• EB - Human Rights Society

Revisiting Trans “Protection” Laws in India: One Step Forward, Three Steps Back?


Abstract: As Pride Month, 2021, rolls around, the situation of the transgender community in India remains as desperate as ever. With this community being one of the worst affected groups of people by the COVID-19 pandemic, we revisit the limited existing legal frameworks in India that are designated to protect the rights of transgender persons. Starting with the Transgender (Protection of Rights) Act, 2019, to the Transgender Protection of Rights Rules, 2020, and ultimately the establishment of the National Transgender Council, the authors trace the short journey of trans-related legislation and efforts in India since the principal legislation passing in 2019. It is observed that the existing safeguards fall notoriously short of their burden, and are mostly tokenistic in nature. The transgender community is still deeply dissatisfied and feels they aren’t being given adequate representation. Additional sweeping reforms are thus mandatory for the Indian state to conform to the landmark NALSA judgment of 2014.


Keywords: The Transgender (Protection of Rights) Act, 2019, The Transgender Protection of Rights Rules, 2020, The National Transgender Council, NALSA judgment, Pride Month.



Introduction


The apparent legislative culmination of the decades’ long struggle of the transgender community in India was the Transgender (Protection of Rights) Act, 2019 (“TPRA”). While its very inception, drafting, and adoption were marred in controversy – in the year and a half since its formal induction into the Indian legislative framework, the Act has continued to draw fire from the transgender community and its allies across India. The lacunae with this principal legislation become exponentially starker with the intervening (and ongoing) pandemic wherein the transgender community was uniquely positioned for marginalization and destitution. Restricted access to medical health facilities, continuing forms of societal exclusion, and abrupt disruption of their only sources of income are but some reasons that have led to the pandemic and quarantining disproportionately affecting the trans-community. A recent study confirmed that even though trans persons are at increased risk during the pandemic, their issues are still mostly unheard of and they are relegated to backward parts of society. In this article, we revisit the TPRA while also commenting on the developments that have been observed since 2019, ending with a brief analysis of the future of trans-rights in India.


On the TPRA


The TPRA which has been developing since its inception in 2016 saw the removal of some of its most offensive provisions such as medical screening in the process of issuance of the certificate of identity, in the final version of 2019. However, the Act is a ways off from first, understanding, and second, realizing the needs and rights of the transgender community in the Indian subcontinent. To begin with, the NALSA judgment upheld and recognized the Yogyakarta Principles which affirm binding international legal standards, to be applied as national law. The Yogyakarta principles cast an obligation upon states to perform due diligence to prevent and provide a penalty for discrimination against trans people. The court further noted that discrimination on the ground of sex also encompasses discrimination on the ground of gender identity under Articles 15 and 16 of the Constitution of India. The judgment recognized the systematic denial of rights of Transgender people in violation of Article 15(2) while upholding the need and casting obligation upon the state to make special provisions such as taking affirmative actions for the upliftment of the community under Article 15(4) of the Constitution. The TPRA, under Section 3 prohibits the discrimination that is faced by the community on several fronts; however, it fails to provide any penalty or remedy in that regard. This, in turn, leads to the frustration of this very section, as there are no real consequences meted out in the Act for violating the same. In a report submitted to NHRC by Kerala Development Society in 2017, it was recorded that 28-30 percent of trasngenders face harassment and discrimination at the school level itself. However, the perpetrators don’t face any consequence of the same due to the lack of stringent statutory provisions. The stellar NALSA judgment had given direction to the State to take affirmative measures so as to increase the presence of the decidedly disadvantaged community in various spheres such as education or employment. However, the Act in this very instance fails to implement the same.

Moreover, the definition of transgender under Section 2(k) of the Act also includes individuals with intersex variations. Intersex people cannot be put on the same footing as trans people as there is an inherent difference between the two, which the Act fails to address. It is also not necessary that all Intersex individuals identify as transgender. Moreover, many Intersex individuals go through forced sex reassignment surgeries (to help them conform to a particular sex assignment) at an early age, rendering such surgeries irreversible. In any event, if such individuals choose to identify as transgender, the Act fails to provide any recourse. Although different, both the groups are perpetually faced with the loss of authority over their bodies as the Act in question continues to promote gender dysphoria by reinforcing a binary model of gender. Gender dysphoria results in stigmatization of these individuals by questioning them, rather than the society. The Act attempts to be inclusive of intersex individuals however fails to encounter several concerns such as forced sex assignment surgeries performed on intersex infants and children and rather ends up diluting the rights of intersex individuals who do not identify as transgender by putting them under the same classification as Transgender people.

Adding insult to injury, even though the Act under Section 4(2) stipulates that a person recognized as trans shall have the right to self-perceived gender identity, the same is not reflected anywhere else in the entire Act, especially with regards to the certification process. The NALSA judgment had expounded that the self-perceived gender of a person lies at the core of the fundamental right to dignity enshrined under Article 21 of the constitution. In contrast to the landmark judgment, the Act under Section 6, puts the identification process under the state’s scrutiny which results in the eclipsing of the very notion of self-identification and encroaches upon the community’s right to dignity by subjecting them to such scrutiny.

The act also overlooks the gravity of offences that are committed against Transgender people by meting out punishments that are not stringent enough or remaining silent on the punishment front altogether. A transgender female who is subjected to sexual abuse or rape is not placed on an equal footing as a cis-gender woman under the Indian Penal Code. Under Section 18(d), sexual abuse against trans-persons is punishable for a measly six months to two years - while for cis-gender women, under Section 376 of the IPC, the same punishment is ten years to life imprisonment. In summary, the Act is marked by inadequate penal provisions for discrimination and sexual offences and discards the welfare State’s responsibilities to treat the inalienable rights of trans-persons as charity. The act in its entirety attempts to restrict and control the rights of trans-people rather than uplift and protect them. One such instance is when the act under Section 12(3), impels the trans-individuals to live in a rehabilitation centre if the immediate family is unable to take care of such individuals. This again, is a controlling provision that denies the trans-people their right to live by choice in an alternate setting, preferably within trans-community arrangements. This provision reaffirms the very patriarchal and hetero-normative structure of families that exist in the Indian Society by taking away and interfering with the individuals’ decisional autonomy. The same was expounded in the case of Justice K.S.Puttaswamy (Retd) v. Union of India, where the bench recognized sexual autonomy as an inherent choice protected under the guises of the right to privacy. The NALSA Judgment had recognized that the third gender must also be given legal recognition under civil laws, more particularly, the right to marriage, adoption, and inheritance. The Act, however, sidelines and fails to address many of these issues. The red tape that is being used to bureaucratize the transgender body speaks to the utter disconnect between the drafting body of the TPRA and the actual lived experience of the community.


Transgender (Protection of Rights) Rules, 2020


While the TPRA itself passed with inadequate debate and limited national coverage due to the larger issue of the abrogation of Article 370 unfolding at the same time, a similar pattern is being observed with the Rules, 2020 (“Rules”) which commentators are now calling a half-hearted attempt at fixing the many mistakes of the TPRA. These Rules have been rushed through during the pandemic, and the mandatory lockdown, allowing little to no room for trans-community feedback or improvement. The hypocrisy of the Centre is writ large in the contradictory views it espoused while dealing with two separate queer community matters. It first rushed the Rules through the Parliament without any substantial advisories or expert opinions taken into consideration, all during a pandemic, leaving the transgender community largely unable to contribute to the ‘democratic’ process of the formulation of the Rules, and subsequently argued against a fair hearing to same-sex marriages in a batch of petitions as “no one is dying due to lack of marriage registration.” While the same statement is demonstrably fallacious (as same-sex couples have faced unprecedented exploitation and discrimination even during the ongoing pandemic), one can only wonder why the Centre did not follow their own reasoning in notifying the Rules in such a haphazard manner with a nationwide lockdown in full swing.

Coming to the sum and substance of the Rules themselves, they seem to chiefly change the certificate granting process which gives state sanction to their transgender identity. The Rules take the application process online via Rule 3 sub-rule (2), and also broaden the definition of “medical intervention” that is to be submitted as proof of identity. This definition, under Section 2(i) of the Rules, aims to be more inclusive rather than exhaustive by allowing for other modes of proof for gender identity such as “hormonal therapy, counselling, etc.” While a welcome move, it is still unclear why the term “medical” is at all part of the Rules as there may be other avenues or simply a process of internal reflection that grants validity to the transgendering process. Alternatively, many transgender people may not want to receive surgeries, hormonal therapy, or counselling to prove their gender at all - or worse, they may be unable to, due to prevailing socio-economic conditions.

The omission of the definition of discrimination (which was present in an earlier draft of the Rules) has also caused a lot of backlash as the delegation of the responsibility of determining what constitutes discrimination against transgender people may not only cause confusion and chaos but also allow political opinions to enter the fray.

Another huge drawback of the Rules remains its deafening silence on the affirmative action that should be extended to the transgender community - which the NALSA judgment recognised as a socially and economically backward class - entitled to reservations in educational institutions and public employment. The real-world ramifications for this ignorance become painfully clear when one considers the horrendous conditions trans-persons continue to survive under all over India, unable to achieve basic daily sustenance.

Thus, the inclusion of separate-vertical reservations, different support systems, gender sensitization, and awareness programs, and job security schemes are crucially missing from the Rules - in favour of vague and in-actionable broader claims.


The National Council


In August 2020, the Government of India announced the creation of the National Council for Transgender Persons to work towards societal acceptance and improvement in the status of the transgender community. While the establishment of the Council was a long-overdue step by the Centre, concerns around the constitution and election process of the Council have quickly caused a lot of discomfort in the trans-community. Though the Council does allow five members from the transgender community, there is backlash as the absence of grassroots activists is being continually observed. The kind of unique problems and issues this community faces including but are not limited to police brutality, sexual harassment, and economic deprivation require ground-level representation for any efficient dialogue and discourse. Some trans people have gone so far as to posit that unequivocal support for current state politics is a critical determining factor in receiving a position on the Council. Political opinions have no room on a socially driven Council, and hence the inclusion of a more diverse range of persons from the trans-community is crucial for the Council to encourage debate and ultimately result in policies that most positively benefit trans-people.


The Problems with Status Quo


Perhaps the most glaring issue with the way trans-rights have been treated by the preceding legislations is the fact that they make the human rights that belong to trans-people - and those that inhere in the human condition itself - into charity. This way of approaching trans-rights is already acknowledging that these people are lesser than any other person who conforms to the gender assigned to them at birth. “This is an act that trades off protection against discrimination with grievance redressal, and that is why this Act is terribly offensive says Kanmani Ray who is a trans-rights activist. Both the TPRA and the Rules, again and again, fail to provide the penalties that one would attract if they wronged trans-people; the legislation is largely silent on penal measures except in the rare instances wherein the punishments themselves are regressive and discriminatory. The TPRA and the Rules were collectively supposed to provide clarity, not confusion when it came to upholding the fundamental rights of trans-people. By the lack of specificity in the laws and the offloading of any real decision-making to “appropriate government or authorities'' much of the Act remains inconsequential.

One of the chief factors that feeds into these laws being insignificant is the glaring lack of awareness of the same at all levels - the executive, the enforcement branches, and the public. Indeed, the first grievance redressal commission promised in the aforementioned laws was opened as recently as March 2021, while their need has been notified since 2014. Simply not enough attention or national coverage has been given to all pro-trans laws which dilute participation and detracts from a functioning democracy. More crucially, however, knowledge of trans-rights has even failed to reach law-enforcement agents on the ground which speaks to the need for more sensitization and awareness campaigns that educate not only the police but also the people, of trans-rights. The vague commitments under the preceding laws should be broken down into unequivocal deliverables, for which organs of the government and special committees must be given accountability. Policymakers, themselves, need to be sensitized about the matter of legislation, so that they are able to create an infrastructure of recognition for the trans-community within the larger society.


Conclusion


The support that the Indian state has lent its transgender community until now can be summarized with one word: tokenism. This outreach is of little real substance and remains indicative of the fundamental disconnect that continues to exist between transgender people and the Centre. A State which continues to abstain from voting in favour of and thus endorsing LGBTQ rights at the United Nations displays the perfect lack of political will that dooms its queer community to despair and disregard. The alternative presence of the same political will in uplifting queer communities has done wonders in countries like Argentina, Norway, and Canada, to name a few. While the Rules present a mildly more progressive picture than the TPRA, true equality for trans-persons is still a vague, unspecified dream at best. It would be demonstrably false, however, to claim that there has been no substantial progress in the field of trans-rights across India. Karnataka’s reservation in employment for trans people, Kerala’s well-rounded trans policy, and Tamil Nadu’s monetary pandemic relief, are all developments that are laudable. Even so, much more work remains, which should manifest in the form of active affirmative policies, stringent punishment for violations of rights and truly restorative remedies, nationwide sensitisation campaigns, and a non-partisan dialogue with grassroots trans-rights activists. These are just a few of the measures that can ensure the transgender community the very rights it has been systematically denied for far too long now.

Thus piece has been authored by Shrey Goyal and Vridhi Kashyap.


Shrey Goyal and Vridhi Kashyap are both Second-Year law students at NLU, Assam. Shrey is passionate about Constitutional and International law, while Vridhi has a keen interest in Corporate Law along with Human Rights Law.

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