Updated: Aug 26, 2020
The Government of India(GoI) on 5 December 2019 enacted the Transgender Act, 2019 after a string of rejections of the previous bills by the transgender group. The Act, to the community’s utter disappointment, fell short in bucking down to the issues which the transgender community has been fighting for over decades. As it is said, sex is what you are born with, gender is what you recognize and sexuality is what you discover. Ignoring the drawbacks of previous bills and the demands for considerable changes, the GoI has blatantly employed the same strategies which were used in enacting the previous bills. A country which is home to thousands of cultures and communities has yet again failed to dignify the existence of this community. The article makes an effort to critically analyse the latest development regarding transgender rights viz. Transgender Act, 2019.
A string of Attempts made by the Government on the Issue.
In 2014, an expert committee was formulated to submit a detailed report on the matter pertaining to transgender community. Accordingly, in the same year, a bill was introduced regarding the issue but was never brought to vote in the Lok Sabha. In 2016, the GoI made another attempt of regulating and protecting transgenders but it was opposed as the bill blatantly failed to address issues like marriage, divorce and the definition of “transgender” was also perceived to be controversial. In 2018, yet another failed attempt was made by the government, which was opposed as it prohibited begging and criminalised it. Finally, in 2019, the government introduced The Transgender Act, 2019 which was expected to be a ray of hope and a pool of opportunities for transgenders. This attempt again proved to be a disappointment to the public on many levels and the fire of protests and criticism ignited in the community.
The 2019 Act- Amalgamation of Controversy and Lack of Concern
Section 2(k) of the Act lays down the definition and the scope of ‘transgender’. The definition of transgender mentions other gender identities such as transwoman, a transman and even person with an intersex variation. The definition comes across to be very vague as it fails to define the other gender identities separately. To satisfy the international standards, the government very conveniently slides the definition of “person with intersex variation” in Section 2(i) and also includes it in the definition of ‘transgender’ without any concern or recognition of the various health issues intersex persons face. The lack of clarity on who is actually benefitted from the Act shows how little the government is concerned about the community. The definition requires a better understanding of the word “trans” and needs to reconsider which gender identities should or should not be included in the definition.
The Act dedicates an entire chapter for the prohibition of discrimination against the transgender community. The detailed inclusiveness of offences in the chapter gives an impression of security to the beneficiaries on the face of it. A thorough reading of this chapter discovers that the lack of authority and power to enforce this prohibition has made this section a bunch of teeth scattered, incapable of any change. The chapter does not provide an effective redressal system against the discrimination nor does it mention the effective authority to approach if any of the mentioned acts are committed. Therefore, it is plagued by lack of enforcing authority, lack of remedial measures for the victim.
Sections 4 to 7 are dedicated to the recognition of the identity of transgender persons. The process of this recognition not only violates the right to privacy but also exposes an individual through a procedure of humiliation. As per this process, the identity of an individual is decided by a district magistrate. He issues a certificate based on the submission of some documents, the information regarding which still remains unanswered. The archaic understanding that a sex reassignment surgery is required to change the gender identity to male or female undermines the right to choice of an individual. Further, the sections allow an individual to change only the first name. This strengthens the patriarchal and caste bounds of our society that is tainting the legislative power of the government.
Section 16 provides the formulation of National Council for Transgender Persons. In a council of 30 members, the transgender community is represented by a bare minimum of five persons. This recruitment too, is in the hands of the central government. The whims and fancies of the government will not only make us question the independent thinking capacity of the members but will also raise doubts on the independence of the council from the government.
Section 18 mentions the offences and the subsequent penalties that may be inflicted on the commission of these offences. The mincing and manipulation of words that ultimately criminalize begging as sex work (something which was criticized in 2018 bill) during the implementation of this clause has made Section 18(a) redundant. A maximum of two years of punishment is provided for a heinous offence of sexual abuse as mentioned in Section 18(d). The same offence carries a whopping ten years of imprisonment for cisgender women under the Indian Penal Code. This sought of discrimination is a disparagement to the rights of bodily integrity and dignity of transpersons.
A comparison of the issues raised by the transgenders and that addressed by the government stipulates that the Act faces innumerable other deficiencies and the abovementioned deficiencies are just the tip of the iceberg. Every chapter of the Act showcases some sort of vagueness where either a sense of authority is lacking or a proper procedure regarding the same has not been provided. The Act fails to prescribe a proper protocol for availing the health benefits by this community, rendering the most significant concern unanswered because the transgenders are not only exposed to diseases like HIV but a separate understanding of the fertility issues and the surgeries opted by the community is required. The Act has adopted an insensitive attitude towards the protection and rehabilitation of transgenders. The insensitivity, violence discrimination and abuse faced by the community in their homes have been blatantly ignored while formulating these sections. The independence of the complaint officer remains a mystery as no procedure has been finalized on how these complaints are to be filed.
A Gross Violation of Constitution and Utter Disrespect of Justice- the Legal Consequence of these Deficiencies.
The first breakthrough that the transgender community witnessed that preached inclusiveness of the transgenders in the society was the case of Naz Foundation v. NCT of Delhi (2009) where it was held that, “discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 153”.
The next breakthrough was witnessed in 2014 when a division bench delivered its judgement in the case of NALSA v. UoI. The judgement ushered in recognition of various political and civil rights of the transgenders. The Court declared that transgender people have the fundamental right to change their gender identity without resorting to any surgery. While directing the government for equal treatment of this community and recognizing the third gender by relying on Article 15, it provided a sense of self-identity to the transgender people. The bench further declared transgenders as socially and economically backward class and provided reservation in education and jobs. The Transgender Act, 2019 snatches this very sense of self-hood from the transgender community by subjecting it to the long humiliating procedures of recognition infringing their right to privacy. The welfare schemes formulated are redundant and the actions taken under the Act are a hollow promise of protection.
Constitution of India is “sex blind”. In essence, our Constitution’s primary conception of equality is that sex is irrelevant when assessing the rights of an individual. Article 14 provides equality before the law, Article 15 prohibits discrimination on the basis of sex and Article 16 dictates that equal employment opportunities must be provided to everyone. The criteria for citizenship under the Citizenship Act, 1955 mentions no such requirement of a particular sex or gender identity. Section 3(42) of the General Clauses Act, 1897 defines a person as “any company or association or body of individuals, whether incorporated or not”. A harmonious reading of these norms indicates that the core of our law promotes no kind of discrimination on the basis of sex.
The Act violates the very spirit of the Constitution by advocating vagueness and lack of sensitivity for the community. The quintessential of this would be the mincing of words in Section 18(a). The 2018 bill was widely criticized for criminalizing begging and other issues. Section 18(a) proves to be redundant in a way that, firstly, The Bonded Labor System (Abolition) Act, 1976 is already in force to address such kind of offences and secondly, explicit mention of this offence points to criminalizing begging and sex work when implemented. This proves that the government has not done away with the old orthodox strategies and through manipulation is violating the letter and spirit of the Constitution by promoting inequality and arbitrariness.
The transgender community has voiced in perspicuous terms the demands that place them on an equal footing in the society. However, failed protests and negotiations have dragged the community to the brink of giving up. The dignity of their existence is entirely based on the whims of an apathetic administration. These hollow efforts urgently need to be replaced by ones that seriously address the real issues. This might lead to increased participation of transgenders in law and decision making which is a one-step forward for an effective change. The biggest setback that our society faces is the resistance against transgenders as a community. Sensitisation of this issue on a large scale to promote inclusiveness of this group and not tagging them as an aberration is needed. This battle of demanding right needs to be fought with unity and a broad acceptance to the community (claiming their most basic human right).
Title Image Source: Scoopwhoop via Scroll.
Favi Singla is a third-year law student at Gujarat National Law University who is into exploring different areas of law and aiming to bring a change in our society for a better tomorrow.