Analysis of The Transgender Persons (Protection of Rights) Act, 2019

Jul4,2020 #Transgender Persons
Transgender Persons (Protection of Rights) Act, 2019
Transgender Persons (Protection of Rights) Act, 2019

By Nicole Karen Gomez

‘LOG KYA KAHENGE?’

One of the startling themes pervading in an Indian society is social interdependence.

People are deeply involved with one another, and for many, the greatest fear is the possibility of being left alone without social support.

Psychologically, due to intense emotional interdependence, absence of moral and practical support can bring failure in several aspects of life. For centuries, a socially neglected and marginalised sector of the society has been of transgender individuals.

‘Transgender’ is an umbrella term that describes people whose gender identity or expression does not correspond to the sex they were assigned at birth.

There are no explanations as to why certain individual’s personal identity and gender differ from their birth sex. Some believe it is due to biological factors, and experiences of childhood or adulthood are contributors.

Although in 2018, the World Health Organization (WHO) declared that being transgender is not a mental disorder. It is vital to understand the difference between gays, lesbians and transgender as sexual orientation is often confused with gender identity.

An intersex person cannot be identified as a transgender person. India being a developing country, the recognition of transgenders as another gender is progressing.

Transgenders are getting housing, education, employment, healthcare and foremost acceptance by the society but there is scope for improvement. The root of the trouble faced by transgenders is tolerance and acceptance majorly from their families due to which they have to leave their homes.

Families under immense societal pressure of being boycotted would think “log kya kahenge?” which means what people would say. In rural as well as urban areas, transgender are considered a taboo.

The State has lately been making efforts to overcome the existing gap of knowledge and compassion in the society simultaneously establishing an adequate legal framework.

Below is a timeline on how the transgender community was recognised by the law makers of India over the past decade.

YEAREVENT OF IMPORTANCE TO THE TRANSGENDER COMMUNITY
2009The High Court of Delhi ruled Section 377 and other legal prohibitions against treating consensual homosexual sex between adults was violation of fundamental rights provided by the Indian Constitution in Naz Foundation v. Govt. of NCT of Delhi.[1]
February 23, 2012The Ministry of Home Affairs raised opposition against decriminalization of homosexual activity as they believed it is immoral. The Central Government reversed its position declaring there was no legal error in decriminalizing homosexual activity on 28 February 2012.
January 28, 2014The Supreme Court of India dismissed the review petition on its verdict of Section 377 filed by the Central Government, Naz Foundation and several others.
December 18, 2015Shashi Tharoor who is a member of the Indian National Congress party, introduced a bill for the repeal of Section 377 in the House but it was rejected by a vote of 71-24.
February 2, 2016The Supreme Court decided to amend the criminalization of homosexual activity.
August 2017The Supreme Court unanimously ruled that the right to individual privacy is a fundamental right under the Constitution of India.  Further, the court mentioned an individual’s sexual orientation is a privacy issue.
January 2018The Supreme Court agreed to reconsider the validity of Section 377 through a larger bench. Several petitions were heard on 1 May 2018. The Government announced that they would not oppose the petitions and would instead leave the case “to the wisdom of the court”. A hearing began on 10 July 2018 and activists believed this case is the most significant breakthrough for gay rights since the country’s independence.
September 6, 2018 The Supreme Court unanimously gave the verdict that Section 377 is unconstitutional as it infringed the fundamental rights of autonomy, intimacy, and identity. Therefore, homosexuality in India was legalised explicitly overturning the 2013 judgment.
July 19, 2019The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha by the Minister for Social Justice and Empowerment.

Numerous objections were raised by activists and other individuals of the community against the Bill presented by Mr. Thaawarchand Gehlot, Minister for Social Justice and Empowerment. Some are discussed below:

  1. Change of gender identity in documents cannot be done without certification by the District Magistrate which would be provided after proof of a sex reassignment surgery is submitted. It is challenging to obtain such certificate when India lacks the medical infrastructure for the surgeries.
  2. Enforces a minor’s right of residence compelling any transperson below the age of 18 to reside with their natal family. Biological families and immediate community are often a source of gruesome violence and discrimination leading them to live separately. The rule needs to include a right to reside with chosen family thus expanding the ambit and definition of ‘family’ since it is often the chosen family that supports transpersons and consider their kith and kin.
  3. The rules initially criminalized ‘begging and sex work’ which was later replaced with criminalising ‘compelling and enticing.’ Although the rules do not offer reservations for employment and education, restrictions are placed on modes of income to necessary for survival.
  4. The provisions strongly focus on transwomen and hijras giving minute emphasis on the intersex, gender queer and transmen which again lead to discrimination within the community.

On November 26, the Parliament passed the bill to become the Transgender Persons (Protection of Rights) Act, 2019 and the Presidential assent was given on December 5, 2019.

The Act aims to end discrimination and ostracism against transgender persons. It also recognises and allows the right of self-perception of gender identity.

However, the Act is facing boundless criticism and resistance from the community as the mandate of the NALSA judgment[2] which guaranteed the right to self-perceived gender identity and directed the Government to pass such a Law has been ignored with the requirement to submit a report from a psychologist in order to obtain the certificate of identity under Rule 4 of the draft rules.

This can lead to an increase in pathologisation of transgender and intersex individuals as qualification required for the psychologists are not mentioned.

The amended draft rules are employing the same strategy of the earlier bills and are also noticed to suffer from serious conceptual flaws.

Homogenisation of varied identities under the single term ‘transgender’ violates the dignity of individuals and is against traditions of the community in several parts of India.

As the concerns earlier raised regarding the provisions of the Act still remain, one prominent dispute has been that it has mandated each individual who identifies as a transgender to procure a recognition certificate of identity issued by a District Magistrate.

The certificate would be provided by the District Magistrate in case a transgender person has undergone a gender change surgery.

According to the Law, they can obtain a certificate from the Medical facility where they had the operation, and apply for a change in their certificate.

Presently, medical protocol in India with respect to gender affirmative healthcare services for transgender persons, which includes sex reassignment surgeries are absent.

On April 18, 2020 the Government released the draft rules for the Transgender Persons (Protection of Rights) Act, 2019 and declared April 30, 2020 as the deadline for submission of comments.

Later, due to escalating public pressure, the last date was extended to May 18, 2020. The Government failed to follow the pre-legislative consultation policy which states that 30 days must be given for the submission of comments to the draft law or sub-ordinate legislation.

The release of Draft rules during the lockdown for preventing the spread of coronavirus pandemic has made it impossible for the members of the community to be a part of the consultative process.

The unfairness dealt by the community in the past can only be corrected through an active effort by the Government to recreate a discourse and the primary requirement is conducting consultations with the community.

The language of the draft rules is extremely insensitive, redundant with regard to the issues of the community and the proposed framework fails to account for the socio-cultural reality and diversity within the transgender and intersex community.

Further, English language is used exclusively in the public consultation stage creating a linguistic barrier in the consultation process wherefore the queer Indians who do not know English are marginalised and would not be able to participate in the Law making process without the aid of civil society organisations.

The discrimination against transgenders will cease when an enforcing authority is established, remedial measures are provided and punitive measures are taken against violators.

The Government needs to realise it is incumbent on them to develop comprehensive law for protection of rights and welfare of transgender and inter sex persons as currently equal rights seem a distant reality for the members of the community in India.

We should not let the culmination of hopes of the community go in vain and instead address their concerns with empathy and not apathy aiming for improved convolution of law.

REFERENCES

http://www.legalserviceindia.com/legal/article-2530-transgender-persons-protection-of-rights-act-2019.html


[1] Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277

[2] National Legal Service Authority vs Union Of India & Ors AIR 2014 SC 1863

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