The journey of transgender rights in India finds its origin in the landmark judgement of National Legal Services Authority v. Union of India. Whilst recognizing transgender persons’ right to self-perceived gender identity, the Supreme Court held that the right to self-identification forms an integral part of the right to live with dignity under Article 21 of the Indian Constitution and a fundamental right of self-expression under Article 19(1)(a). Thereby, the court directed central and state governments to provide legal recognition to the same and proactively address the issue of discrimination faced by the community. In pursuance of the same, new rules have been enacted.
Hereby discussing the definition of transgender, issues faced by them and critical analysis of the new Rules.
As per international standards, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth. For example, a person born as a man may identify with the opposite gender, i.e., as a woman. In addition to this sense of mismatch, the definition provided under the new rules also lists further criteria to be defined as a transgender person. These additional criteria include being (i) ‘neither wholly male nor female’, or (ii) ‘a combination of male or female’, or (iii) ‘neither male nor female’.
The Supreme Court, the Expert Committee of the Ministry of Social Justice and Welfare, and the recent Standing Committee report all define ‘transgender persons’ based on the mismatch only.
The Supreme Court of India gave a judgement in the case of NALSA Vs UOI and recognised the rights of transgender people in India and laid a series of measures against discrimination, recommended creation of welfare policies, reservation in educational institutes and jobs etc. The Judgement upheld the rights of a transgender person to their self-perceived identity and held that these are guaranteed by the Constitution of India. The judgement also made reference to hijra, kinnars, and jogtas of the trans community.
The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, penectomy and problems related to marriage and adoption.
Constitutional rights related to Transgender
The Transgender Persons (Protection of Rights) Act, 2019 states that a person who is recognised as ‘transgender’ shall have the right to ‘self- perceive’ their gender identity. Once a person identifies as transgender, they may apply for a Certificate of Identity issued by a District Magistrate. Such a certificate will be proof of their identity as ‘transgender’ and confer rights and benefits under the Act.
The new Rules specify the manner, form and process by which persons may apply for a certificate, and in which the certificate will be issued. The new Rules state that to apply for a Certificate, applicants must provide (i) an application form, (ii) an affidavit declaring themselves to be transgender, and (iii) report from a psychologist of a government hospital. Based on these documents, the District Magistrate may certify the applicant as transgender.
Purpose of psychologist’s report is unclear and does it include any qualification criteria for the psychologist.
Note that the Standing Committee on Social Justice and Empowerment (2016) that examined the Bill when introduced in Parliament observed that the presence of medical professionals in the panel for determining the certification of a person as transgender increases the risk that the applicant’s gender identity will be assessed on a medical, biological, or psychological basis. According to the Committee, this would violate the right of transgender persons to self-identify their gender, as held by the Supreme Court in National Legal Services Authority vs. Union of India (2014).
The Rules state that a District Magistrate may only issue a Certificate of Identity to an applicant who has been a resident of the area under his jurisdiction for a period of one year as on the date of the application. It may be argued that this provision increases the burden on transgender persons to apply for a Certificate of Identity.
The Expert Committee on Issues Related to Transgender Persons (2014) observed that the transgender community faces ostracisation from family, unemployment and homelessness. Therefore, it may be difficult for transgender persons to prove residence for a continued period of at least one year before submitting an application.
Various other licences and certificates do not have a one-year residency requirement. The notice for a civil marriage requires at least one of the parties to the marriage to have resided in the area for at least 30 days. Also, there is no minimum time period for which a person must reside in the area when applying to a Road Transport Organisation for issuance of a driving licence.
The application form for a Certificate of Identity requires the applicant to submit information such as education qualification, name of school or college, whom they live with, and sources of income. It is unclear why such information is required for the certification of a person as transgender.
Further, the application form requires that information provided by applicants will be kept confidential and may only be shared with central or state security agencies. It does not state the purpose for which the information will be shared. It also does not identify the security agencies with whom such information can be shared.
The Rules require an applicant to submit an affidavit declaring their identity as a transgender person, along with their application. However, it also specify a penalty against persons who make an application for Certificate of Identity with an intention to falsely obtain the status of a transgender person. Since persons have the right to self-perceive their gender identity, it is unclear on what basis authorities may determine whether a person is filing a false application. Note that the Act does not specify a penalty for making a false application for a Certificate of Identity.
The Act states that welfare measures to protect the rights and interests of transgender persons and facilitate their access to welfare schemes may be prescribed in the Rules. The Rules state that the appropriate government must: (i) review existing welfare schemes to include transgender persons, (ii) ensure welfare schemes, programmes and subordinate legislation are non-discriminatory towards transgender persons, (iii) take adequate steps to prohibit discrimination towards transgender persons, and (iv) educate transgender persons on benefits available to them. These details have currently not been specified.
There is still no mention of providing reservations to these communities in the education and employment sectors. The 2011 data revealed that the literacy rate among the community is only 46% and the employment rate is worse than the prior i.e. 38% Apart from such harsh socio-economic conditions, they are fighting for their identity and privacy as well.
The Rules also state that the appropriate government must provide separate washrooms in establishments within two years from the notification of the rules. As per the Act, an “establishment” includes central and state government funded or controlled bodies, and any other company, body corporate, association or body of individuals, firm, society, trust, agency, or institution. Given that the definition of establishment is broad, it may be argued that it is not feasible for the appropriate government to provide separate washrooms for transgender persons in all private and public establishments.
The Act provides for transgender persons that undergo sex-reassignment surgeries to apply for a revised Certificate of Identity and identify as male or female. The Rules specify the manner in which a person who has undergone surgery can apply for a revised Certificate. This includes providing a medical certificate and application form. However, the application form provided in the Rules for a revised Certificate only allows the applicant to select ‘transgender’ as their gender of choice and not ‘male’ or ‘female’. This seems to be a drafting error as the revised identity card issued on the basis of such application declares the person’s gender as ‘male’ or ‘female’.
Status of transgender persons under existing laws
Currently, several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 (NREGA) and Hindu Succession Act, 1956. Now, the rules seeks to recognise a third gender i.e. ‘transgender’. However, the Bill does not clarify how transgender persons will be treated under certain existing laws.
For example, under NREGA, priority is given to women workers (at least one-third of the beneficiaries are to be women) if they have registered and requested for work under the Act. Similarly, under the Hindu Adoptions and Maintenance Act, 1956, there are different eligibility criteria for males and females to adopt a girl child. In this context, the applicability of such laws to a ‘transgender’ person is not stated. The Standing Committee has recommended recognising transgender persons’ right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation.
In addition, the penalties for similar offences may also vary because of the application of different laws based on gender identity. For example, under the IPC, sexual offences related to women attract a maximum penalty of life imprisonment, which is higher than that specified for sexual abuse against a transgender person under the Bill (up to two years).
Verifying, please be patient.