Article by Barkha Dwivedi
“There's power in naming yourself, in proclaiming to the world that this is who you are. Wielding this power is often a difficult step for many transgender people because it's also a very visible one.” — Janet Mock
On 17.12.18 The Transgender Persons (Protection of Rights) Bill, 2018 (“The bill”) was passed by the Lok Sabha (House of the People) of India. After 2 years of its introduction in Lok Sabha and with 27 amendments, the bill finally saw the light of the day. The bill aims to prohibit the discrimination against a transgender person on the grounds of unfair treatment in the educational establishment, employment, healthcare services and access or enjoyment to accommodation and facilities dedicated to the use of the general public or customarily available to the public.
The highlighting feature of the bill is the definition of the transgender person which means “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender- queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”.
The definition even though has been made less irrational as compared to the bill introduced in 2016 by omitting from the definition “one who is partly female or male; or a combination of female and male; or neither female nor male.”, still remains to be vague as the terms such as ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ has not been defined.
The atrocities faced by the transgender community was articulated by the National Legal Service Authority (NALSA) in a PIL petition, National Legal Services Authority vs Union of India. The submissions made by NALSA stated as to how the transgender persons are deprived of their fundamental rights by not being recognized as a third gender, thereby rendering it almost impossible for them to obtain Passport, driving license, ration card, Identity Card etc. The transgender community is deprived of social and cultural participation, are shunned by family and society, have only restricted access to education, health services and public spaces. Many other rights and privileges that are available to the citizens of India such as right to marry, right to contest elections, right to vote, employment and livelihood opportunities and various other human rights are far-fetched for the transgender community. Another important submission, also highlighted by the Supreme court in its judgment, was the need of the statutory reservation in the domain of employment both in the public and private sectors. Adding to this, NALSA also submitted that it is vital to provide facilities for higher education to empower and uplift the transgender community and to promote their acceptability in society. Apart from the Supreme Court’s ruling, a number of suggestion in regards to the issue of the reservation was made to the Expert Committee of the Ministry of Social Justice and Welfare on the Issues relating to Transgender Persons by various state governments and other participating members. However, the committee did not put forth any recommendation with respect to the same and therefore, the current legislation does not contain any provision with respect to the reservation for the transgender community.
The Supreme Court again in National Legal Services Authority vs Union of India had upheld a transgender persons’ right to self-identify their gender. Recognition of one’s gender identity lies at the heart of the right to dignity and freedom and therefore it must be protected under Article 21 of the Indian Constitution. In addition, the court stated that Privacy, self-identity, autonomy and personal integrity are fundamental rights protected by Article 19. In the wake of the same, the bill also states that a person who is recognized as ‘transgender’ shall have the right to ‘self-perceived’ gender identity in accordance with section 4 of the bill. However, the need to be screened by the District Screening Committee for the purpose of recognition of transgender persons as mention under section 6 of the bill goes against the principle of self-identification. In the presence of such provision, it is unimaginable to observe in true sense the key right of self-identification that the Supreme Court had protected.
Another legal conundrum that the bill raises is that even though the bill recognizes the third gender i.e., transgender, the bill does not specify as to how the provisions of the laws which recognizes only two gender i.e., male and female, such as Indian Penal Code (IPC), 1860, Hindu Succession (Amendment) Act, 2005, Indecent Representation of Women (Prohibition) Act, 1986, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013, Hindu Adoptions and Maintenance Act, 1956, Protection of Women from Domestic Violence Act, 2005 etc., will apply to them.
The text of these laws has not been aligned with the provisions of the bill and the same has the potential of causing the miscarriage of justice to the transgender community. A recent case that manifests this drawback is Anamika v UOI wherein the petition was filed by a transgender student of Delhi university against the Delhi police after the police refused to lodge the complaint under Section 354A IPC i.e., sexual harassment and punishment for sexual harassment. The police were in a state of uncertainty as to whether a cognizable offence, under the provision of Section 354A IPC, in particular, sub clause (i), (ii) and (iv) of sub-section 1 which talks about physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours and making sexually coloured remarks respectively, can be made by a transgender person or not. The uncertainty arose due to the fact that the complainant did not conform to the binary notion of ‘woman’. The petition which was heard by the division bench of Justice Siddharth Mridul and Justice Sangita Dhingra Sehgal was dismissed as the complaint was registered by the Delhi Police later on. The same was declared by Mr. Rahul Mehra, the standing counsel appearing on behalf of the Delhi police, in the court. He further stated, on instructions from the Commissioner of Police, Delhi that, if a cognizable offence, under the provision of Section 354-A IPC, in particular, sub clause (i), (ii) and (iv) is made out on the complaint of a transgender, the same shall be registered, in accordance with law, in terms of the decision of the Hon’ble Supreme Court in the case of “National Legal Services Authority vs Union of India”. The petitioner had also requested for anonymity and therefore litigated under the court assigned name ‘Anamika’.
The immediate need for the amendment in the penal provision such as rape, outraging modesty of a woman, stalking, subjecting to cruelty etc., vis-à-vis the bill was also highlighted by Dr. Shashi Tharoor, Congress Member of Parliament from Thiruvananthapuram, in a series of tweets. Dr. Tharoor while exploring the fault lines in the definition of the transgender persons in the bill, stated that “A person with intersex variation may be satisfied with the gender assigned at time of birth, or can choose to be a transgender, but the Bill wrongly assumes that all persons with intersex variation are transgender persons. I moved an amendment to correct this.”
In the absence of such amendments, it would become a daunting task to observe the aim of the bill as the idea is not only to protect people based on their actual sexual orientation but also on the basis of how they perceive themselves.
About the author
Barkha Dwivedi is a third-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow (India). She takes an active interest in the issues concerning human rights.