The golden thread that runs through the equality scheme of the Indian constitution (Articles 14,15,16, 19 and 21) is ‘enjoyment of life by all citizens and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status and gender.’
One of the basic tenets of the equality scheme lies in the recognition and acknowledgement of the ‘right of choice and self-determination’. Determination of the gender to which a person belongs and relates is intrinsic to their right of self-determination and their dignity.
Acknowledging that Indian laws are substantially binary in nature, recognising only male and female genders, the Hon’ble Supreme Court of India (SC) in its order in the case of National Legal Services Authority vs. Union of India (dated 15 April 2014, AIR 2014 SC 1863, the ‘NALSA Judgement’), declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and for the purposes of laws enacted by the parliament and state legislatures.
Non-recognition of the Third Gender in the Indian legal framework has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as in Indian workplaces. In the wake of the NALSA Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act, 2019 (the ‘2019 Act’).
WHO EXACTLY ARE TRANSGENDERS?
‘Transgender’ as defined in the Act, refers to and includes all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex
reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.
Transgender are the people with gender identity which differs from their sex assigned at birth. Taking an example, any person born as a female but wanting to acknowledge herself/himself as male or a person born as a male but wanting to acknowledge himself/herself as female. Any sort of gender identity which a person wants to acknowledge himself/herself as but is not the same as their gender identity by birth is considered as transgender. To denote the transgenders, there are several terms practiced around the world such as; Non-Binary or Genderqueer, Transwomen or Transmen, Cisgender and Cross-dresser.
Transgender community over the years has been facing a lot of trouble in the society. They have mostly in the past have never been even considered as part of the society, they have been shunned, kept aside from the general society. Never a transgender person found in studying the same school, university or working at the same offices until recently. All this problem has in at large has led to a lot of social discrimination with them, ultimately resulting in the violation of basic fundamental right. One has to understand that transgenders are not a different species, they are generally outcasted, majority have never considered them as part of the society or somebody as equal to all other people in the society and this is the issue which has resulted in a huge amount of discrimination and inequality suffered by them over the years.
ROAD TO RECOGNIZE TRANSGENDER AS A THIRD GENDER.
In 2009, election commission decided that transgender as a third gender can file and decide when they want to move ahead to go and vote, meaning, they were recognized by the election commission and gave them the opportunity to vote where they may acknowledge themselves neither as a male or a female in the
society but as a third gender during the elections. But this was only for the purpose of elections, still no hint at recognizing them as a different gender altogether with fundamental rights and equal status in the society.
This issue was recognized in 2012, where a petition was filed by Poojya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathi, a transgender activist, both the parties to the petition (petitioners) along with National Authority of Legal Services in India (NALSA) filed this petition raising concerns pertaining to the Transgender Society, the case went to Supreme Court of India and a two Judge Bench was formed and finally when in 2014, the celebrated judgment was delivered, transgender were acknowledged as a third gender in the country. This judgment acknowledged the rights and status of the community and recognized their basic fundamental rights in the same manner as they are available to any men or women under the Constitution of India. This judgment finally made sure to discontinue the long road of discrimination and denial of basic rights faced by the trans community. The Supreme Court through its Judgment, stepped towards removing the stigma attached to the entire transgender community in the majority of population by accepting them in the society as men and women are in the country.
At last, Supreme Court through its Judgment covered various important aspects as to how the discrimination and inequality suffered by the transgenders shall be removed.
Firstly, that the transgender as a gender to be denoted by “X”, similarly as a Male/Man denoted by the letter “M” and a Woman/Female being denoted by the letter “F”.
Secondly, SC recognized that all the fundamental rights are available to the third gender in the same manner as they are to men and women and in no manner, they shall be discriminated at any level in the society.
Thirdly, the “Psychological Test” over “Biological Test”, meaning, prior to the SC’s decision, it was compulsory or transgenders were forced to go through the Sex Re-Assignment Surgery and after that only, when the person has gone through biological modification or alteration in his/her body, they were allowed to acknowledge themselves as transgender. But the SC judgment reversed this and made it clear that it is not compulsory for the person to go through the entire SRS procedure, Psychological Test is more important and sufficient at the first place if the particular person does not want to go through the biological procedure. Psychologically what that particular person was able to associate themselves had to be given paramount importance after the SC decision.
Furthermore, forcing the trans person to go through the SRS procedure or coercing them was made illegal through the judgment.
Other important aspect was to provide transgender with proper sanitation facility along with separate washrooms, but the implementation of the same is still pending at large scale which is quiet saddening and disheartening that even after the SC orders, the government and the authorities are still not able to implement this.
SC through its judgment advised that there should be social awareness among the masses to remove stigma attached with transgenders. The next very important area the SC covered was the reservation and socio-economic rights for the welfare of the community as SC viewed that such long years of suffering the discrimination and inequality faced by this community requires the upliftment of the community.
THE ROLE OF LEGISLATURE AND THE GOVERNMENT
Now, after the Judgment, the legislature went ahead to enact a law to make sure that the aspects and the decision of the SC is taken care of through putting a framework at place where implementation of the same is done so that no one is allowed to defeat the sole purpose of SC’s intent to uplift the transgender community. Hence, the legislature came up with the Transgender Persons (Protection of Rights) Act, 2019. The said bill was passed in 2019, but the first draft appeared in the Lok Sabha in 2016, now since then it had a lot of issues like SRS was still given importance to the point that if a person wants to acknowledge himself/herself as a third gender, the particular person needs to go through the biological procedure known as SRS. Other issues like illegality of begging where it was considered as an offence and anyone found begging in accordance with the act would be penalized or punished, but there is sufficient data which purports to the fact that begging is where many of the transgender community derive their livelihood from.
Thus, to take care of such major issues, the bill was sent back to standing committee and was again introduced in Lok Sabha in 2018 with 17 amendments as proposed and advised by the standing committee in 2018, where the most important amendments finally removed criminalization of begging and issuance of transgender certificate by district screening committee. So, ultimately, 2018 bill went ahead and passed by the parliament in 2019, and became an act.
The main question arises now that whether the act of 2019 is sufficient enough to be the ultimate legislation, we require in a country to give transgender as the ultimate right or the acceptance in the society? The answer is “NO”.
Why? Because the act still has some certain issues and shortcomings.
Firstly, it is regressive and in pure violation of the NALSA Judgement, SC laid down a lot of directives as to provision for reservation in educational institutions and jobs and initially was not taken care by the Act until recently, the Transgender Persons (Protection of Rights) Act 2019 and rules under the legislation mandated the central and state governments to take up schemes that address access to health, education, welfare, shelter and economic support for livelihoods. But in reality, is still not implemented by the Government and till date there is no proposal by the Centre to enforce reservations for the community.
Secondly, inadequate punishment for crime against transgender person. Punishment under IPC when offence committed against any person, excluding third gender, is comparatively much severe when compared to the punishment mentioned under the 2019 Act, where it states the punishment committed by a person committed against a third gender or a transgender. So, this inadequacy is quite unjustified as the intent behind the severity of punishment is to raise or bring a level of fear into someone’s mind so that the person thinks twice before committing such act as, the severe the punishment in relation with the offence, the lesser the chance of commitment of such offence. In entirety, the provision under the 2019 Act, defeats the purpose of making such person equally punishable when committing an offence against the Transgender person.
It fails to incorporate yet other principles in line with the NALSA Judgment in 2014, such as the right of transgender people to declare their self-perceived gender identity without undergoing sex reassignment surgery, Under the provisions of the 2019 act, a transgender person can apply to the district magistrate for a transgender person certificate which will give them the right to change the name on their birth certificate and have all documents updated accordingly. However, similar to the 2018 bill provisions, a transgender person
can be identified as male or female only after applying for a revised certificate to the district magistrate, post sex reassignment surgery.
It also ensured a family-life for transgender children, by prohibiting their separation from their family, without taking into account harassment and discrimination they may face within their family as a result of which they may voluntarily choose to be separated and to reside instead with other transgender people. A transgender child, as per the provisions, can be separated from their family only by a court order
THE ROAD AHEAD
On 27 January 2020, the Supreme Court issued a notice to the central government in a petition challenging the constitutionality of the act. The petition has been filed by Adv. Swati Bidhan Baruah challenging the law and is still pending in the court of law.
On 18 April 2020, the government published Draft Transgender Persons (Protection of Rights) Rules, 2020 in exercise of its powers under the 2019 statute, seeking comments and suggestions on the same from the public.
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