Pragya Upadhyay and Aayushi Jha, both 1st year students of Chanakya National Law University, Patna analyzes various attributes of The Transgender Persons Act, 2019 which was signed into law by the President of India on December 5, 2019.
The Vedas explicitly describe every person belonging to one of the three separate categories, classified as pul-ling (male), stri-ling (female) and napunsak-ling (third gender) according to one’s respective nature. The third gender or ‘Transgender’, is defined in the dictionary as a person whose gender expression differs or does not correspond with the sex assigned by birth. In some areas, they are also known as ‘Aruvani’ and ‘Jogappa’.
It is an undisputedly fact that India is a democratic sovereign nation; which essentially means that the government is by the people, for the people and of the people.
This necessarily entails that the government is supposed to protect people and work for the upliftment of the downtrodden by enacting different rules and regulations in the form of laws that are unbiased and impartial. This treatment by the government becomes even more crucial where a country like India is concerned; a country that is drenched in deep-seated prejudice, superstitious notions and highly flawed moral grounds. Not to discourage or overlook the progressiveness that can be seen in recent times, mobilized by landmark decisions of the judiciary and the rock-solid voice of the masses; the silver lining can be attributed to the rapid and astonishing development in the mindset of the country’s youth, but some facets still leave a lot to be desired.
The society we live in is largely gender-specific owing to which, and that includes ignorance and the stigma surrounding the community, the society does not want to acknowledge the plight of the transgender community. If at all their presence is acknowledged, they are mostly portrayed in a negative light; contrary to the time when they enjoyed power and prestige in the Mughal era where they were the middle rung of power.
The community has had to face extreme prejudice and marginalization, and it still reflects in the condescending attitude, not only of the common people but also of the laws that govern them. In a gender-specific India, where discrimination and other transgressions against transgender people are fundamentally rooted, appropriate legislation is required to uphold equal access to the law.
The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India, to provide for the protection of rights of transgender persons, their welfare, and other related matters. Nevertheless, the 2018 bill, which was preceded by a 2016 version, was met with protests and criticism by trans groups, lawyers, and activists in India. The 2016 bill received significant backlash following which the Lok Sabha drafted an amended version of the Bill and passed it in December 2018. However, it failed to accommodate many of the committee’s recommendations. Members of the opposition in Rajya Sabha, despite criticizing the Bill and assuring transgender people of not voting in favour of it, passed it on Nov. 25 2019. On Dec. 05, 2019, it was signed into law by the President of India.
This Act aims at protecting the rights of the transgender persons. It prohibits the discrimination against a transgender person, including denial of service or unfair treatment about education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent, or otherwise occupy the property, opportunity to hold public or private office and access to a government or private establishment in whose care or custody a transgender person is.
The plight of the transgender is not unknown but more often than not, goes unnoticed. The Act, even though fairly incomprehensive and inadequate on various fronts, is a positive step forward to a more gender-inclusive society; however, the fact remains that the negatives of the Act greatly outweigh the positives.
Human sexuality and its identification have such a wide spectrum that restricting it to one word in this case “transgender” is a gross incidence of ignorance towards a significant and relevant section of the society.
The activists put forth the contention that ‘Transgender’ was restrictive, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. The fact that all persons with intersex variations and queers to have been pigeonholed as a transgender further underscores how the definition has been oversimplified and not properly thought through.
Further problems arise from the numerous erroneous propositions that plague a law that is supposed to be progressive. A few of these errors were rectified before the Bill was passed and designated as an act of parliament. Still, the problems left untouched put a dark shadow over the intentions to create an atmosphere that is inclusive and accepting of a section of society that has been subjected to all kinds of mockery, ostracisation and abuse.
While the Act is progressive in that it allows self-perception of identity, it mandates a certificate from a district magistrate declaring the holder to be transgender. This goes against the principle of the self-determination itself; also, there is no room for redress in case an appeal for such a certificate is rejected. One long-pending demand has been to declare forced and unnecessary sex reassignment surgery illegal and to enforce punitive action for violations.
The identity certificate will only identify people as transgender and not as male or female unless the person has undergone a sex reassignment surgery and can provide proof thereof. A revised certificate may be obtained only if the person undergoes surgery to change their gender either as a male or a female.
It infringes upon the right of the transgender people to decide their gender identity, which was recognized in the landmark judgment NALSA v. UOI and that is problematic. This Bill gives discretionary powers to the District Magistrate to decide upon a transgender’s gender identity. Furthermore, even though the Bill impliedly mandates sex reassignment surgery to be identified as a male or female, the Bill does not specify if any fee relaxation would be given considering the fact that most of them live on low income that translates to living in poverty.
The Act does not provide for employment opportunities through reservations, disregarding the directions of the apex court in the NALSA judgment. While we see snippets of transgender people rising to respective ranks in society, they are far and few in between and lack the support that a similarly abled cis individual gets.
In hindsight, to do away with the criminalization of beggary was a welcome move from the government even though it remains a sad fact that the people of the marginalized committee had to fight for this limited chance of livelihood that the society provides them.
Perhaps, the most astonishing provision of this act is that it treats rape/sexual assault of transgender persons as different from the cis-gendered individuals and gives a punishment of a maximum of 2 years as compared to 7 years in the case of the latter. This showcases the blatant disregard that the government has for this community resulting in making them feel less of a person; grossly violating their fundamental rights.
It is important to understand that to bring about an active upliftment of the transgender community, it is pertinent to give them sovereignty over their own bodies and how they embody gender identity. This is important to not put any unnecessary financial strain and not make them vulnerable to discrimination by the authorities.
The community remains highly disappointed that the Bill has become an Act without any efforts to make valid or relevant changes to its original composition; it is also highly worried and suspicious of the implementation of the act and its consequences. The activists hope that the National Council for Transgender Persons will allow for a more favourable implementation of the law and thus provide more elbow room for genuine representations of the community that the law has failed to accommodate; resurrecting a progressive and encouraging regulation that has the potential to play a pivotal role in the strength of an inclusive nation.
Pragya Upadhyay and Aayushi Jha are first year law students of Chanakya National Law University,Patna.
Kashish Singh, Transgender People In Vedic Times, Medium (Apr.05, 2020, 10:00 AM) https://medium.com/@kashishsingh2002/transgender-people-in-vedic-times-59aba4334ed9.
Adrija Rowchowdhury, When Eunuchs were the mid rung of power in the Mughal Empire, The Indian Express (Apr. 05, 2020, 10:30 AM) https://www.google.com/amp/s/indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/lite.
Transgender Persons (Protection of Rights) Act, 2019 Bill No. 169 of 2019.
National Legal Services Authority v. Union of India WP (Civil) No. 400 of .
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.