Societal exclusion of Transgender individuals

Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019

1. Definitions
   The definitions under the act are non-inclusive and inadequate with respect to the definitions such as transgender persons, inclusive education which do not fully capture the essence of the words.
    
2. Section 3-17 of the Act
   These sections impose conditions on the right of transgender individuals with respect to their gender identity and deem it necessary to have a 'Sex reassignment surgery' in order to get a change in gender certificate which violates the provisions of article 21.
    
3. The absence of certain provisions
   There is also non-inclusivity of provisions such as reservation in the educational and public employment institutions, which was stated in the NALSA judgement, thus making the act inadequate.
    
4. Offences and penalties
   The offences and penalties including sexual offences against the Transgender community has minimal punishment from 6 months to 2 years . In section 375 of IPC, the minimum punishment for rape is 7 years and thus, such a provision of the act violates the Right to Equality and deems the same crimes against transgender community to be less grave in nature, even though they are very vulnerable to sexual abuse.
    

Non inclusivity of Transgender persons during the formulation of the Act

Societal exclusion of Transgender individuals

Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019

1. Definitions:
   
   1. Section 2k of the act defines a transgender person but is a non – inclusive definition as it includes only 4 communities namely: Kinner, Hijra, Aravani and Jogta. However, it does not include gender non-conforming individuals and people from other communities such as Nupa Maanba from Manipur, Thirunangais from Tamil Nadu anong others. Thus, rather than Transgender being an umbrella term, it has a restrictive definition.
      
      The term also includes people of intersex variation which in itself is a different concept. Thus, it seems that the act is conflating sex and gender, and in the process is diminishing the capacity to understand the needs of the transgender community by intertwining the concept of sex and gender.
       
   2. Author is also of the opinion that the term "inclusive education" as under section 2 is incomplete as it does not address the issue of sensitization of all students towards gender non -conforming individuals.
       

2. Sections 3-17

   Section 4 of the act is a progressive step as it recognizes the r right to a self – perceived identify themselves of all transgender individuals. However, this section is watered down by the subsequent sections, from section 4 (2) through to section 7, which apply conditions on this recognition either through the act or by the requirement of ' Sex Reassignment Surgery' in order to receive a revised certificate of the gender, thus enforcing the need for surgery in order to accept someone's gender identity and posing conditions on the self-expression of gender as ruled in the NALSA judgement.
   
   This screening process is constitutionally flawed as it goes against the principles enshrined under article 21 of the Indian constitution of freedom of expressing gender identity. In NALSA, judgement, the Supreme Court rejected pathological or medical or pathological standard to determine an individual's gender, and recognized that "transgender" constituted a standalone gender for individuals. Thus, this provision goes against the judgement.
   
   Section 15 describes the healthcare services that the competent government must provide for transgender people. Separate centers for the transgender community, under clause (a) however, will further stigmatize and isolate the community. According to the author, this provision ironically does not prevent discrimination, but rather codifies it.
    
3. The absence of certain provisions
   The Central and State Governments were ordered in the National Legal Services Authority v. Union of India 2014 case to offer transgender community reservations in educational institutions and public employment and regard them as socially and economically backward classes. However, there is no mention of the reservation in the act.
    
4. Offences and penalties are inadequate
   Punishment for sexual abuse against transgender not adequate. Under section 375 of IPC, the minimum punishment for rape is 7 years. However, in this act, only 6 months minimum and maximum for 2 years with fine is the punishment for all crimes, including sexual offences.
   
   This violates article 14 of the constitution even though transgender community is very vulnerable to such crimes. There is thus discrimination in even giving justice to the Transgender community and many rights mentioned in the act have no legal remedies and thus can be said to be rights that are not enforceable.

Non-Inclusivity Of Transgender Persons In The Formation Of The Act

1. The first topic for literature review which deals with the society and the status of transgender individuals within it, informs us that the transgender individuals are vulnerable and are often targeted by their own families and have to live in isolation. Owing to such societal conditions, they are often left poor and have to resort to prostitution. They also face prejudice in the form of deliberate misgendering and refusal of treatment at the hands of healthcare professionals.
    
2. Based on the doctrinal research, the researcher believes that in order for the societal conditions to better, there needs to be compulsory gender sensitization so that the misunderstanding and lack of awareness which gives rise to prejudice and transphobia among the masses can be overcome. Simultaneously, the prejudice against sex workers needs to be tackled. Providing laws that aim for the welfare of sex workers and transgender individuals and the entirety of the LGBT community such as the Navtej Singh Johar[10] judgement which decimalized homosexuality will help the transgender individuals gain legal rights and be accepted within the society[11].
    

Non-Inclusion Of Transgender Persons In The Formation Of The Act