We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws.
It all started when the Supreme Court recognized ‘third gender’ in the National Legal Service Authority vs. Union of India and others (NALSA judgment). The transgender community has always been deprived of their basic rights and necessities, which has led to a ‘social-stigma’ among society as a whole. The ‘third gender’ was recognized in the year 2014, and the government was just eschewing the issue every year.
Finally, the Transgender Persons (Protection of Rights) Bill, 2019 has been passed, and the rights of transgender people have been recognized and codified. But despite this, the people of the transgender community are unhappy with the codification of their rights because some of the issues were not taken into consideration by the Legislature. The bill can be divided into four major parts:
1. Prohibition on discrimination against transgender people
The legislature attempts to cover most of the institutions where the transgender people have faced discrimination on the basis of their ‘gender’ and ‘outlook’. The state shall not discriminate on the ground that the person is a ‘transgender’ and the grounds have been summarized below:
- In educational institutes, there can be no denial or discontinuation of services.
- Under any employment or occupation, there shall be no denial or termination.
- The healthcare services shall be equally provided to transgender persons, and there shall be no denial or discrimination.
- No denial, discontinuation or unfair treatment shall be given in relation to the enjoyment of goods, access to property or any public service.
- There shall be no unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property.
- There shall be no unfair treatment or discrimination in terms of holding public or private office.
2. Recognition of third gender: Transgender
The process of recognition
- Application to the District Magistrate: According to section 5 of the bill, a Transgender person shall make an application to the District Magistrate for gender recognition, and the authorities shall certify the same.
- Official records: The authority shall maintain the records and documentation of such certifications and a certificate shall be issued under section 5 of the bill.
- Revision of records in case of medical surgery: In cases where the transgender person has gone through treatment or surgery related to gender change, shall make an application to the District Magistrate and the Medical officer of the concerned area and the same shall revise the official records in accordance with the details.
3. The welfare measures by the government
The competent government authorities shall take the following measures to secure full participation of transgender people:
- It shall protect the rights and interest of the transgender persons, and moreover, it shall ensure their access to the schemes which are prepared in accordance with the act.
- It shall protect the transgender persons from any discrimination; the government shall formulate such schemes which shall be sensitive and non-stigmatizing.
- It shall take into consideration the issues related to rehabilitation of such persons, along with their rescue from places where they have been forcefully confined.
- It shall protect the rights of these people and shall fully ensure the participation of a transgender person in cultural and recreational activities.
4. Offences and punishments
The act has taken into consideration the atrocities which the transgender community have gone through. The offences and penalties are:
5. Place of residence and complaint officer
Chapter V of the bill talks about the residential status of such persons, in cases when any child is transgender, then the child shall not be discriminated on such grounds. The obligations of such persons are as follows:
- Every establishment shall ensure that the basic facilities are equally provided to the transgender persons, and it shall not discriminate in any matter regarding employment.
- Complaint officer: Every establishment shall appoint a complaint officer, who shall take into consideration the complaints and queries related to such persons. In case there is any violation of the provisions of the act, the complaint officer shall take the issue into consideration immediately.
- No child shall be separated on the ground that the child is transgender. Every transgender
- person shall have a right to reside in the household and shall be treated equally.
- In cases where the parents are not able to take care of the transgender person, thee shall be placed in the rehabilitation centre.
6. Composition of National Council for Transgender
A National council shall be formulated by the appropriate government which shall confer its powers to protect the interests of the transgender persons. The National council shall consist of:
- The council shall act as an advisory body to the central government.
- The council shall recommend ideas and remedies for the formulation of policies, legislation and projects related to the transgender community.
- The council shall keep a check on the implementation of such policies and shall evaluate the impact of such policies.
- The council shall take into consideration the grievances of transgender persons and redress them.
The Problematic Part Of The Bill:
1. Certification process: an attack on personal liberty and freedom
The Act recognizes transgender people as ‘third gender’ and states the procedure through which the identification can be sought. The most controversial part of this section is about ‘Certification for recognition’ because the main objective of the bill is to eliminate the discriminating practices against the transgender people, but if the same is being done through a certification process, it would be problematic and arbitrary.
If we analyze the Supreme Court’s judgment in the NALSA case, it clearly states that ‘words’ are enough to identify gender. But here, the transgender people are unnecessarily going through a complicated process in which there is no space for any appeal against the authority’s order.
2. Less punishment for sexual abuse:
Another concern which revolves around the bill is section 18 of the Act, which states that the maximum punishment for sexual or physical abuse with any transgender person is only up to two years. Despite knowing about the atrocities which the transgender community has faced during the years, the legislature should have included a separate clause relating to ‘sexual abuse and harassment’, and the punishment should be increased up to 7 years.
3. No provisions for reservation for transgender persons
One of the main concerns of the transgender activists is about the reservation in employment and other establishments. Transgender children have been facing discrimination in educational institutions. Moreover, there is no specific scheme to provide special assistance or awareness about the same.
If the proposal for reservation is affirmed, then there will be a sense of security and privilege for the transgender community, which can be included into the definition of ‘Minorities’ Para 129 of the NALSA judgment that clearly directed the appropriate government to include the transgender persons under reservation policies. The same should be given to them in educational institutes and establishments.
Para 129. We, therefore, declare:
“We direct the centre and the state governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
4. Bill is silent on political and social rights:
The bill is absolutely silent on the basic social and political rights of the Transgender persons. Despite the observations made by the court regarding the recognition of these rights, the same has been rightly highlighted by the Supreme Court in the NALSA judgment in Paragraph 60-
“TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.”
Freedom Of Choice Vandalized
The apex court has rightly observed in Navjet Singh Johar v Union of India that individual choice is one of the basic rights of any individual. Hence, if we take this bill into consideration, this basic right has been vandalized, and the transgender persons before expressing their identity need to ‘certify’ the same. It is clear discrimination against them—as in the case of ‘men’ and ‘women’, there is no certification or official process to get identification for their identity. Justice R.F. Nariman referred to a similar case of Shafin Jahan v. Asokan K.M:
“It is obligatory to state here that the expression of choice in accord with the law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating from there on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space, but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy, and it strengthens the core norms of the Constitution.
Choosing a faith is the substratum of individuality, and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.”
The Road Ahead
The fear of statelessness and the Citizenship Amendment Act, 2019
Recently, the government has passed one of the most controversial bills which exclude the Muslim community from the list of immigrants who can apply for naturalization. One a serious note, there is not only one community which has been excluded because even those minorities, which have not been in the limelight, are under threat. The transgender community is under fear of statelessness because of this new Act.
Around 2,000 transgender persons were excluded from the previous NRC list
Recently, the process of National Register of Citizenship was executed, and nearly 2,000 transgender persons were excluded from the list because in 1971 there was no column for ‘third gender’, and they were forcefully admitted as ‘male’ or ‘female’. So now, the same people who fearlessly identified their gender after the NALSA judgment (which recognized the third gender) have been excluded from the list because they cannot prove that they are the same people who registered themselves forcefully in 1971.
The fear of blood-line
It is a harsh accepted truth that the biological families exploit most transgender persons, and ultimately, they leave their biological family and live with their own community. How will a person prove their ‘blood-relation’ with a family that has been residing away from their biological home? This is nothing but a direct attack on the community. Keeping in mind the provisions of the bill and the CAA, it would cause a great disaster for them in proving themselves as ‘citizens’ in accordance with the act and the NRC.
“Many trans people don’t have documents in the names they have chosen for themselves. How will they prove? We challenge biological families, and we choose our own families. Why are you pushing us towards our biological families who are oppressive towards women and the queer community?”, Rituparna Borah, Queer rights activist.
It is an undisputed fact that the transgender community has been deprived of their basic rights since ages. Even the basic right to vote was recognized after the efforts of the All India Hijra Kalyan Sabha, which they finally got in 1994. It is not the first time when such a sensitive issue has been codified without any debate and discussion within the parliament, and hence, the outcome is easily visible.
The most important part is about the implementation of the bill because, in most of the cases, the ground level implementation is rarely visible. The concerned authorities should promote and accelerate the welfare schemes which are going to be prepared by them. Because in major parts of the country, these people are discriminated, and such discrimination is the reason why transgender persons are lagging way behind.
“The purpose of law is the establishment of the welfare of society, and a society whose members enjoy welfare and happiness may be described as a just society. It is a negation of justice to say that some members, some groups, some minorities, and some individuals do not have welfare. On the other hand, they suffer from ill-fare. So it is axiomatic that law if it is to fulfill itself, must produce a contented, dynamic society which is at once meting out justice to its members,” Justice Iyer
About the author: Areebuddin is a law student at Aligarh Muslim University and a member of Indian Civil Liberties Union.