India presently does not have a law addressing the rights of the transgender community (TG Community). In spite of the trauma and agony faced everyday by transgender persons (TG Person) sometimes on basic necessities such as to receive education, medical care and employment, little has been done over the years to alleviate their struggles.

The Supreme Court considered it fit to interfere and in 2014 (in National Legal Services Authority v. Union of India and Others[1] (Judgment) observed that: –

(i)  TG Community has a right to be treated as ‘third gender’; and

(ii)  The Central & State Governments (Government) should frame welfare schemes, extend reservations, take measures to provide medical care to the TG Community etc.

The Judgment received widespread praise and was hailed by the media. To give effect to this decision and address the previous lacuna, previously different laws were proposed to provide for the betterment of the TG Community,[2] however, none of them came to fruition.

The Government has now again attempted to fill this void by the Transgender Persons (Protection of Rights) Bill, 2019 (Bill). The Bill, though is intended to benefit the TG Community, is being heavily criticized for its fundamental failure to consider existing ground realities.

This Article discusses certain important provisions of the Bill and their shortcomings.

Highlights & Shortcomings

•     Protection from discrimination. There is now a specific prohibition against discrimination of a TG Person. A TG Person cannot be discriminated against in the matters of education, employment, healthcare, right to purchase / reside / occupy property, right to movement, opportunity to stand for public or private office, access to Government or private establishment etc.

While this prohibition seems basic and it can be said that the same is already guaranteed under the Constitution of India,[3] a specific provision will act as a deterrent for any person from discriminating against TG Persons.

Having said so, no penalty has been prescribed for a person who discriminates against a TG Person. The TG Person is also not entitled to any monetary compensation if such person faces discrimination. In the absence of any relief under the Bill, it appears that the protection sought to be given to TG Persons will be, in reality, quite ineffective.

•     Recognition of identity. A TG Person can make an application to receive a certificate of identity (Certificate). This Certificate can later be modified as well – if the TG Person changes gender as a male or female.

This process of applying for a Certificate[4] and following of a certain procedure could be said to be contrary to the spirit of the Judgment – which identifies privacy, self-identity and personal integrity as fundamental rights of TG Persons. The Judgment specifically states that self-determination of gender is an integral part of personal autonomy and falls within the realm of personal liberty guaranteed under the Constitution of India. The Bill does state that a TG Person will have a right to self-perceived gender identity. It is, however, unclear as to what this right entails.

The Bill falls short in certain other aspects also while providing the TG Persons a right of recognition of identity. As certain examples, the Bill does not address the following aspects: –

•     What procedure is to be followed / checks (medical or otherwise) need to be undertaken before issuance of a Certificate?

•     Is there any requirement to provide reasons while refusing a Certificate?

•     Can a TG Person appeal if the Certificate is refused?

•     What is the procedure to rectify defects in a Certificate?

•      Residential right. TG Persons have the right to reside in the household with their parents / immediate family members and to use household facilities without discrimination. However, Courts can place TG Persons in ‘rehabilitation centers’ if: –

•     family persons are unable to take care of the TG Person; or

•     it is in the interest of a transgender child.

The TG Community views the above provisions as particularly regressive[5] considering the socio-cultural milieu in Indian society. It is commonly known that TG Persons face multiple challenges with their biological families – such as the pressure to conform to the sex they were born with, being outcasted and even violence. This provision does not address these issues but merely requires the Courts to send them to rehabilitation centers. One is compelled to think if segregation and relocation to rehabilitation centers is really the answer to this issue.

•     Medical care. The Government is required to take steps for providing health care facilities to TG Persons. Such steps include – providing medical care facility, facilitating access in hospitals, providing hormonal therapy counseling etc.

However, the Bill does not indicate any timeline for taking such measures. The Judgment was passed in early 2014 and India still does not have a law providing for the welfare of the TG Community. The TG Community alleges that the Bill only superficially touches upon the concept of affirmative actions and provides no real mechanism to improve the lives of TG Persons.[6] So unless there is a definite plan with concrete steps to implement such measures, this may as well only be on paper i.e. a theoretical right.

•     Reservation. The Judgment required the Government to treat the TG Community as socially & educationally backward classes and extend them reservations in admission in educational institutions & for public appointments. The Bill is silent on this issue considering the already existing challenges posed by ever-expanding list of sections of society which are demanding, and also getting, reservation quotas.  Given the sensitivity and perennial controversy around reservations in India, it is unlikely that the TG Community will be considered in that category any time soon.

•     Applicability to private entities. Private entities (such as companies, body corporates, firms, associations of individuals, cooperative societies etc.) are specifically required to – not discriminate against TG Persons, provide them certain prescribed facilities, and designate a compliance officer to deal with complaints in relation to violation of the Bill when it becomes law.

However, again, there are no penal consequences in the event such private entities do not comply with these provisions.

•     Penalties. Forcing TG Persons to indulge in bonded labour, denying them the right of passage, forcing them to leave household / village, harming them or physical / sexual abuse etc. are some of the specifically recognized offences against TG Persons. These offences are punishable with imprisonment between 6 months & 2 years and fine.

This punishment has raised eyebrows in the TG Community, more particularly, a 2-year imprisonment for sexual abuse against a TG Person – when a higher punishment is prescribed for the same offence against male or female.

•     Confidentiality. Confidentiality remains conspicuous by its absence. There is no requirement on any person receiving information for any reason (such as an application for issuance of Certificate, the procedure followed on receipt of an application etc.) not to further disclose such information. However, this aspect may be addressed by India’s proposed data protection regime (namely the Personal Data Protection Bill, 2018) which classifies transgender & intersex status as ‘sensitive personal data’.

•     Other issues. The Bill presently does not address issues pertaining to marriage (either before issuance of Certificate or in case of change in gender after issuance of the Certificate), inheritance, parenthood and adoption. Given that these are basic human rights and that the Judgment recognizes the fundamental rights of TG Community, abstaining from addressing these issues seems to be a glaring gap with respect to the rights and welfare of the TG Community.

Conclusion

The Bill has left more questions unanswered than the concerns it aims to addresses. It appears to be a check in the box, which, in its present form, may not be of much help to the TG Community. The timing of the passage of the Bill in the Lok Sabha has also been questioned. The Bill was passed, almost without debate, on the same date when the proposal to abrogate Jammu and Kashmir of its special status was introduced in the Rajya Sabha. In some circles, this date is being referred to as the ‘Gender Justice Murder Day’ by the TG Community. It has also been alleged that the Bill was not made available to relevant communities until the date it was tabled in the Lok Sabha. In light of these concerns and certain critical shortcomings identified above, the Bill in its present form requires reconsideration.

Author:
Aman Gera, Senior Associate

Footnotes:

[1]               AIR 2014 SC 1863
[2]               The Rights of Transgender Persons Bill, 2014, and the Transgender Persons (Protection of Rights) Bill, 2018. Two other private member bills were also introduced in the Lok Sabha in 2015. These however also lapsed.
[3]               Article 14 of the Constitution provides that the State will not deny any person equality before law. The terminology used here is ‘any person’ and not ‘male’ or ‘female’.
[4]               India is not the first country to prescribe a process to apply for gender recognition. The Gender Recognition Act, 2004 (applicable in the UK) also talks about making an application – which is to be decided by a Gender Recognition Panel.
[5]               https://www.indiaspend.com/why-new-bill-meant-to-benefit-transgender-people-is-termed-regressive/
[6]               https://www.youthkiawaaz.com/2019/07/why-the-trans-rights-bill-is-unacceptable-to-the-lgbt-community/