This article is written by Mehak Jain, a student of the Hidayatullah National Law University, Raipur.

The Journey from Transgender Day of Remembrance to Gender Justice Murder Day

December 17, the day on which the Trans Persons Protection of Rights Bill was passed is regarded as a “Black Day”. On this day, the bill which was supposed to acknowledge and resolve the concerns of the marginalized transgender community in India, was passed hurriedly by the Lok Sabha. But even after 27 amendments, the Bill failed to address the major concerns highlighted by India’s trans community.

A trans person is a person who’s self-perceived gender identity differs from that at the time of birth. It includes Hijras, Kothis, Aravanis and other communities in India. These communities face abuse on a day-to-day basis and undergo a lot of struggle to carry on with their lives. In 2014, with the NALSA v. UOI judgement of 2014 was passed in their favour, they looked forward to a better life. However, the Trans Persons (Protection of Rights) Act of 2019 diluted what the judgement aimed to seek and gave rise to new problems for the community.

A rich history

Transgender persons have been a part of Indian society for centuries. The concept of “trityaprakriti” or “napumsaka” has been an integral part of India mythology.

Vedas recognised the being of three genders. They described individuals belonging to one of the three categories, based on one’s nature or prakriti. One of the most fundamental texts of ancient Hindu law, Manu smriti, explains the biological origins of the three sexes. According to this, if the quantity of male seed is greater, a male child is produced. If the quantity of the female seed is greater, a female child is produced; and when both are in equal quantities, a third-sex child is produced. 

Both of the most eminent Hindu epics, Ramayana and Mahabharat acknowledge the existence of third gender, by the characters of Shikhandi and Aravan. The Hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis.

Even in the Islamic world, Hijras played a conspicuous role in the royal courts. They rose to illustrious positions such as political advisors, administrators, generals as well as guardians of the harems. Hijras were considered clever, trustworthy, and fiercely loyal and were closely associated with the kings and queens. They enjoyed significant power and authority during this period.

However, the introduction of British period brought about new legislations which criminalized transgender persons which led them to marginalization and discrimination.

The Criminal Tribes Act

The Criminal Tribes Act was a product of British rule, by which entire communities were criminalized by designated as habitual criminals. This act painted entire ethnic and social communities in India as “addicted to the systematic commission of non-bailable offences” and imposed restrictions on their movement as well as incorporated their arrest.

The law was apparently created to bring into account groups like Thuggees and other tribal communities; however, it also included provisions limiting the rights of transgender communities in India. The label “eunuch” was used as an umbrella term to catch anyone who did not conform to traditional British ideals of masculinity.

The act was repealed in 1952; but by then, significant damage had already been cast on the community.

The landmark NALSA Judgement

In 2012, National Legal Services Authority, a statutory body constituted to provide free legal services to eligible candidates, filed a writ petition before the Supreme Court of India seeking a legal declaration of transgender persons’ gender identity than the one assigned to them at birth, and that this non-recognition violates Article 14 and Article 21 of the Indian Constitution.

The Court analysed legislations of other countries in the world, which included United Kingdom, Netherlands, Germany, Australia, Canada etc., to highlight the fact that the recognition of “sex identity gender” of persons and “guarantee to equality and non-discrimination” on the ground of gender identity or expression is increasing and gaining acceptance in international law and therefore be applied to India as well.

A wide range of transgender related identities, cultures and experiences were perceived which included Hijras, Eunuchs, Aravanis and Thirunangi, Kothi, Jogtas and Shiv-Shaktis.

The Court also called attention to abide by international conventions and norms for the interpretation of gender equality. Article 1 of the Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and rights. Articles 3 and 5 also provide for the same. The International Covenant on Civil and Political Rights and the United Nations Convention against Torture or Other Cruel Inhuman and Degrading Treatment or Punishment were other such conventions which talked about safeguarding the rights of the marginalized and discriminated.

Special attention was drawn to the Yogyakarta principles. The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birth right.

The Supreme Court held that gender identity and sexual orientation include transgenders and that “[e]ach person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures […] as a requirement for legal recognition of their gender identity.” [para. 20] The Court also declared persons apart from binary gender(such as Hijras and Eunuchs) as “third gender” to safeguard their rights under Part III of the Indian Constitution.

The writ petition was allowed and an expert committee was constituted to make an in-depth study of the problems faced by the Transgender community and suggest measures to ameliorate their problems.

Historical Context of the Act

The Supreme Court of India delivered its judgement in NALSA v. UOI in 2014, in which it upheld a transgender person’s right to self-perceived identity and recognised their rights. While the case was still going on in Court, an Expert Committee report was published in 2014 which highlighted the issues relating to the transgender communities. 

In this background, Tiruchi Siva of the Dravida Munnetra Kazhagam part introduced a private member’s bill in the Rajya Sabha named Rights of Transgender Persons Bill, 2014.

The Bill was unanimously passed by the Rajya Sabha pn 24 April 2015. However, the bill underwent significant changes when the government drafted its own version of the bill. It was sent to the Law Ministry and was known as the Rights of Transgender Persons Bill, 2015. On 26 February 2016, the bill was introduced in the Lok Sabha by Baijayant Panda of the Biju Janta Dal party, and was discussed on 29 April 2016.

Following the 2014 general elections, the 2016 bill was tabled while the 2014 bill passed by the Rajya Sabha continued to be pending. The former bill was referred to a standing committee which submitted its report in July 2018. The Lok Sabha tabled and passed a newer version, which also lapsed. 

Post the 2019 general elections, the bill was reintroduced in the Lok Sabha on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot and was passed undebated amidst the chaos following the revocation of Jammu and Kashmir’s special status by the Parliament. It was subsequently passed by the Rajya Sabha and signed by the President of India on 5 December 2019 and obtained the form of law.

Features and Aspects of the Act

Section 2(k) of the Trans Persons (Protection of Rights) Act of 2019 defines transgender person as someone whose gender does not align with the gender assigned to them at the time of birth.

Such a person need not have undergone Sex Reassignment Surgery or other such therapies, and includes persons with intersex variations and persons having other socio-cultural identities.

The Act further prohibits discrimination against the community on certain grounds, including unfair treatment by or denial from workspace, educational, health and other institutions.

The most important aspect of this Act, Section 4(2) gives a trans person a right to “self-perceived gender identity”, i.e. the personal sense of one’s own gender. 

Sections 5, 6 and 7 necessitate the obtainment of a certificate of identity by the District Magistrate, which shall confer rights and be a proof of recognition of their identity as a transgender person. They also provide for a revised certificate in case a transgender person undergoes surgery to change gender either as male or female.

Subjecting a trans person to any harm or injury, including mental, physical, sexual and economic abuse shall be punishable with imprisonment from 6 months to two years and with fine.

The National Council for Transgender Persons was also constituted by the Act. Its main functions ensure excering the powers as well as performing the functions assigned to it by the Act. The Union Minister in-charge of the Ministry of Social Justice and Empowerment is the ex-officio chairperson of the Council.

Lacunas and demands

While the Act can be said to be progressive in nature, it has certain anomalies and discrepancies which go on to prove that it needed further refinement and was passed hastily.

The ambiguity in the clause referring to the obtainment of identity certificate approved by the district magistrate makes Section 4(2) and Section 5, 6 and 7 have a head-on conflict. Ironically, the Act allows the individual to self-identify their gender, and yet it still mandates confirmation from a district magistrate. This very procedure separates them from the mainstream genders and results in further ghettoization. If a-cis gendered person isn’t subjected to the mandated requirement and humiliation of undergoing through screening to obtain their a certificate which gives them their identity, why does a trans person have to? The law is silent about the procedure of this screening process too. 

The trans person has to stand in front of the DM and convince them that they are transgender. No redressal mechanisms have been addresses in case the DM does not issue such a certificate to the transgender person. 

Apart from National Councils, State and District level Councils need to be paid attention too. “A person from a district in Odisha would have to travel all the way to Delhi for grievance redressal as mentioned in 17D of the clause. Many transgender persons do not have the socio-economic capacity to do this and the Bill does not factor this in.”

The Bill aims at inclusivity and yet it demarcates significant different between a trans-woman and a cis-woman.

There’s only one clause mentioning sexual crimes against a trans person, which groups all sexual crimes, ranging from sexual abuse to rape together. It is even further discrepant as the penalty for sexual crimes against a transgender person carries a relatively light sentence of up to 2 years in prison, whereas rape against a cis-woman under the IPC warrants life-term sentence which may extend to death in the rarest of rare cases.

Section 18 of the Bill does not subscribe penalties if the police officers refuse to register their complaints or the doctors refuse to provide them services.

The Bill originally provided that no trans person can be separated from their family, owing to their identity, except on Court’s order. Clause 12 of this Bill, now seeks to limit it to transgender children and not transgender persons, pursuant to the recommendations of the Standing Committee. People may discover their sexual identity when they are no longer children by the definition of the law, and then they may be thrown out of their parental home. So by restricting this right to children, we are committing an injustice.

A critical analysis of the Act shows how there’s certain flaws which need to be addressed, else they’ll do more harm than good. Essentially, the object of this Act is not only to give legal rights to the trans community, but to also ease their entry into the mainstream and help them live their lives with dignity and equal rights. The trans community is also human after all, who occupied powerful influential positions in the past. This Act should be a measure to undo the wrongs committed to them and translate them into equally important, dignified and productive members of the society.