The Transgender Persons (Protection of Rights) Act of 2019- A trans sans identity?
A trans sans Identity?
Introduction
People will sometimes put each other in boxes and have biases toward one another because of what they look like or where they come from or who they are." - Rich Moore
Historical Evolution
Objective Of The Law
The Transgender Persons (Protection of Rights) Act of 2019 seeks to improve the lives of those who identify as transgender. In India, members of the community have encountered hostility as a result of their ethnicity. As a result, the Act was written to ban discrimination against transgender people and to defend their rights.
The poem Dance by Eunuchs was written by Kamala Das to highlight the community's plight. It illustrates how society views transgender people with revulsion and abjection. It is an important depiction of the condition of transgender people in India. They are regarded as taboo. This necessitates the Act's existence. People's sexual identities are enshrined in the Constitution's Right to Life.
Furthermore, the country must adhere to its international obligations. International Human Rights law is founded on the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Universal Declaration of Human Rights served as the foundation for several treaties (UDHR). Every human being has an inherent right to life, which must be protected by law, according to Article 6 of the UDHR and Article 16 of the ICCPR, 1966. India has signed and ratified these treaties.
Summary Of The Law
The definition of a transgender person is defined in the Act. It states, "one whose gender does not match the gender assigned at birth"[2]. Transwomen, transmen, people with intersex variants, genderqueers, and people with socio-cultural identities like kinnar and hijra are all included.
The Act forbids discrimination[3] against transgender people in educational institutions, employment, and other settings on the basis of cessation, denial, or unjust treatment. Every institution must select a Complaint Officer to handle complaints about violations of these requirements.
Transgenders have the right to reside[4] and be included in their households. If not, a competent court may order the offender to be placed in a rehabilitation centre.
The government is ought to take steps to provide adequate healthcare facilities[5] to transgender persons. Separate HIV surveillance centres and sex-reassignment operations are required. Transgender people need comprehensive medical insurance plans that handle their health challenges and examine their medical curriculum on a regular basis.
In order to get a certificate of identity[6], a transgender has to make an application to the District Magistrate. The certificate will be issued by the D.M. without the requirement of any physical or medical examination. This certificate will act as a proof of the person's identity and will be recorded in official documents.
The Act also directs the Central Government to set up a National Council for Transgender Persons (NCT)[7]. This would be an advisory body with the Minister of Social Justice and Empowerment as its chairperson.
The offences[8] identified under the Act are:
Judicial Response
The ruling of the Supreme Court in National Legal Authority vs Union of India[9] is considered a landmark for the transgender community. It made many recommendations for the transgender community's advancement to both the federal and state governments. It was the first case in which transgender people were granted the right to self-identification.
In the case of Arun Kumar vs. IG of Registration, Chennai, and Ors.[10], The Madras High Court ruled that under Section 5 of the Hindu Marriage Act, 1955, a marriage between a transwoman and a male who are both Hindus is legal. Furthermore, the marriage must be registered with the Registrar of Marriages.
Supreme Court affirmed in the case of Navtej Singh Johar v. Union of India[11], that, a transgender must not be denied the very fundamental human rights. The right to life and liberty, the right to empowerment and education, and the right to violation and exploitation are among these rights. Although the Constitution guarantees these rights, it fails to recognise them in a way that allows transgender people to live a dignified life.
In the case of Justice K.S. Puttaswamy Vs. Union Of India[12], the right to privacy, according to the court, is an expression of individual dignity, identity, and autonomy drawn principally from Article 21. Right to Life includes the right to sexual identity.
Critical Appraisal
The term transgender is thought to have been defined in a limited manner. People who do not follow the norm are said to have a lack of comprehension of the complexity. The terms intersex and transgender are used interchangeably. Intersex has been included in the transgender category. This is problematic since an intersex person may or may not identify as a transgender person.
The Standing Committee suggested in its report that the Act be as inclusive of intersex people as it is of transgender people. They suggested changing the Act's name to something more inclusive, such as Transgender and Intersex Persons (Protection of Rights).
The Act is progressive merely in name. It is considered to have allowed transgender people to self-identify. In actuality, it has mandated that transgender individuals acquire a proof of identity from the District Magistrate. This goes against the self-identification principle. Furthermore, there is no provision in the Act for recourse. The public will have no recourse if the D.M. refuses to provide the certificate.
The certificate will be issued by the District Magistrate "after following such procedure and in such form and manner, within such time, as may be prescribed specifying the gender," according to the Act. However, there is no definition of "process"[13] in the Act.
Furthermore, the Act says that if a transgender person has sex-change surgery, they must apply for a "updated certificate" from the D.M. To get the amended certificate, a certificate attesting to the surgery from the Medical Superintendent or Chief Medical Officer of the institution where the surgery took place is required. Only after the DM is satisfied with the appropriateness of the certificate granted by the Chief Medical Officer[14] does the DM issue the updated certificate. As a result, a closer examination reveals that the Act does provide a "implied and indirect" screening method for transgender people seeking a certificate.
The Supreme Court's directives in the National Legal Services Authority vs. Union of India[15] case was anticipated to culminate in the 2019 Act. The Supreme Court has ordered those states treat transgender people as "socially and educationally backward classes" and grant them all kinds of accommodations. Scholarships, fee exemptions, and free facilities, among other things, were recommended by the Expert Committee[16]. The Act, on the other hand, just includes the term "inclusive education system[17]" and does not go into detail on the resources available.
According to the Act, no matter how serious a transgender offence is, the perpetrator can only be sentenced to two years in prison. The punishment for reprehensible conduct, such as sexual abuse or risking the life of a transgender person, can be up to two years in prison. The existing sections of the IPC were supposed to be used to criminalize these offences. The Act, on the other hand, is a watered-down version of the IPC. Rape has a minimum sentence of seven years in jail under the Indian Penal Code. As a result, it is a violation of a trans person's right to bodily integrity.
Conclusion
It is conceivable that the Act may have been much greater than it is now. It could have worked out better with so much thought and effort put into the writing of the different bills for this Act. The Act isn't optimal because of the government's and other authorities' hurried choices. Many of the transgender community's questions have gone unanswered. Amends can be made by taking into account the proposals provided by those who are directly affected by the Act's provisions.
The curtailed Transgender Persons (Protection of Rights) Act of 2019 infringes the NALSA judgement by ignoring the transgender community's essential rights, bodily autonomy, and dignity. It undermines people's right to gender self-determination by subjecting them to psychological, medical, and public scrutiny.
On the other hand, the Supreme Court's decision to strike down Section 377 is positive evidence of the state's commitment to acknowledging varied partnerships and families. The Act must offer fair social, economic, and civil rights, as well as protection from abuse and discrimination, in order to protect the community's interests. Before the guidelines are formalized, the transgender community must be consulted.
The public consultation process has to be extended to include more people and give ample time for the regulations to be reviewed. The administration should consider extending the consultation time until people are ready to mobilize and appropriately express their concerns in a secure manner. It is vital to provide the transgender people with equal constitutional rights in order to empower them, reduce societal stigma, and improve their socioeconomic situation.
"While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight – there is a most certainly shame and dishonour in being a homophobe, a transphobe and a bigot." - Standing Committee
References
Acts:
Introduction
People will sometimes put each other in boxes and have biases toward one another because of what they look like or where they come from or who they are." - Rich Moore
Historical Evolution
| 15 April 2014 | In the year 2013, the government of India
made an Expert Committee to understand the difficulties faced by
transgenders and suggest appropriate measures. Judgement delivered by the supreme court of India in National service authority v union of India[1] recognizing the rights of transgender people by laying down series of measures which are as follows:
|
| 2014(After the judgement) | Tiruchi Siva, a member of the Dravida Munnetra Kazhagam (DMK) party, introduced The Rights of Transgender Persons, 2014, as a private member's bill in the Rajya Sabha. The bill was passed by the Rajya Sabha in April 2015, but it failed to gain a majority in the Lok Sabha. This bill was untimely lapsed since it was pending till the dissolution of the Lok Sabha. |
| 2016 | In the Lok Sabha, the Centre introduced the Transgender Persons (Protection of Rights) Bill, 2016. It was stated that physiological professionals would be in charge of assessing a person's identity based on medical and psychological characteristics. |
| 2018 |
|
| 2019 |
|
Objective Of The Law
The Transgender Persons (Protection of Rights) Act of 2019 seeks to improve the lives of those who identify as transgender. In India, members of the community have encountered hostility as a result of their ethnicity. As a result, the Act was written to ban discrimination against transgender people and to defend their rights.
The poem Dance by Eunuchs was written by Kamala Das to highlight the community's plight. It illustrates how society views transgender people with revulsion and abjection. It is an important depiction of the condition of transgender people in India. They are regarded as taboo. This necessitates the Act's existence. People's sexual identities are enshrined in the Constitution's Right to Life.
Furthermore, the country must adhere to its international obligations. International Human Rights law is founded on the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Universal Declaration of Human Rights served as the foundation for several treaties (UDHR). Every human being has an inherent right to life, which must be protected by law, according to Article 6 of the UDHR and Article 16 of the ICCPR, 1966. India has signed and ratified these treaties.
Summary Of The Law
The definition of a transgender person is defined in the Act. It states, "one whose gender does not match the gender assigned at birth"[2]. Transwomen, transmen, people with intersex variants, genderqueers, and people with socio-cultural identities like kinnar and hijra are all included.
The Act forbids discrimination[3] against transgender people in educational institutions, employment, and other settings on the basis of cessation, denial, or unjust treatment. Every institution must select a Complaint Officer to handle complaints about violations of these requirements.
Transgenders have the right to reside[4] and be included in their households. If not, a competent court may order the offender to be placed in a rehabilitation centre.
The government is ought to take steps to provide adequate healthcare facilities[5] to transgender persons. Separate HIV surveillance centres and sex-reassignment operations are required. Transgender people need comprehensive medical insurance plans that handle their health challenges and examine their medical curriculum on a regular basis.
In order to get a certificate of identity[6], a transgender has to make an application to the District Magistrate. The certificate will be issued by the D.M. without the requirement of any physical or medical examination. This certificate will act as a proof of the person's identity and will be recorded in official documents.
The Act also directs the Central Government to set up a National Council for Transgender Persons (NCT)[7]. This would be an advisory body with the Minister of Social Justice and Empowerment as its chairperson.
The offences[8] identified under the Act are:
- Bonded or forced labour (However, this does not include the compulsory government services for public purposes)
- Denial to use public places
- Removal from their house and/or village
- Sexual, physical, emotional, verbal, or economic abuse
Judicial Response
The ruling of the Supreme Court in National Legal Authority vs Union of India[9] is considered a landmark for the transgender community. It made many recommendations for the transgender community's advancement to both the federal and state governments. It was the first case in which transgender people were granted the right to self-identification.
In the case of Arun Kumar vs. IG of Registration, Chennai, and Ors.[10], The Madras High Court ruled that under Section 5 of the Hindu Marriage Act, 1955, a marriage between a transwoman and a male who are both Hindus is legal. Furthermore, the marriage must be registered with the Registrar of Marriages.
Supreme Court affirmed in the case of Navtej Singh Johar v. Union of India[11], that, a transgender must not be denied the very fundamental human rights. The right to life and liberty, the right to empowerment and education, and the right to violation and exploitation are among these rights. Although the Constitution guarantees these rights, it fails to recognise them in a way that allows transgender people to live a dignified life.
In the case of Justice K.S. Puttaswamy Vs. Union Of India[12], the right to privacy, according to the court, is an expression of individual dignity, identity, and autonomy drawn principally from Article 21. Right to Life includes the right to sexual identity.
Critical Appraisal
The term transgender is thought to have been defined in a limited manner. People who do not follow the norm are said to have a lack of comprehension of the complexity. The terms intersex and transgender are used interchangeably. Intersex has been included in the transgender category. This is problematic since an intersex person may or may not identify as a transgender person.
The Standing Committee suggested in its report that the Act be as inclusive of intersex people as it is of transgender people. They suggested changing the Act's name to something more inclusive, such as Transgender and Intersex Persons (Protection of Rights).
The Act is progressive merely in name. It is considered to have allowed transgender people to self-identify. In actuality, it has mandated that transgender individuals acquire a proof of identity from the District Magistrate. This goes against the self-identification principle. Furthermore, there is no provision in the Act for recourse. The public will have no recourse if the D.M. refuses to provide the certificate.
The certificate will be issued by the District Magistrate "after following such procedure and in such form and manner, within such time, as may be prescribed specifying the gender," according to the Act. However, there is no definition of "process"[13] in the Act.
Furthermore, the Act says that if a transgender person has sex-change surgery, they must apply for a "updated certificate" from the D.M. To get the amended certificate, a certificate attesting to the surgery from the Medical Superintendent or Chief Medical Officer of the institution where the surgery took place is required. Only after the DM is satisfied with the appropriateness of the certificate granted by the Chief Medical Officer[14] does the DM issue the updated certificate. As a result, a closer examination reveals that the Act does provide a "implied and indirect" screening method for transgender people seeking a certificate.
The Supreme Court's directives in the National Legal Services Authority vs. Union of India[15] case was anticipated to culminate in the 2019 Act. The Supreme Court has ordered those states treat transgender people as "socially and educationally backward classes" and grant them all kinds of accommodations. Scholarships, fee exemptions, and free facilities, among other things, were recommended by the Expert Committee[16]. The Act, on the other hand, just includes the term "inclusive education system[17]" and does not go into detail on the resources available.
According to the Act, no matter how serious a transgender offence is, the perpetrator can only be sentenced to two years in prison. The punishment for reprehensible conduct, such as sexual abuse or risking the life of a transgender person, can be up to two years in prison. The existing sections of the IPC were supposed to be used to criminalize these offences. The Act, on the other hand, is a watered-down version of the IPC. Rape has a minimum sentence of seven years in jail under the Indian Penal Code. As a result, it is a violation of a trans person's right to bodily integrity.
Conclusion
It is conceivable that the Act may have been much greater than it is now. It could have worked out better with so much thought and effort put into the writing of the different bills for this Act. The Act isn't optimal because of the government's and other authorities' hurried choices. Many of the transgender community's questions have gone unanswered. Amends can be made by taking into account the proposals provided by those who are directly affected by the Act's provisions.
The curtailed Transgender Persons (Protection of Rights) Act of 2019 infringes the NALSA judgement by ignoring the transgender community's essential rights, bodily autonomy, and dignity. It undermines people's right to gender self-determination by subjecting them to psychological, medical, and public scrutiny.
On the other hand, the Supreme Court's decision to strike down Section 377 is positive evidence of the state's commitment to acknowledging varied partnerships and families. The Act must offer fair social, economic, and civil rights, as well as protection from abuse and discrimination, in order to protect the community's interests. Before the guidelines are formalized, the transgender community must be consulted.
The public consultation process has to be extended to include more people and give ample time for the regulations to be reviewed. The administration should consider extending the consultation time until people are ready to mobilize and appropriately express their concerns in a secure manner. It is vital to provide the transgender people with equal constitutional rights in order to empower them, reduce societal stigma, and improve their socioeconomic situation.
"While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight – there is a most certainly shame and dishonour in being a homophobe, a transphobe and a bigot." - Standing Committee
References
Acts:
- Transgender Persons (Protection of Rights) Act, 2019
- https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019
- https://www.latestlaws.com/articles/all-about-transgender-persons-protection-of-rights-act-2019/
- https://www.ibanet.org/article/0f3ae21b-0170-4bf7-95dd-45b07ef1caf6
- https://www.mondaq.com/india/employee-rights-labour-relations/851520/analysis-transgender-persons-protection-of-the-rights-bill-2019
- https://www.scconline.com/blog/post/2020/06/25/transgender-persons-protection-of-rights-act-2019-enduring-struggle-for-gender-rights-recognition/
- http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
- https://www.orfonline.org/expert-speak/pride-month-2020-68965/
- https://www.hindustantimes.com/india-news/supreme-court-notice-to-centre-on-plea-against-transgender-act/story-HfBrPZBTFmusm9theecWoL.html
- https://scroll.in/article/944943/explainer-despite-criticism-the-transgender-persons-bill-was-just-passed-whats-next
- https://feminisminindia.com/2019/08/05/critique-transgender-persons-protection-of-rights-bill-2019/
- https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.ece
- https://www.ijlmh.com/wp-content/uploads/The-Transgender-Persons-Protection-of-Rights-Act-2019-A-Critical-Analysis.pdf
- https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/#:~:text=The%20Court%20held%20that%20the,primarily%20derived%20from%20Article%2021.
- https://legiteye.com/critical-analysis-of-transgender-persons-protection-of-rights-act-2019-by-neha-tripathi-and-soumya-rajsingh/
- (2014) 5 SCC 438
- Section 2(k) of the Act
- Section 3 of the Act
- Section 12 of the Act
- Section 15 of the Act
- Chapter VI, Section 4-7 of the Act
- Sections 16 & 17
- Section 18
- Supra 1
- 2019 SCC OnLine Mad 8779
- (2018) 10 SCC 1
- (2017) 10 SCC 1
- Section 6(1) of the Act
- Section 7 of the Act
- Supra 1
- Ministry of Social Justice and Welfare," Transgender Persons (Protection of Rights) Bill, 2016", available at accessed 16 November 2020
- Section 2(d)
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