The evolution of legal identification and rights of trans community has undergone many ups and downs throughout Indian history. The references to a “third sex” or persons not conforming to male or female gender can be found in the earliest Indian mythology. These myths indicates that trans gender community was recognised as a part of frontline society since time immemorial.
As per historians, in the Mughal period, transgenders, also known as Hijras (or Kinnars)played a crucial role in empire-building and occupied high positions in the regime. A systemic legal persecution of trans genders compounded under the British imperial rule.
British Era
The following legislations introduced by British Indian government actively contributed to systemic discrimination against trans community:
- Criminal Tribes Act, 1871
- Criminal Tribes Act, 1911
- Criminal Tribes Act, 1924
The trans-gender community was accused of sexual deviance and homosexuality and the social lifestyle of trans gender community during British period characterized by begging and wandering was viewed as a threat to public order under these legislations.
In 1952, the government of India replaced the Criminal Tribes Act with the Habitual Offenders Act. The legislative policy of viewing trans genders a legal deviants was revoked. However, trans genders was not afforded legal recognition under law for decades after independence.
Need for legislation
The Justice Verma Committee report on rape laws published on 2012 suggested alteration of criminal laws to take cognizance of crimes against trans gender community. The committee report observes the following in the interest of protective legislation for sexual minorities:
“If human rights of freedom mean anything, India cannot deny the citizens the right to be different. The state must not use oppressive and repressive labelling of despised sexuality. Thus, the right to sexual orientation is a human right guaranteed by the fundamental principles of equality. We must also add that transgender communities are also entitled to an affirmation of gender autonomy. Our cultural prejudices must yield to constitutional principles of equality, empathy and respect.”
An Expert Committee was constituted in the Ministry to make an in-depth study of the problems being faced by the Transgender Community and the report submitted on 27th January, 2014 recommends the following:
- Transgender should be declared as the third gender, and a transgender person should have the option to choose either ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/hormones.
- Certificate that a person is a transgender person should be issued by a State level authority.
iii. Change of gender either as male, female or transgender should be allowed to be carried out on the birth certificate of the person after the age of eighteen years or above. The certificate issued should be acceptable to all authorities for indicating the gender on official documents like driving license, ration card, passport, etc.
iv Crisis Counselling Services could be set on the model of Rape and Crisis Intervention Centres.
- Formation of groups of transgender children for meetings, holding film screening for sensitization of students and staff, setting up of resource centre, augmenting libraries with books and audio-visual materials on transgender issues.
- Existing forums such as the Anganwadi Centres and Self-Help Groups may be oriented on transgender issues.
vii Work place sexual harassment policies should be made transgender inclusive.
viii. Another Section under IPC to cover the cases of sexual assault on transgender persons.
- Slurs based on real or perceived gender identity may be included in Section 153A of the IPC.
In a landmark judgement dated 15.04.2014 delivered by Hon’ble Supreme Court in National Legal Services Authority (NALSA) vs UOI, the Court made directions to the government for legal recognition and protection of trans gender community.
This judgement and report laid the foundation for proposal of legislations for protection of rights of transgenders.
Private Bill of 2014
Tiruchi Siva, a member of the Dravida Munnetra Kazhagam (DMK) party, introduced The Rights of Transgender Persons Bill, 2014, as a private member’s bill in the Rajya Sabha. The bill was passed by the Rajya Sabha in April 2015, but it failed to gain a majority in the Lok Sabha. This bill was untimely lapsed since it was pending till the dissolution of the Lok Sabha. The Bill proposed for creation of National Commission, welfare boards at the Centre and State level for the community, Transgender Rights Courts, two per cent reservation in government jobs, pensions and unemployment allowances for members of the community. The bill also provided for right to self-identification as trans genders.
The Transgender Persons (Protection of Rights) Bill, 2016
The Transgender Persons (Protection of Rights) Bill, 2016 introduced by the government showed a sharp deviation from the concept of self-identification of trans genders suggested by the SC judgement, expert committee report and the Rights of Transgender Persons Bill, 2014. The 2016 bill deviated from the notion of right to self-identification and mandated individuals to submit themselves to a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychiatrist, a social worker, and a member of the transgender community to be recognised as trans-genders.
The final version of the legislation identified transgenders as being “partly female or male; or a combination of female and male; or neither female nor male”. This definition reinforces the notion that sex is a binary and was widely criticized for erasing the separate sexual identity of trans community.
Further, the bill criminalised instigating trans genders into beggary or leaving their jurisdiction. The provision for earmarking jobs for trans gender community was also absent in the bill. The bill faced severe opposition from trans gender rights activists and community. As a result, it was sent to a Department-related Parliamentary Standing Committee on Social Justice and Empowerment (2016-17)
The committee recommended the following revised definition for trans-genders:
“Transgender Person means a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as – kinnars, hijras, aravanis, jotgtas, etc.”
The committee further recommended that the process of obtaining a certificate from the Screening Committee be made as simple as possible, hassle free and applicant friendly. A strict and reasonable timeline must be mentioned for issuance of a certificate of identity. Further, a strict code of guidelines may also be introduced to ensure that the screening process neither becomes an arbitrary affair nor a source of any harassment to transgender persons.
The committee also clarified that although beggary is a criminal act, the transgender community does not enjoy parity with other genders when it comes to alternative modes of employment and the bill shall introduce provisions for generation of the same.
The lack of inclusion of the Standing Committee’s input drew criticism and legislation lapsed as a result of the dissolution of the Lok Sabha.
The Transgender Persons (Protection of Rights) Act of 2019
The Transgender Persons (Protection of Rights) Act of 2019 was a progressive step in the direction of legal recognition and protection of trans gender community. The new act provided a more inclusive definition for trans genders instead of a straight jacket formulae. The definition ‘one whose gender does not match the gender assigned at birth’ is extensive and Transwomen, transmen, people with intersex variants, genderqueers, and people with socio-cultural identities like kinnar and hijra are all included.
As per the 2019 Act, in order to get a certificate of identity, a transgender has to make an application to the District Magistrate. The certificate will be issued by the D.M. without the requirement of any physical or medical examination. This certificate will act as a proof of the person’s identity and will be recorded in official documents.
Further, the act criminalised following offences against Trans-genders:
- Bonded or forced labour
- Denial to use public places
- Removal from their house and/or village
- Sexual, physical, emotional, verbal, or economic abuse
The act further provided measures to facilitate education, healthcare, housing and employment for trans genders.
Criticism
The definition of trans gender person under the act was criticized for excluding intersex persons.
The Standing Committee suggested in its report that the Act be as inclusive of intersex people as it is of transgender people. They suggested changing the Act’s name to something more inclusive, such as Transgender and Intersex Persons (Protection of Rights). However, this suggestion was not included in the Bill.
The Act has also mandated transgender individuals to acquire a proof of identity from the District Magistrate. This goes against the self-identification principle. Furthermore, there is no provision in the Act for recourse if the D.M. refuses to provide the certificate.
Judicial history
In a landmark judgement dated 15.04.2014 delivered by Hon’ble Supreme Court in National Legal Services Authority (NALSA) vs UOI, the Court made directions to the government for following purposes:
(i) Hijras, Eunuchs, apart from binary gender, be treated as “third gender”
(ii) Centre and State Governments are directed to grant legal recognition to Transgender persons’ right to decide their self-identified gender
(iii) Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation.
In the case of Arun Kumar vs. IG of Registration, Chennai, and Ors., The Madras High Court ruled that under the Hindu Marriage Act, 1955, a marriage between a transwoman and a male who are both Hindus is legal. Furthermore, the marriage must be registered with the Registrar of Marriages.
In the case of Justice K.S. Puttaswamy Vs. Union Of India, the right to privacy was recognized as a component of right to life and a fundamental right. It was further observed that right to privacy includes bodily autonomy, sexual autonomy and self-identification.
Supreme Court affirmed in the case of Navtej Singh Johar v. Union of India, that, a transgender must not be denied the very fundamental human rights. The right to life and liberty, the right to empowerment and education, and the right to violation and exploitation are among these rights. Although the Constitution guarantees these rights, it fails to recognise them in a way that allows transgender people to live a dignified life.
In a ground breaking judgment on the rights of the LGBTQIA+ community, the Madras High Court on 07.06.2021 prohibited conversion therapy. Justice Anand Venkatesh through the judgement of the case V Sushma vs Commissioner of Police directed the Union government to ban any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ persons to heterosexual, or the gender identity of transgender people to cisgender. The High Court directed authorities to take action against people or professionals who claim to be involved in any form or method of conversion therapy, including cancelling their license to practice.
International Norms
India has signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Every human being has an inherent right to life, which must be protected by law, according to Article 6 of the UDHR and Article 16 of the ICCPR, 1966.
The international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006 produced the Yogyakarta Principles that speaks extensively about rights of trans gender community. The Yogyakarta Principles expect States to “take all necessary legislative, administrative and other measures to fully respect and legally recognize each person’s self-defined gender identity.
Author’s opinion
The right to self-identification of trans gender community is the most controversial topic in the centre of the trans gender rights debate. Self-identification of gender is a key element of right to bodily autonomy, sexual autonomy and self-determination. These rights are key elements of fundamental right to privacy and it will be unconstitutional for any law to violate the same.
However, without certification the misuse of trans gender identity and special protection and benefits provided to them cannot be checked. In the authors opinion, a balance can be struck if right to self-identification is upheld for purposes of recognition of gender in basic records required for availing general rights but certification is demanded to avail special protection and rights.
Further, the rights and dignity of trans genders can be ensured if crimes against them are classified into two categories:
- Crimes against trans gender persons
- Victimless crimes against the community as a whole (Making statements defamatory to the trans gender community in public)
The legal protection of trans rights can be more effective if speed track courts are established and special prosecutors are appointed to prosecute offences against sexual and gender minorities.
Authors:
Alby Stephan. K, Legal Executive at Legality Simplified