent with the same[27]. Here the dilemma that clouds our mind is whether a Hindu transgender couple be permitted to adopt under this law since the Act is silent on this issue and the HAMA too makes no provision for ‘transgender person’[28] thereby depriving the transgender community from exercising their right to adopt a child.

The Act further has no reference of providing any kind of maintenance to the transgender person. The provision of maintenance is covered under Section 125 CrPC as well as various personal laws. One explicit common factor between Section 125 and the relevant sections of various personal laws is the fact that the wife of such a man is entitled to maintenance by her husband during her lifetime. Recollecting the point that registration of marriage is not yet institutionalized for transgender persons, thus depriving them of an opportunity to claim any kind of maintenance from their parting spouses under any law for the time being in force.

Laws of Inheritance

The Act makes provision for a good and conducive environment for a transgender child in a household and the right to use the facilities of such household in a non-discriminatory manner[29]. This, however, does not serve the purpose when it comes to the right of succession to the ancestral or other properties of such households. There is as such no protection given to any ‘transgender person’ if any member of their family does not recognize them as lawful heirs to their property or discriminates with them as being incapable of becoming an heir since neither this Act nor the extant laws of succession provide any kind of mention or protection for the transgender persons.

Medical Aid

Transgender community face significant barriers in exercising their human rights, including their right to health. The level of social exclusion they experience demonstrates their appalling state of affairs in the society. The introduction of SRS as a measure for a transgender person to seek reassignment of their gender to a male or a female, is not hailed by the transgender community. Such kind of medical surgery or any other medical intervention for sex reassignment reflects the poor understanding of law makers about transgender.

In the famous NALSA judgement[30], it was remarked by the Hon’ble Judges
No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person's gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.

The Act provides for Sero-surveillance Centres, medical care facility including SRS and hormonal therapy, before and after SRS and hormonal therapy counselling as well as bringing out a Health Manual related to SRS in accordance with the World Professional Association for Transgender Health (WPATH)[31]; however interestingly the Act requires a ‘transgender person’ to make an application to the DM seeking issuance of a certificate of identity as a ‘transgender person’[32] and that the same shall be issued after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender of such person as transgender[33].

This raises an important question as also reiterated by many transgender activists that if for any reason the DM is not satisfied with the documents which are a necessary requirement for obtaining the transgender certificate[34] and to avail of the provisions within the Act, the aggrieved parties would have no other option but to appeal to the appellate authority[35] whose decision would be final. It is interesting to note that the said appellate authority is created under Rule 9 of the Transgender Person (Protection of Rights) Rules, 2020 and it has no mention in the principle act. In my opinion this is a perfect example of excessive legislation by the executive that is not mandated by the principle Act.

Moreover, the decision of the Appellate Authority directly affects one’s fundamental right of self-determination and therefore it is very necessary that the said authority should be impartial and independent. But, the Appellate Authority is the creation of the executive (Ministry of Social Justice and Empowerment) and the order which it would be reviewing would also be of the executive (District Magistrate). Therefore, it may lead to the gross violation of the basic principle of the Natural Justice and raises the preponderance of official bias and official obstinacy.

National Council For Transgender Persons

The National Council for transgender persons includes an array of government officials with a considerably less representation from the transgender community let alone the representation from intersex and other allied communities. Their role is more of advisory to the Central Government and of monitoring the policies formulated for the transgender community which on ground does not serve any purpose as no method of ensuring implementation of such policies has been even touched upon by the Act.

To make it worse, there is no statutory body dedicated to hear the plea challenging the decision of the National Council if it is unable to redress the grievances appropriately for the transgender persons thus ironically making the institution the jack of all trades but master of none.

Conclusion
We are made to believe that the Act is a beneficial piece of legislation for the transgender persons. There are provisions made for the social inclusion and upliftment of the transgender persons which all this while they had been excluded from due to archaic traditions. Ubi jus ibi remedium is a trite legal principle of jurisprudence, which means that where there is a right, there is a remedy or, in other words, a right without a remedy is no good a right.

The provisions of the Act are not substantiated with penal provisions thus watering down the essence of the very nature of remedy. One of the most essential ingredients of a Law is punishment (in the form of imprisonment or fine or penalty, etc.) that would entail on the person for non-adherence of such Law. Any law which is not coupled with punishment is an inchoate law and thus cannot command its adherence as the same hinges on the will of the subjects.

The Act has not touched upon the constitutional and other statutory laws which are necessary rights to be provided to the transgender persons. The National Council too does not serve any real purpose as its powers are restrictive in nature.

Thus, the Act is fraught with glaring aberrations and is surely a paragon of an incomplete law. It describes the offences that can be committed against the transgender persons but fails to provide proper judicial redressal mechanism. Lastly, it would not require a genius to realize that this Act is treating the transgender persons as second class citizens in the garb of equality in a covert manner and is thus antithetical to the purposes of the Act.

The Transgender Community were and are still humiliated for a long time and whose voice is not heard as they do not have sufficient votes which would affect the results. It is unfortunate that in our country it is only the votes which count and not the voice.

End-Notes:

1. 1 Navtej Singh Johar & Ors v. Union of India & Ors. (2018) 10 SCC 1
2. Census of India (Census Data of 2011), https://www.censusindia.gov.in (7th December, 2020, 04:35PM )
3. Suresh Kumar Koushal vs Naz Foundation, AIR2014SC 563
4. Supra note.1
5. (1884) ILR 6 All 204
6. Transgender Persons(Protection Of Rights) Act,2019, Preamble, Act no.40, Acts of Parliament,2019 (India
7. National Legal Services Authority vs Union of India (2014) 5 SSC 438
8. Vijayata Lalwani, How Parliament came to have two Bills on transgender persons’ rights (and why neither may pass), Scroll.in. (10th December,2020 05:25PM)
9. Transgender Persons(Protection of Rights) Act, 2019,Section 2(k), Act no. 40, Acts of Parliament (India)
10. Page xi , Blueprint of the comprehensive care for the trans people and tans communities in the Asia and the Pacific, http://www.healthpolicyproject.com/ (10 December,2020 06:35)
11. Page xiv Id
12. Transgender Persons (Protection of Rights) Act, 2019,Section 4(2), Act no. 40, Acts of Parliament (India)
13. Transgender Persons (Protection of Rights) Act, 2019,Section 5, Act no. 40, Acts of Parliament (India)
14. Transgender Persons Protection of Rights) Act, 2019,Section 6, Act no. 40, Acts of Parliament (India)
15. Transgender Persons Protection of Rights) Act, 2019,Section 7, Act no. 40, Acts of Parliament (India)
16. National Legal Service Authority vs Union of India (2014) 5 SSC 438
17. Gender Recognition Act,2004, Section 1, Acts of Parliament,2004 (United Kingdom
18. Supra note.1
19. Naz Foundation vs. Government of NCT and Ors, MANU/DE/0869/2009
20. Supra note.5
21. Transgender Persons(Protection of Rights) Act, 2019,Section 18, Act no. 40, Acts of Parliament India)
22. Anamika vs Union of India W.P. (CRL)/2018
23. Transgender Persons(Protection of Rights) Act, 2019,Section 20, Act no. 40, Acts of Parliament India
24. Gender Recognition Act,2004, Section 12 and 15,Acts of Parliament,2004 (United Kingdom)
25. Gay couple flies plea in Kerala HC for registration of marriage under Special Marriage Act, From indianexpress.com (11 December,2020 06:10PM)
26. Obergefell Et Al. V. Hodges, Director, Ohio Department Of Health, Et Al 2015
27. The Hindu Adoption and Maintenance Act 1956, Section 7&8, Act No. 78, Acts of Parliament,1956 (India)
28. Para2, pg10, Hijras/Transgender Women In India: Hiv, Human Rights And Social Exclusion, UNDP 2010, https://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclusion.pdf (8th December, 2020,5:45 PM)
29. Transgender Persons Protection of Rights) Act, 2019,Section 12, Act no. 40, Acts of Parliament India
30. Supra note.14
31. Transgender Persons Protection of Rights) Act, 2019,Section 15, Act no. 40, Acts of Parliament India
32. Transgender Persons Protection of Rights) Act, 2019,Section 5, Act no. 40, Acts of Parliament India)
33. Transgender Persons Protection of Rights) Act, 2019,Section 6(1), Act no. 40, Acts of Parliament India)
34. Supra Note.29
35. Transgender Person (protection Of Rights) Rules,2020, Rule 9
    
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