India’s Stand on Transgender Protection
Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020
Table of Contents
- Delusion of the term “Transgender”
- Transgender Persons (Protection of Right) Act, 2019
- Transgender Persons (Protection of Rights) Rules, 2020
- Observation and Suggestions
Gender is one of the important central categories which organizes a person’s social world. The identity of transgender people is distinct from the usual sex of either being a male or female. Unfortunately, this usually puts them in a state where they are made to feel discriminated against and oppressed by society. They are left in a disadvantageous state that makes them live on the margins.
Delusion of the term “Transgender”
The misconception of the term transgender is that it is often thought to be limited to people whose genitals are intermixed. But according to American Psychological Association (APA), transgender is an umbrella term used for persons whose gender identity, gender expression or behaviour does not conform to that typically associated with the sex assigned to them at birth. Thus, the term besides transgender male, transgender female also includes male-to-female and female-to-male people. Further, it also includes transexuals (person having strong desire to assume the physical characteristics and gender role of the opposite sex), cross-dressers (person likes to wear clothes of the opposite sex) and also gender queer people.
As per the National Center for Transgender Equality, gender identity refers to a person’s internal knowledge and sense of being a man or a woman or of another gender. Thus, a transgender person who lives as a woman today and a transgender person who lives as a man today should be treated as a woman and a man irrespective of their sex at birth.
Gender expression refers to the way transgenders present their gender outside through their clothing, hairstyle, behaviour etc.
A study by National Human Rights Association (NHRC) has found that nearly 99% of transgender people have faced social rejections on multiple occasions. Moreover, the percentage of harassment they have faced from their school classmates and teachers is 52% and 15% respectively. This resulted in their dropping out from the school.
The Indian Constitution guarantees equality and thus transgender have a legal right to be treated equally. They have been provided with the right to be recognized as “third gender”. With a view to protect their interest and rights, the government enacted the Transgender Persons (Protection of Rights) Act in the year 2019.
Transgender Persons (Protection of Right) Act, 2019
On July 19, 2019, Mr. Thaawarchand Gehlot, Minister of Social Justice and Empowerment introduced the Transgender Persons (Protection of Rights) Bill, 2019 in the Lok Sabha. The same was passed in the Lok Sabha on August 5, 2019, and in Rajya Sabha on November 26, 2019. The President gave his assent on December 5, 2019.
The Transgender Persons (Protection of Rights) Act, 2019 (hereafter referred to as the 2019 Act), was criticized by the proponents of the transgender community for being a discriminatory form of legislature.
The 2019 Act is the first step in the right direction to the long continuous struggles of the transgender community. The Act provides them protection against any kind of discrimination. It requires the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society. The Act requires the Government to further formulate welfare schemes and programmes which are transgender sensitive, non-stigmatising and non-discriminatory. It further prohibits discrimination against transgenders in employment and work opportunities. Every establishment is required to designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of the Act. The Act states that every transgender has a right to reside in the household where their parent or immediate family members reside. They can use the facilities in such households without any discrimination and have a right not to be excluded from it.
- Ignorance to the recommendation of the Committees
The Supreme Court in the case of National Legal Services Authority v. Union of India (hereafter referred to as NALSA judgement), directed the Ministry of Social Justice and Empowerment to constitute an “Expert Committee on Issues Relating to Transgender” in order to conduct detailed research to understand the needs of transgender people. The 2019 Act neglected various recommendations of the Standing Committee and Expert Committee.
- Non-existence of stringent penalty
No stringent penalty exists for the offences prescribed under the Act.
- Non-exhaustive definition of transgender
Definition provided by the 2019 Act for the Transgenders is not exhaustive.
- Gender identification Power with District Magistrate
The 2019 Act provides District Magistrate (hereafter referred to as DM) the power to recognize a person as a transgender. Thus, the 2019 Act mandates transgender people to apply to the DM for the issuance of the certificate. The DM will do so, “after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender.” The Act is silent about the procedure.
This is against the NALSA judgement which allowed self-identification of gender.
- No mention of carrier guidance and online placement support
Despite suggestions of the Standing and Expert Committee to establish a helpline for career guidance and online placement support, the 2019 Act remains silent on these matters.
Transgender Persons (Protection of Rights) Rules, 2020
Unfortunately, the 2019 Act met with various criticisms from the community. Thus, with a view to operationalize the Act, the Ministry of Social Justice and Empowerment during lockdown notified the Draft of Transgender Persons (Protection of Rights) Rules, 2020 (hereafter referred to as the 2020 Rules). The 2020 Rules were issued in exercise of the powers conferred under Section 22 of the 2019 Act. They were kept open for public suggestions and recommendations and the Rules were made effective from September 25, 2020.
The Rules have addressed the following points: –
i. Certificate of identity
Rule 3 prescribes that or obtaining a Certificate of identity, the transgender person is required to make an applicant to the DM within whose jurisdiction the transgender person resides. However, sub-rule (3) states that the transgender person who has officially, prior to the coming into force of the Act, recorded their change in gender will not be required to submit an application for the certificate of identity under these rules.
ii. Procedure for issue of a certificate of identity for change of gender: –
If a medical intervention towards a gender-affirming procedure is undergone, then the said transgender person must apply in Form-I along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution, to the DM in order to get a revised certificate of identity.
iii. Certificate to be the basis for changes in official document
Rule 5 prescribes that the issued certificate will become the basis for name and gender change and photograph in all the official documents with a period of 15 days from making the application.
iv. Communication of rejection of application
Rule 8 prescribes that in case any application is rejected under Rule 3, the DM is required to provide reasons for the same with a period of 30 days from the date of receipt of such application. Rule 9 provides the applicant has the right to appeal this decision.
- The 2020 Rules provides a definition to the term “medical intervention” which was earlier absent in the 2019 Act.
- According to the procedure laid down by the 2019 Act, a transgender person, in orderto indicate their correct, self-assigned, trans-binary status had to first obtain a “transgender identity certificate” and then a revised certificate. However, the 2020 Rules provide a single form to assert either a transgender or trans binary status. However, the latter requires medical intervention.
- Rules silent about the procedural change
The Rules provide that the issued certificate will become the basis for name and gender change and photograph in all the official documents with a period of 15 days from making the application. However, the Rules are silent on the procedure about how such change is going to take place.
- Lacunas of the 2019 Act not fully addressed
The Rules do not fully address the lacunas of the 2019 Act.
- Rules against the NALSA judgement
The Rules requires a transgender person to obtain an identity certificate from the DM. This is against the judgement of the Supreme Court in the NALSA case where the Court allowed self-determination of gender.
- Arbitrary powers with DM
The 2020 Rules give power to the DM to reject an application. This has been highly criticized by the community for being an arbitrary power conferred in the hands of DM.
- Important issues untouched by the Rules
The 2020 Rules do not touch on important issues such as adoption, property rights, social security or pension.
- Impediments due to Covid pandemic
Due to the covid crisis and movement restrictions many interested people were unable to protest against the Rules. Thus, according to the views of the community, their full voice against the Rules is still unheard.
Observation and Suggestions
The transgender community is facing discrimination for a long. Thus, laws for their protection and welfare should cater to their every need and should be a solution for all their problems. A proper talk with the community to know their concerns would be beneficial. Further, sufficient time must be given to the interested people to submit their feedback. It is to be remembered that changes brought by the law will prove more beneficial for the transgenders only when they feel comfortable in society. This can happen when the people also accept them as a part of the society.
For the upliftment of the transgender community, it is necessary that they are given equal rights and status in society. Workshops and campaigns should be carried to sensitize and aware the common public about the needs of the community.
The 2020 Rules should also provide for the procedure of name and gender change in the official documents as per the issued certificate. Further, the identification process should be made in tune with the Supreme Court’s judgement in the NALSA case.