Transgender

The fight of transgenders for equal rights is decades old in India. After some consecutive judgements government of India tried to legislate a Bill on transgender rights. Earlier a Bill was drafted in 2016. It had many controversial provisions, therefore it failed to pass in Parliament. Recently, the government brought another bill removing some of the earlier controversial provisions, and this bill successfully passed on the floor of Rajya Sabha. A critical analysis of the bill shows that this bill does not comply with many of the guidelines suggested under various judgements of the Supreme Court as well as some of the progressive High Courts judgements.

Judgments Over The Years

1. Naz Foundation v Government of NCT Delhi or as it is popularly known as Naz Judgement is a 2009 judgement by the Delhi High Court. In this judgement for the first time, Delhi High Court declared Section 377 to be unconstitutional.
2. In NALSA judgement of 2014, for the first time in legal history, Transgender people were recognised as citizens of this country. All the Fundamental Rights were extended to them and they were given the identity of the Third Gender.
3. Under NALSA judgement, the SC laid a comprehensive set of guidelines that every State must follow to bring Transgenders into public spheres and provide remedies for their marginalisation.
4. The Puttaswamy judgement expanded the scope of Article 21 of the Constitution of India which grants us Right to Life and Liberty to include Right to Privacy. Right to Privacy was also extended to every individual irrespective of their gender and sex. It grants Transgenders the autonomy and protection from State action while exercising their right to choose their partners.
5. Navtej Singh Johar v Union of India is the seminal judgement that decriminalized homosexuality in India. It struck down Section 377 to the extent that it criminalized sex between two consenting adults. It recognized that every individual irrespective of their gender identity and sexual orientation have the right to live with dignity, autonomy and make personal and private without State interference.
6. Arun Kumar v Inspector General of Registration, Tamil Nadu is a case from the Madras High Court which reads into the category of brides to include transwomen. Under the Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgement expands the category of women to include transgender people to identify as women to be brides as well. It takes the clause of self-identification as has been mentioned in the NALSA judgement, where a person can identify as any gender identity without needing a State or external body to verify their identity.

Bill Fails On Expectations

1. The Bill provides that a transgender person may make an application to the District Magistrate for a certificate of identity indicating the gender as ‘transgender’ and a revised certificate may be obtained if a transgender person undergoes surgery to change gender either as a male or female. This provision is in violation of NALSA v Union of India that had affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS).
2. The Bill does not provide for reservation in education and employment for transgender persons, going against the mandate in NALSA, which had clearly stated that the state must take measures “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”.
3. The Bill does not tackle the question of realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in Puttaswamy, Navtejsingh Johar, and NALSA judgements.
4. Despite including identities such as “genderqueer” and “persons with intersex variations” in the definition of “transgender”, the Bill has failed to incorporate the rights of such persons, putting them in danger of being excluded by a system which certifies people based on medical examination. It is a violation of NALSA as well as Navtej Singh Johar judgements.
5. The clauses such as “the rescue, protection and rehabilitation of transgender persons” could potentially give rise to police crackdowns against transgender persons, especially sex workers. It might also grant impunity to the police to arbitrarily arrest transgender persons under the pretext of “rescuing” them, and, use provisions of anti-beggary laws whose vagueness allows for disproportionate violence against the most marginalised communities.
6. While Bill seeks to prohibit discrimination, it does not explicitly define what constitutes discrimination. Whereas NALSA judgements clearly said that discrimination against transgenders amounts to discrimination under Article 15, which prohibits discrimination based on sex.

Bill Does Not Fail On Expectations

The Transgender Bill includes several progressive provisions as guided by the Supreme Court in various judgements. Some of these provisions are as follows;

1. It prohibits discrimination against a transgender person on grounds including denial, discontinuation or unfair treatment in educational establishments, services, employment, healthcare.
2. The provides that every transgender person will have the right to be included in their household, and in case the immediate family is unable to take care of the person, he/she may be placed in a rehabilitation centre.
3. It states that the government shall provide education, sports and recreational facilities for transgender people.
4. Provisions for separate HIV surveillance centres and sex reassignment surgeries should also be provided by the government.
5. The Bill mentions formulating transgender sensitive, non-stigmatising and nondiscriminatory welfare schemes and programmes.
6. The government should also take steps for the rescue, rehabilitation and protection of transgender persons.
7. The Bill states that every establishment will have to appoint a complaints officer to deal with complaints relating to the violation of any provisions.

The battle for equality and recognition for the transgenders has been long and still ongoing. However, judicial recognition to address rights and provide remedies matters for the project of equality and dignity. The Transgender Bill has many flaws and provisions against the guidelines given in many judgements. Our Parliament must not let down the community that fought for their rights for decades. Transgender people in India should be able to live with dignity and non-discrimination, and have equal access to education, employment, and health services.