TRANSGENDER- A THIRD GENDER – AN ANLAYSIS OF LAW AND LACUNA

Transgenders are persons who do not conform to their gender identity as compared to
their gender by birth. Their gender behavior or expressions do not match with their
biological sex. in India Transgender have a strong historical background from times
immemorial, as evident from the Vedic and puranic literature like Ramayana and
Mahabharata they are known Hijra as Aravani, Aruvani, Jagappa1. Hijras are officially
recognized as third gender in countries in the Indian subcontinent In India, transgender
mostly prefer to call themselves Kinnar or Kinner, referring to the mythological beings that
excel at song and dance. They are neither men nor women, by virtue of physical
appearance and psychologically [2].

Many hijras live in well-defined and organised all-hijra communities, led by a guru.[9] These

communities have consisted over generations of those who are in abject poverty, rejected by,
or flee, their family of origin. Many work as sex workers for survival.3
The word "hijra" is a Hindustani word.[12] It has traditionally been translated into English as
"eunuch" or "hermaphrodite", where "the irregularity of the male genitalia is central to the
definition".4However, in general hijras are born male, only a few having been born with
intersex variations.
CONSTITUTIONAL AND HUMAN RIGHT OF TRANSGENDER

Even after having non-discrimination as a fundamental right, discrimination and

violence is a major problem for transgenders. Provisions of the Constitution stipulates
under Article 14 iv  equality where the state shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India. Equality
includes the full and equal enjoyment of all rights and freedom. Additionally Articles
15 and 16 of the Constitution also prohibit discrimination against any citizen on
certain enumerated grounds including the ground of sex. These Articles prohibit all
forms of gender bias and gender based discrimination. Even after such protection
which is fundamental in nature, transgenders face discrimination, indirect violence in
society and are unable to compete at par with others. Ultimately they have to resort to
either begging or sex work.

Another provision which provides for freedom of speech and expression including
right to express self-identified gender, freedom to trade and profession, freedom to
move freely and reside and settle in any part of India as given under Article 19(1)(a)
of the Constitution of India. Self identified gender can be expressed through dress,
words, action or behavior or any other form. No restriction can be placed on one’s
personal appearance or choice of dressing, subject to the restrictions contained in
Article 19(2) of the Constitution. However, these transgenders are not encouraged in
work setup and other employment opportunities. They are generally not hired due to
their style of dressing. Thus this violates their fundamental rights and due to social
stigma they are unable to enforce their fundamental rights.

4
Despite the following international law provisions, India is still facing the problem of
discrimination, violence and deprived conditions oftransgenders. Article 6 of the UDHR 5 and
Article 16 of the ICCPR 6 recognize that every human being has the inherent right to live and this
right shall be protected by law and that no one shall be arbitrarily denied of that right

CURRENT LEGISLATIVE PROCEDURE:

These transgenders have been subject to metal harassment and cruelty throughout the ages. Social
stigma, discrimination, boycott from the society and family, absence of supportive family,
abusive environment, disowning from families and parents, no medium for education, depression
amongst transgenders, no housing facilities, harassment by police and they ultimately resort to
begging and sex work.

The intent of this legislation is to uplift transgenders and recognize their rights. Through this
legislation they will have a legal recourse in case of violation of their rights.

Everyone shall have a right to recognition, everywhere as a person before the law. However
torture against transgenders by the police is not reported and thereby India fails in achieving this
goal.

Article 17 of the ICCPR 7  states that no one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence or to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against such interference or
attacks. Article 7 of the ICCPR, also provides that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Again the tortious acts against the transgenders
isn’t paid much attention hardly any action or cases are registered to protect the transgenders.

The Transgender Persons (Protection of Rights) Act, 2019: an analysis

The definition of transgenders provided treats intersex and transgenders at the same pedestal.
However the judgment 8 stated that Gender identity refers to an individual’s self-identification as a
man, woman, transgender or other identified category. The judgment had liberal interpretation to
the term transgenders and allowed these persons to choose their genders as per their choice.
Whereas in the legislation fails to protect right to self-identification.

The Transgender Persons (Protection of Rights) Act, 2019 which was introduced as a Bill in Lok
Sabha on July 19, 2019 by Thaawarchand Gehlot, the Minister for Social Justice and
Empowerment, was finally signed on December 5, 2019 by the President of India 9. It consists of
nine chapters, a statement of objects and reasons, the president’s recommendation, a financial
memorandum and a memorandum regarding delegated legislation. The nine chapters elaborate on
the features of the Act which include the definition of a transgender person, prohibition against
discrimination against a transgender person, their right to residence, employment, education,
healthcare, welfare measures by the government, application of certificate of identity for every
transgender person, offences and penalties specified and recognised, a mention of the National
Council for Transgender persons (NCT) and its function.

Chapter I, Section 2 provides with the definitions used in the Bill. ‘Transgender’ is defined as a
person who is neither wholly female nor male, or a combination of female and male, or neither

5
Universal Declaration of Human Rights, UN General Assembly, December 10, 1948
6
International Covenant on Civil and Political Rights, 1966, UN General Assembly, December 16, 1966.
7
Ibid,
8
National Legal Services Authority V Union of India and Ors.(2014) 5 SCC 438

9
An unfortunate legacy, BibekDebroy, Indian Express, January 5, 2017
female nor male and whose sense of gender does not match with gender assigned to that person at
the time of birth and includes trans men and trans women, persons with intersex variations and
gender-queers. Additionally ‘establishment’ is defined as anybody or authority established by or
under the control of the Central or State Act or by the government and also includes any
company, body corporate, association or body of people or local authority which covers the
purview of private sector as well.

Chapter II (Section 3) provides for prohibition against discrimination in relation to education,

employment, health services, right to movement, right to enjoy goods and services, right to
reside, unfair treatment and also to acquire public office.

Chapter III (Sections 4-8) addresses recognition of identity of transgender. It stipulates for a
mechanism where transgender have right to self perceived gender identity. This can be done
through an application made to the District Magistrate for issuing certificate of identity as a
transgender person. This application is then referred to District Screening Committee comprising
of Chief Medical Officer, District Social Welfare Officer, a psychologist or psychiatrist, a
transgender representative and a government officer. This certificate will be the proof of
recognition of his identity. It further provides for the mechanism for change in certificate in case
of change in gender of the transgender.

Chapter IV (Section 9) lays down the measures to be taken by Government. These measures are to
protect the rights and interests which include steps to be taken for full participation and
acceptance of transgender in the society. They also extend to rescue, protection and rehabilitation
of transgender.

Chapter V (Section 10-13) stipulates the obligations of establishments and other persons such as
non-discrimination in relation to employment, right to residence without arbitrary interference,
rehabilitation and grievance redressal mechanism in an establishment of hundred people or more.

Chapter VI (Section 14-16) aims at educational, social security and health related issues of
transgender. It protects the fundamental rights of education, non-discrimination, welfare schemes
to support and facilitate livelihood, right to health including provision for separate HIV Sero-
Survellance Centers, Medical care like Sex Reassignment surgery, insurance schemes for
covering medical expenses and enhanced expertise and training for doctors to address specific
issues.

Chapter VII (Section 17-18) deals with National Council for Transgender which consists of
various members from Executive, Human Rights Commissions, and National Commission for
Women, representatives of transgender community and Non-GovernmentOrganizations. The
function of the council is to advise Central Government on policy formulation, monitor and
evaluate the impact of the policies and review and coordinate activities of all departments of
government relating to transgender.

Chapter VIII (Section 19) penalizes any person involved in enticing or compelling transgender to
beg or do forced labor, obstructing right to passage to public place, forcing to leave household
and harms or endangers the life of transgender with six to two months imprisonment and with
fine.

Chapter IX (Sections 20-24) deals with the miscellaneous provisions which includes grants by
central government and powers given to appropriate government to make rules, protection of
government or any local authority from any prosecutions for the actions taken by them in good
faith and power of the central government to remove the difficulties for the provisions which are
inconsistent with provisions of this bill.

SOME LACUNAES UNDER THE Act:

The Transgender Rights Act 2019 is an only slightly improved version of its antecedents. It has a
comparatively inclusive and more eclectic definition of the term ‘transgender’, and no more
includes the problematic provision requiring criminalisation of begging. However, there are
various gaps in the bill that present a misplaced understanding of ‘gender’ and limited equalising
potential:

Ambiguous language: Its language could be interpreted to mean transgender people are required
to have certain surgeries before legally changing their gender; “whether or not such person has
undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other
therapy”- Clause 2(k)
Intersex persons put under the umbrella of Transgender: Including intersex people without
acknowledging that intersex persons are not always transgender or transexual (both of which also
are different things) could mean that the bill is conflating sex and gender, thus diminishing its
capacity to understand the needs of the transgender persons; “transgender person means a person
whose gender does not match with the gender assigned to that person at birth and includes trans-
man or trans-woman, person with intersex variations” 10
Unclear legal gender recognition process: It is a two step process consisting of self-declaration
of identity followed by getting it confirmed by a medical and a legal authority, thus giving power
of denial to the said gender identity into another person’s hands, thus violating the Fundamental
Right to Privacy, the Supreme Court ruling of 2014, and international standards of legal gender
recognition11. This a major point brought up in the outcry by the transgender community of the
country against the Act.

Ambiguously giving power to the Court to separate children from parents: Removing

children from their parents is not allowed if the reason is either of them being transgender, but the
same can be meted out if the force removing them is a court; “No child shall be separated from
parents or immediate family on the ground of being a transgender, except on an order of a
competent court, in the interest of such child.” 12

No mention of structural change needed: The establishments are expected to comply with the
act but not expected to create better and inclusive spaces, and for addressing problems of
otherisation of transgender13.

Shying away from trying to eliminate systemic biases: The government and public servants are
expected to fulfill their duties towards the act but are not liable in case they fail or refuse to do so
or misuse their powers, meted out to them by the state, to harass or discriminate against
transgender persons; “No suit, prosecution or other legal proceeding shall lie against the
appropriate Government or any local authority or any officer of the Government in respect of
anything which is in good faith done or intended to be done in pursuance of the provisions of this
Act and any rules made thereunder.” 14
Lesser punishment for sexual abuse of transgender persons: The maximum punishment given
to the perperators of sexual crime against transgender persons is two years, as compared to that
against cis-gendered persons which is seven years; “harms or injures or endangers the life, safety,
health or well-being, whether mental or physical, of a transgender person or tends to do acts
including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse,
shall be punishable with imprisonment for a term which shall not be less than six months but
which may extend to two years and with fine.” 15

10
Clause 2(k)
11
Clause (4)& ( 7), The Transgender Rights Act 2019
12
Clause 12(1), The Transgender Rights Act 2019
13

14
Clause 21, The Transgender Rights Act 2019
15
Clause 18(d),
Absence of any mention of reservation: The previously promised 2% reservation, as in the
older versions of the bill, is completely absent from this draft.

SUGGESTION

The definition of inclusive education as “a system of education wherein transgender students

learn together

with other students without fear of discrimination, neglect, harassment or intimidation and the
system of teaching and learning is suitably adapted to meet the learning needs of such students” 16
seems discriminatory as it tends to equate having transgender identity to a physical disability.

Many terminologies like discrimination, violence, rehabilitation, abuse, harassment, barrier,

reasonable accomodation, etc, that are used contextually in the bill have not been defined in the
Act.

Denial of inheritance of property should also be included as a discriminatory practice against

trangender persons, as is absent in “the denial or discontinuation of, or unfair treatment with
regard to the right to reside, purchase, rent, or otherwise occupy any property ” 17.

The Transgender Certification issuance should be given a strict timeline to abide by, in order to
reduce systemic challenges for the persons applying for the same. There should also be a single
window system for helping transgender persons with their documentaions related problems to
save them the harasssment and to make the process less time consuming and more focussed.

Suitable reservations should be provided for them in education and employment as they are a
historically disadvantaged community. And taking a leaf out of the booklets of a few states like
Kerala, Odisha, Andhra Pradesh, a suitable monthly pension scheme should also be introduced.

Sex reassignment surgeries should be free of cost in order to ensure fundamental right to self-
perceived identity, according to Article 21 of the Indian constitution 18.

Setting up separate AIDS surveillance centres for transgender persons would only increase stigma
and discrimination against them; “to set up separate human immunodeficiency virus Sero-
surveillance Centres to conduct sero-surveillance for such persons in accordance with the
guidelines issued by the National AIDS Control Organisation in this behalf”- 19

Considering the amount of physical and sexual violence faced by transgender persons, they
should be accorded the same protection as men and women under the Indian Penal Code. And
their perpetrators should be booked under relevant sections of IPC itself and not just simply
meted out a mere 2 year imprisonment in case of heinous sexual crimes as mentioned in Clause
18(d)20.

16
- Clause 2(d),
17
Clause 3(g)-
18

19
Clause 15(a),
20