This article is a critique on the The Transgender Persons (Protection of Rights) Act 2019, which has been authored by Daniyal Qureshi, student of Symbiosis Law School Pune
Introduction
On 5th December 2019, the central government finally notified The Transgender Persons (Protection of Rights) Act 2019 (hereafter referred to as ‘Act’) which had been much debated over the since its first introduction in the year 2016, in the official gazette of India. The preamble of the Act is short and concise and explains that the Act aims to protect the rights and freedoms of the transgender persons in India.
The transgender persons have long suffered in India. However, in the last 5 year, there have been major legal advancement to protect the liberties of sexual identity in India. Starting with the judgement in National Legal Services Authority v. Union of India 2014[1], wherein Justice K.S. Radhakrishnan pronounced transgender to be the third sex in India and the judgement in Navtej Jauhar v. Union of India[2] 2018 wherein the Supreme Court took down Section 377 of the Indian Penal Code, decriminalising the sexual Activities of the LGBTQ community, and finally the Act.
Salient features of the Act
The Act consists of 9 chapters and lays down elaborate foundations for the administration of transgender person rights.
Prohibition of discrimination
Chapter 2 of the act aims at prohibited discrimination against a transgender person based on their gender. However, the constitution already affords protection against discrimination based on sex to every person in the country. The questions arise what does this chapter specifically intends to provide for apart from the constitutional protections. The answer is to that it expands the applications of anti-discriminative laws. While part 3 of the constitution is specifically available only against the state, chapter 2 of the Act has wider applicability, available against private entities also. It prohibits discrimination on the basis of gender in education, employment or occupation opportunity, healthcare service, and residence.
However, something notable under the Act is Section 3(e). This provision prohibits denial or discontinuation of any facility or service that is generally or customarily available to the public at large. This gives rise to a peculiar situation. The Act aims to prohibit any person from discriminating against the third gender even in their personal capacity.
Right to self-identification
The Act defines a transgender person as a person whose gender does not match with the gender assigned to them at birth, including a trans-man or a trans-woman. The Act specifies that any sort of medical procedure in respect to the gender reassignment of a person is irrelevant to the identification of a person as a transgender person. Section 4 of the Act grants the right to self-identification of gender to a person. Section 6 of the Act also enables a transgender person to legally change their first name on all of their documents w.e.f. from the issue of the certificate of identity.
Certificate of Gender Identity
The Act provides a mechanism for obtaining a gender identity certificate in two manners. Under Section 6 of the Act, a transgender person may obtain a certificate of gender identity by making an application to the district magistrate, in a situation where the person hasn’t undergone any medical procedure for sexual reassignment.
Section 5 enables every major person to obtain a certificate of gender identity under and every minor to obtain a certificate of gender identity but with the consent of the parents or the guardian of the child.
Under Section 7 of the Act, the provision is made for a certificate of gender identity if a person undergoes a medical procedure for sexual reassignment after having obtained a certificate under section 6 of the Act.
According to the the draft rules issued for the invitation of comments by the Ministry of Social Justice and Empowerment on 17th April 2020, a transgender person may make an application for such certificate accompanied with the report of a psychologist from the hospital of the appropriate government. As per section 7 of the Act, any transgender person has the right to obtain a revised certificate after having undergone any sort of medical procedure in regards to sexual reassignment.
The National Council for Transgender Persons.
Chapter 7 of the Act establishes a National Council for Transgender Persons chaired by the Minister for Social Justice and Empowerment as the ex-officio Chairperson and the Minister of State for Ministry of Social Justice and Empowerment as the ex-officio vice-chairperson of the council.
Of the proposed members of the Council, only 5 members are required to be from the transgender community itself from across the country. The powers of the council have neither been detained under the act nor in the draft rules submitted by the Ministry of Social Justice and empowerment yet.
The Criticism
Since the introduction of its very first draft in the year 2016, the bill had attracted sharp criticism and the protests from the community that it claims to protect.
Earlier drafts of the bill had some serious flaws and drawbacks. The very definition of a transgender person was humiliating and regressive. The 2016 draft defined transgenders to be “not wholly male not wholly female”. The draft of the bill provided no right of self-identification of gender, which flew directly in the face of the 2014 NLSA judgement from which the mandate to enact the law emanates. Another drawback that the earlier drafts had been that the criminalised begging. This attracted ferocious and vocal protests from the community. The earlier draft of the bill also mandated a sex reassignment medical procedure for a person to claim to be of the third gender.
Discrimination
The definition of discrimination is absent from the Act entirely. The Act fails in its purpose for laying down special enumerated safeguards for the community. There is nothing so to such effect that would not be ordinarily found under the prevailing law that can be found in the constitution and the penal code. Simply providing for the prohibition against discrimination without eliciting what constitutes discrimination is a gimmick.
To understand this, the example of the famous case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In this case, the Supreme Court of the United States ruled in favour of the appellants, who refused to serve a cake to a gay couple citing their religious beliefs. They refused to provide a wedding cake to a gay couple saying that their religious beliefs do not condone the communion of two men. The Supreme Court of the United States upheld the religious freedom and held that the cakemaking was an art and a form of expression for the appellants and that they would reserve the right to refuse to serve anyone as they please. Whether such a situation where private entities refuse to serve the third gender be qualified as discrimination or not?
In the stead of an elaborate, elucidative law which provided pragmatic and executable safeguards to the LGBTQ community, the central legislature has stuck the community with a brief piece of enactment without any real teeth.
Self-Identification
Under Section 6 of the Act, the District Magistrate only has the power to issue a certificate to reassign the gender of a person to “transgender” not to “male” or “female”. For that matter, a person would have to comply with the procedure of Section 7, which requires a medical procedure. This is violative of the right to self-identification of gender. It limits the ability to self-identify to only as a transgender. This virtually forces a transgender person to a medical procedure to attain the legal status for a change to another binary gender.
Offences and Punishment
Section 375 of the Indian Penal Code 1860 defines rapes as a sexual offence committed against a woman. The following provision to that, Section 376 provides a punishment of minimum 7 years which may extend for a term of life.
Section 18(d) of the Act enumerates sexual abuse of a transgender person as a crime. And Section 18 lays down a penal liability of imprisonment of six months to two years for a list of crimes which otherwise have different punitive liability under the penal. Nonetheless, the offence of sexual abuse plagues the transgender community rampantly. The act does not recognize the offence of rape against a transgender. There is a disparity in the punishment prescribed under the Penal Code when a sexual offence is committed against a woman and when a sexual offence is committed against a transgender person under this act. And the act fails to provide any reasoning or intelligible different for the disparity.
Conclusion
The Transgender Persons (Protection of Rights) Act 2019 is nothing but an elaborate tautology. It achieves nothing as was required by the directions given by the Supreme Court in the 2014 case. The legislation fails across the board and has no real teeth to achieve the purposes that to claims to achieve. Definitions are absent, enunciation and elaboration of the offences are not found and the act is void of any criminal jurisprudence whatsoever.
While the government has gone to length to listen to the criticism to the first draft introduced in 2019 and has inculcated the many of the suggestions of the people. However, the fact is that the first draft was atrocious, to begin with, with provisions that mandated sex-change surgeries and ban on begging and humiliating and offensive definitions, that the modified end product is nothing but a useless gimmick that has no real power to achieve any of the things its claims to achieve.
Leave a Reply