By Tanmay Durani
Legal Intern, H.K. Law Offices
BACKGROUND
In theory, persons become equal citizens only ‘as long as they perform certain prescribed codes of respectable citizenship which are for their own good.’[1] Cases including acknowledgment of, or security for sex assorted characters epitomize the manners in which disputants should limit their lived experiences to become citizens. Gender is an administrative and monitored social standard endorsing conduct dependent on a culturally built dyad of genders: female and male. But, Judith Butler; one of the queer theorists addresses that gender is neither a fundamental, biologically established characteristic nor an inherent identity; rather, it is a repetitive act based on and reinforced by the norms of societal standards. It can be said that this recurrent performance of gender itself is performative, since it generates both the concept of sexual orientation and the supposition of two fundamental, natural genders. However, at times, Indian law has relied on the sex/gender dichotomy and the indisputability of binary biological sex to resolve issues involving transgender individuals; a consequence of indistinct nature of the word ‘sex’ in Article 15 of the Indian Constitution. Article 15 prohibits discrimination on the grounds of sex but does not define it; as such, sex is not strictly limited to the inflexible categories of male and female. However, this Silence has not always equated to a positive and encouraging acknowledgement of non-binary gender identities, leave alone the acknowledgement of multiple gender practices and gender transitions or that gender identities may shift or change during ones lifetimes.[2] Nevertheless, within due course of time; it was on 15th September 2014 that the SC, under the NALSA v. Union of India ruling, held that “sex” discrimination is not just limited to biological sex but also the “innate perception of one’s gender”.
Outside the Binary: Advancing Intersex Persons’ Legal Visibility in India
For many years, there was an urgent need to raise awareness among various communities and establishments about how critical it is to actively recognise the rights of transgender people and treat them with basic human dignity and on an equalfooting with other genders. In conformity with the belief, the Honorable Supreme Court of India acknowledged that Indian legal matrix is substantially binary in nature, recognising only male and female genders. In its order in the case of National Legal Services Authority v. Union of India[3], it created a legal basis that recognizes transgender persons as a ‘third gender’ and makes a number of provisions for preventing harassment and discrimination against them. The Yogyakarta Principles and Malta’s law that the court emphasized on are worth highlighting. Being a trans-person or a gender non-conforming (hereafter GNC) adult is never an oddity, but rather a reality that should be embraced with an open mind, as the Indian Constitution is founded on an anti-totalitarian premise. The hailed judgment begins thus:
“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.”[4]
The judgement that received widespread media attention and activist support, included orders for the legal recognition of transgender persons and providing reservations for them in the workplace and in education. This event, in particular, demonstrated transgender activism’s growing exposure and influence in India.
Before this, in the event that somebody went after a position, only the woman or man would come instead of the candidate’s sex. Presently at third choice is additionally found at the spot of Applicant’s sex, where “Other” is composed. This has been embedded in pursuit of recapturing the interest of Transgender and accommodating transgender applicants.This results in fair treatment to transgender at working place, restoring their dignity.
In accordance with the esteemed fundamentals of liberty, equality, and freedom of expression, the judgment had to be supplemented with any administrative structure that could put into operation the prerogatives propounded by the court. With the aim of achieving this objective, Transgender Persons (Protection of Rights) Act, 2019 was framed to provide a statutory backing to constitutional rights of Transgender people.
Transgender Persons (Protection of Rights) Act, 2019: Problematic or Effective?
The President’s Assent to the Transgender Persons (Protection of Rights) Act became law on December 5, 2019. The past three drafts of this Act, presented in 2014, 2016, and 2018 slipped by in the parliament and were censured for their illiberal and arbitrary arrangements, for example, setting up a “screening board” to find out if a candidate qualified as transgender.
Regardless of the loopholes that this act encompasses, India managed to bring itself into compliance with international human rights norms by the passage of this legislation, as intended by the United Nations Office of the High Commissioner for Human Rights in 2015.[5] It codified a certain set of rules including, but not limited to the following –
- Certificate of identification: it requires the district magistrate (a authorised government official) to issue a ‘certificate of identity’ to a transgender person without any medical or physical examination. A person undergoing surgery to convert gender to male or female may also apply for an updated certificate showing gender transition.
- Every business is required by law to develop an equal opportunity policy for transgender people.
- The government is required to develop transgender-sensitive, non-stigmatizing, non-discriminatory assistance systems and initiatives.
- Provide medical care facilities including sex reassignment surgery and hormone treatment; and pay medical expenditures for sex reassignment surgery and associated therapies.
- Incorporation of the National Council for Transgender People (NCTP) to assist the government on transgender policy design and monitoring.
Notwithstanding the utility that is always anticipated to be exhibited by the law, people belonging to transgender community are reluctant to embrace the new set of rules, for the reason that it doesn’t sit consistent with the idea reflected by NALSA Judgment.
Its decision was lauded for its affirmation of a person’s right to self-identification in terms of legal gender recognition. This was consistent with the view that determining legal sex should be examined in light of constitutional principles, wherein a constitutional space for the right to self-determination is established within a broader legal concept of autonomy-preserving protections; but, by requiring a medical officer to establish identification, NALSA’s touchstone of guarantees; right to equality, dignity, and privacy collapses.
“You’re basically putting a lot of burden on trans people and adding a lot of bureaucratic layers and red-tapeism,” [6]
The Transgender Persons Act’s definition of a ‘transgender person’ is vague and confusing. Even though a transgender person is defined as someone who has a different gender identification from the one assigned at birth, a ‘person with intersex variants’ is defined as someone whose gender is determined by biological traits. Although this distinction is subtle, the concept of ‘transgender individuals’ has been widened to include a ‘person with intersex variants’. There is no mention in the law of civil rights such as marriage, adoption, or social security, nor is there a quota for transgender individuals in public education or employment, as the Supreme Court had mandated in 2014. In addition to that, it imposes a maximum sentence of two years in jail and a fine, which may not suffice to punish more egregious crimes such as sexual abuse, rape, or criminal assault; however, under Indian law, sexual abuse of a cisgender (that is, a person whose gender identification matches their sex at birth) woman or child can result in a life sentence or, in certain circumstances, the death penalty.
Recommendations
- Definition
The government’s need for proof is understandable in light of the gravity of the choice being made. A medical examination, on the other hand, is quite intrusive. There is a need to strike the right balance between the idea of privacy and the requirement for verification. Rather than that, a practise followed in the Netherlands may be an option. This enables transgender persons to legally alter their gender after obtaining a declaration from an expert confirming the individual’s permanent desire to identify as another gender.[7] If they choose to have a second gender transition, they may undergo a medical evaluation if necessary.
- Healthcare
The LGBTQ+ community’s needs in childhood care, sexual health care, medical treatment, and mental health care are currently underserved. Insufficient understanding may lead to the persistence of homophobia and transphobia. Ensuring that medical personnel are knowledgeable, socially aware, and competent of delivering the best possible care requires the government to mandate all caregivers and medical professionals to undergo a course on sensitization and any additional measures necessary in the care of transgendered people.
- Education
Education is perhaps the most serious instance, mentioned under Section 13 of the Act. [8]
Special government-funded scholarships for transgender students to provide them access to all levels of school are essential aspects of education that might be studied. School and college courses must become more inclusive. Teachers must be instructed to guarantee that transgender and gender non-conforming youngsters are not discriminated against. To fight marginalisation, the government must also give scholarships for transgender children to attend all levels of education.
[1] Jain, Dipika. (2020). New Intimacies/ Old Desires: Law, Culture and Queer Politics in Neoliberal Times.
[2] https://india-seminar.com/2015/672/672_kalpana_kannabiran.htm
[3] National Legal Services Authority v. Union of India A.I.R. 2014 S.C. 1863.
[4] A.I.R. 2014 S.C. 1863.
[5] Human Rights Council, United Nations General Assembly (2015), “Discrimination and Violence against Individuals based on their Sexual Orientation and Gender Identity”, Report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/29/23), dated May 04, 2015. Available at: https://undocs.org/A/HRC/29/23
[6] Ajita Banerjie, a Delhi-based gender and sexuality rights researcher.
[7] “LGBTI Equality in the Netherlands”, The Government of Netherlands, available at https://www.government.nl/binaries/government/documents/leaflets/2018/06/01/lgbti-equality-in-thenetherlands/180718+Factsheet+NETH LGBTI+Equality.pdf
[8] Section 13 of the Transgender Persons (Protection of Rights) Bill, 2019, provides:
‘Every educational institution funded or recognised by the appropriate Government shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination on an equal basis with others.’
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