This article is written by Ishikaa Seth pursuing BA.LLB from University School of Law and Legal Studies, IP University, and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
This article has been published by Sneha Mahawar.
Table of Contents
Evaluation and Impact of the Trans Act 2019 on the Third Gender
The society that we are a part of is organised on the basic tenants of gender and sex. Individuals are characterised as ‘female’ or ‘male’, and this phenomenon is deep-rooted at all levels of society. Although, this gender binary system-based categorisation of sexual orientation is interrupted by gender diversity. This diversification poses a threat to the gender binary system in many ways – via gender fluidity, third or other genders, intersex, genderqueer positions outside of the gender and much more. Transgender people also question this normalisation of the gender binary system that permeates society. There are a multitude of socio-cultural groups of people who identify as transgender in India like – Hijras or Kinnaras, as well as other third gender identities being Jogappas, Shaktis, Jogtas, Sakhi, Aradhis and more. These subgroups deal with extreme discrimination and persecution. They often become a target of various inequitable conducts, including but not limited to verbal, physical and sexual abuse and violence; false imprisonment; denial of admission and services in educational and professional institutions; refusal to participate in inheritance of property; victimisation in educational, professional, health-care, and family settings. This paper aims at underlining some of the major challenges that the community is confronted by in India with due emphasis on the Transgender Persons (Protection of Rights) Act, 2019; and further tries to draw attention to a few recommendations in order to upgrade their position and status in society.
The objective of the study
- Underlining the complications and discriminations confronted by the transgender people in India.
- Evaluating the Transgender Persons (Protection of Rights) Act, 2019 and analysing its impact on the trans community.
- Drawing attention towards a few recommendations in order to upgrade the community’s position and status in society.
Introduction: The third gender
Being transgender is not a psychological disorder and hence cannot be “cured” with treatment. Transgender people may feel a constant disconnect between their internal sense of self and their assigned sex. Gender dysphoria is a medical term for this disconnect, which can cause pain and distress in the lives of transgender people.
Experts should be consulted by parents who suspect their children are transgender. The real challenge is determining whether or not a child identifies as transgender and should be done through evaluation by a professional.
It is important to note that many children who are not transgender question their gender identities. Safer advised parents to be sensitive to their child’s feelings and to accept that there will be no medical intervention until the child reaches puberty. Even so, initial medical treatments can be rectified.
Transgender
The term transgender has a broad scope and is used to identify people whose gender identity does not conform with the sex that they were assigned at birth. For instance, a transgender person may identify as a male regardless of being born with female reproductive organs.
Sex V/s Gender
Despite being referred to as synonyms, gender and sex are two entirely distinct concepts. The sex of a person refers to their biologically assigned sexual or reproductive organ i.e., either male or female.
Whereas, gender is more of a social construct and may not conform to the status that has been biologically assigned. This societal construct typically pertains to behaviours as well as roles that have been assigned and are expected of each gender identity. These gender roles influence the way people act, perceive themselves and others and may vary across cultures and civilisations. It is a range of characteristics that may include gender identity, sex based social structure or biological identity.
Sexual Orientation V/s Gender Identity
Sexual orientation and gender identity are often misunderstood as similar concepts, when in reality these two are also two completely different phenomena. Sexual orientation can be described as a person’s sexual, romantic or emotional attraction to another person. On the other hand, gender identity is the person’s sense of self. Transgenders may identify as any sexual orientation including but not limited to gay, lesbian, straight, bisexual etc. For example, a person who has been assigned female sexual organs at birth may transition into a male and be attracted to men. In this scenario, the person’s sexual orientation will be gay even if he was born a female. People change their names after transitioning which may be something neutral or one that conforms to their gender identity.
Problems Faced by the Transgender Community
Transgender people in India face a number of challenges. This discrimination not only denies TG people equal access to critical social goods such as employment, health care, education, and housing, but it also excludes them in society and places them among the vulnerable groups at risk of social isolation.
Marginalisation, Social Exclusion and Impact of Family Reactions
At the individual, interpersonal, and societal levels, marginalisation is at the heart of exclusion from fulfilling and full social lives. People who are overlooked have little control over their lives and resources; they may become repressed and are frequently the target of negative public attitudes. Their opportunities to contribute to society may be limited, and they may develop low self-confidence and self-esteem, as well as become isolated. The consequences of denigration in terms of social exclusion are similar, regardless of the origins and methods of oppression, whether these are to be found in social attitudes (such as attitudes toward impairment, sexuality, ethnicity, and so on) or social circumstance (such as closure of workplaces, absence of affordable housing and so on).
TG people may face multiple forms of alienation, such as racism, sexism, poverty, or other factors, in addition to homophobia or transphobia, all of which have a negative impact on their mental health. Often Transgender people are forced to the fringe of society due to the stigma attached to their sexual orientation as well as gender identity that differs from the expected heterosexual, non-transgender norm. This oppression often excludes transgender persons from support structures, including their own families, leaving them with limited access to services that others take for granted, such as medical care, justice and legal services, and education. Transgender people are frequently denied access to basic public services such as health care and housing due to oppression and bias surrounding sexual orientation and gender identity and expression, which contributes to significant health disparities.
Transgender people’s familial oppression impedes initial prevention and education efforts, encourages risk-taking actions that can lead to HIV infection, and creates barriers to receiving proper medical treatment and psychosocial support for Transgender youth who are already living with HIV/AIDS. Furthermore, in the absence of other forms of support, many transgender youths are forced to engage in outlawed activities such as sex work in order to survive, pushing them further to the margins of society and exposing them to a greatly increased risk of HIV. Hijras/transgender people face significant discrimination in public places such as restaurants, cinemas, shops, and malls. Furthermore, access to public restrooms is a serious issue that they frequently face. Because there are no separate restrooms for Hijras/transgender people, they must use male restrooms, where they are vulnerable to sexual assault and harassment.
Conflict and Rejection
Transgender people face a variety of challenges within their families. Most families do not accept gender-nonconforming actions in their children, which can begin as young as three to five years old. Many parents experience a range of emotions when learning that their child is transgender or gender genderqueer: some are sad, fearful, and disappointed, while others are shocked, angry, and upset. Few people are willing to support their loved ones without attempting to change them. Anxious parents blame their children’s gender nonconformity on a variety of factors, including mental illness, sexual abuse, confusion, rebellion, or poor social interaction. Believing that the only way to help their kids thrive as adults is by helping them to try and “fit in” with their gender normative friends; trying to impose their children to comply with the gender assigned at their birth through abuse, threats, bullying, and medical “treatment.” Gender nonconforming and transsexual children’s self-esteem and feeling of self are harmed as a result of these reactions.
Homelessness
Among the numerous issues confronting transgender people who are homeless is a lack of housing and services that meet their specific needs. They are living on city streets because they were evicted from their homes for being gay or fled to avoid an abusive situation. Family housing in the shelter system is not available for homeless same-sex couples across the country. Transgender people are not allowed to choose which gender they prefer to live as in the shelter system. Transgender homeless people are routinely abused and harassed in shelters. A lot of shelters for domestic violence refuse to accept transgender people. Homeless Transgender youth are denied education and social support during critical formative years; more than half of homeless Transgender youth report peer discrimination.
Impact of Exclusion and Discrimination
Exclusion and discrimination have major impacts on the lives of transgender persons. This has resulted in the following:
- Dropping out of school earlier
- Leaving Home and Family
- Unable to find regular jobs, have less options than others.
- Being ignored in the community and isolated
- Unable to access various services and Unaware of what they are entitled to
- Mobility, Move to other areas, (such as the city and urban areas)
- Lack of family and social support
- Migrate to other countries for seeking safer livelihood and acceptance
- Rejected from Religion (Esp. Muslim and some Christian Fundamentalist sects)
- Attempt suicide
- Decide to follow their parents to marry opposite sex and then divorce.
Harassment at Educational & Professional Institutions
The transgender community is highly oppressed and vulnerable, and it lags significantly behind on the human development index, especially in the area of education. Because the majority of this community is illiterate or undereducated, they are unable to fully participate in social, cultural, political, and economic activities. In reality, educational institutions are heavily gendered. The social stigma of gender-nonconforming and transgender children and youth is exacerbated by the educational system, which mirrors society in reinforcing strictly binary and patriarchal gender norms.
The social exclusion and interrupted education further limit the livelihood and employment opportunities for the community. There are several factors responsible for their economic deprivations which are as under:
- Exclusion from Family and Society
- Discrimination at work place
- Lack of awareness and training in the area of vocational skill development
- Lack of opportunities
Employers’ lack of confidence in hiring them Economic systematic disenfranchisement exacerbates stigma, discrimination, and violence against gender-nonconforming and transgender children in families and school systems. Those transgender people who survive the hostility they face as children and youth find their employment opportunities limited, both by their limited formal education and by stigma and discrimination in many employers’ recruitment practises, as well as hostility in most workplaces, the absence of gender-appropriate rest rooms, and so on.
Transphobia, Psychological Distress and Victims of Hate Crimes
Transgender people are more likely to face intolerance, discrimination, harassment, and the threat of violence because of their sexual orientation than heterosexual people. This is because of transphobia. Moral, religious, and political beliefs of a dominant group are some of the factors that may reinforce homophobia on a larger scale. Living in a transphobic atmosphere drives many TG people to conceal their sexuality for fear of the negative reactions and consequences of coming out. Negative thoughts or attitudes toward non-heterosexual behaviour, identity, relationships, and community can lead to transphobic behaviour and attitude, which is really the foundation of many TG people’s discrimination. Transphobia presents itself in a variety of ways, including physical attacks, workplace discrimination, and negative media representation.
In their daily life, transgender people confront significant stigma, prejudice, and harassment. The vast majority of Transgender persons learn to manage with this, especially when they have the support of family and friends and join in Transgender community and social networks. However, a large number of Transgender persons, particularly younger Transgender people, were required to comply with stigma, discrimination, and harassment throughout the absence of assistance. Many endured additional stresses as a result of experiences such as relatively high rates of homophobic bullying in schools, as well as physical and verbal abuse. This impacted their mental health, resulting in significant levels of psychological distress, self-harm, and suicidality. Experiences that have a negative impact on mental health:
- Hostility or rejection from loved ones or religious groups
- Hharassment in neighbourhood, bullying, threat of violence
- Casual homophobic and transphobic comments on a regular basis
- Prejudice/embarrassed response from professionals
- No protection against discrimination at work, housing, pensions, etc.
Transgender people are frequently victims of hate crimes and violence. They face stigma and discrimination throughout their lives, and are victims of sexual and physical assault, harassment, and hate crimes. TG communities have a big stake in issues of legal inequality. Violence and discrimination disproportionately affect specific groups within the TG community, sometimes at the hands of law enforcement officers. In recent years, there have been numerous reported cases of police brutality directed at transsexuals. Many police departments have been accused of insensitivity, including failing to respond appropriately to violence directed at transgender people.
Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Bill 2019 has been passed by the Parliament. It was passed by the Rajya Sabha on 26th November, 2019 and already passed by the 17thLok Sabha on 5th August, 2019.[1]
The Transgender Persons (Protection of Rights) Act, 2019 (‘Transgender Persons Act’) seeks to recognise the identity of transgender persons and prohibit discrimination in, inter alia, the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and use of public services and benefits.
Background
In National Legal Services Authority v. Union of India [3], the Supreme Court of India laid the foundation for transgender rights in India by identifying ‘transgender’ as the ‘third gender’ and establishing several measures to prohibit discrimination against transgender people and protect their rights. The judgement argued for transgender people to be given preference in occupations and educational institutions, as well as the right of transgender individuals to announce their self-perceived gender identity without undergoing sex reassignment surgery.
A private member’s bill was introduced in the same year in the Indian Parliament which was passed by the upper house, a rare feat in itself, since, not a lot of private members’ bills have moved this far. However, while the private member’s bill was still pending, in 2016, the Indian government drafted and tabled its version of the bill in the Parliament which was referred to a Standing Committee of the Parliament for further suggestions.[4] In 2018, a new version of the bill was introduced based on the Committee’s suggestions. At the suggestion of the committee, a new version of the bill was presented in 2018, but with the dissolution of parliament in 2018 and the formation of the new central government in 2019, the bill was reintroduced and finally entered into force.
With the Transgender Persons Act just coming into force, it is critical to grasp the key aspects of the law, the achievements and shortcomings, and the repercussions on employers, particularly in the private sector.
Key Features of the Law
Definitions
The definitions of transgender persons and people with intersex variation have been made inclusive of males and females, even if the person has not undergone any therapy such as hormone therapy, sex reassignment procedure or any other.
Non-discrimination
The law is in the strict prohibits of discrimination against transgender persons at educational or professional institutions, healthcare and other public facilities as well as reinforces their right of movement, property and holding of offices.
Identity Certificate
It administers the right to a gender identity that is self-perceived and further casts a responsibility on the district magistrate for the issuance of a ‘certificate of identity as a TG person, without undergoing a medical assessment. It also provides for a further change of gender to female or male for any person claiming a change in gender.
Equal Opportunities
It further administers equal opportunities with regard to policy matters for the transgender community. The law has mandated the formulation of certain specific policy measures that would be inclusive of transgender persons.
Complaint Officer
The law requires every establishment to create a specific designation of a complaint officer.
Healthcare and Medical Facilities
The law also provides for the establishment of separate HIV surveillance centres for TG persons; the facilities need to be inclusive of healthcare relating to hormone therapies, sex reassignment procedures etc., as well as cover medical expenses by an insurance scheme that is specific to the medical needs of transgender persons.
National Council for Transgender Persons (‘NCT’)
The law also mandates the constitution of the NCT in order to guide and advise government officials for the auditing of existing policies and the formulation of new ones as well as redressal of grievances.
Offences and Penalties
Offences such as forcing transgender persons into labour; or refusing accessibility to public facilities; mental, emotional, physical and sexual abuse or violence; and other related offences have now been covered under the act and are publishable by law.
Latest Compliances for Employers
The Act also provides for a completely new bundle of compliances for all professional institutions to follow which also includes all private employers. Given these requirements, employers will be expected to update their HR policies as well as strive towards sensitising and training employees to accommodate transgender persons.
- Prohibition discrimination in order to provide a working environment which ensures safety and growth.
- Publish a policy for equal opportunities for transgender people.
- Establishment of infrastructural amenities and facilities such unisex toilets, hygiene facilities, confidentiality, transportation and much more.
- Requirement of designating a complaint officer at every establishment.
Analysis of the New Law
The Hits
Over the years, there is an urgent need to raise the awareness of different communities and institutions so that they are actively responsible for recognizing the rights of transgender people and treating them with basic human dignity and equality with other genders, whether in educational institutions or guaranteeing employment. Equal opportunities or guaranteed access to medical care and use of public welfare and facilities. This is a step forward for India towards the protection of the rights and identity of transgender people. The Transgender Act shows that India is moving towards a more inclusive and progressive society where people’s opportunities will not be restricted by gender. It is hoped that this will ensure that labour standards comply with international standards.
By enacting this law, India has adhered to the international standards for the protection of human rights envisaged by the Office of the United Nations High Commissioner for Human Rights in 2015, and recommended that countries begin, “[…] upon request to issue legal identity documents that reflect your preferred gender. Eliminate abuse of prerequisites, such as sterilization, forced treatment, and divorce. Similarly, the 2015 WHO report recommended that governments must “[…] take all necessary legislative, administrative and other measures to fully recognize each person’s self-defined gender identity, without medical requirements or discrimination on any grounds.”[5]
Amid large-scale criticism and pan-Indian protests, a more prominent and controversial issue related to the criminal conviction for begging from transgender people, which was part of the previous draft bill, has been dropped. Although begging will continue to be a major problem that must be addressed, by not criminalizing this behaviour under the Transgender Law, the government has at least tried to minimize the need to earn a living without any other means of earning a living. Sexual harassment.
The need in the previous law with a requirement of a medical screening and assessment to get an identification certificate has been abandoned from the new Trans Act. This would assist in reducing trauma as well as harassment that transgender persons have to experience.
And the Misses
The definition of “transgender person” in the Transgender People Act is vague and misleading. The gender identity of transgender people is different from the gender identity provided at birth, while “intersex variants” are based on biological characteristics. Although two subtly separate definitions create differences, the definition of “transgender” is too broad to include “people with intersex variation.”
The penalty for offences under the Trans Act include imprisonment of only up to two years with a fine, which appears to be insufficient for heinous crimes like rape, sexual abuse or violence, sexual harassment or criminal assault.
The Transgender Persons Act is likely to remain unsatisfactory because it fails to provide a skeleton on a variety of other associated rights, such as marriage rights, adoption rights, pregnancy rights, and so forth – a missed opportunity to be even more comprehensive.
The Transgender Persons Act imposes far too many requirements on the “appropriate government.” It remains to be seen how much emphasis the government will pay to ensuring that all of those duties are met on schedule – leaving transgender people at the mercy of the system for successful implementation of the benefits offered to them under the Transgender Persons Act.
Some people may argue that if the Transgender People Act provides reservations (affirmative action) for transgender people in educational institutions and employment, it may better attract transgender people, and it will be more comprehensive and effective.
Why is the Transgender Community Opposing it
The transgender community has vociferously rejected the Trans Act 2019 stating that the law contains multiple clauses that are in contradiction to their fundamental rights.
- The Act | Claims that transgender persons will have the right to a gender identity that is self-perceived
Activists | Gender identity cannot be changed in official documents without the issuance of a certificate of identity by the district magistrate which can only be acquired after evidence of sex reassignment surgery has been provided.
- The Act | Provides for the right of residence, forcing any TG person below the age of 18 to live with their natal family.
Activists | Transgender often face gruesome discrimination and brutality within their own families due to their gender identity.
- The Act | The law now criminalises begging by transgender persons.
Activists | Although, no efforts have been made for reservation for TG persons in the domains of education and employment.
- The Act | The Act primarily acknowledges Hijras and transwomen.
Activists | There can be seen little to no emphasis on the gender queer, transmen or even intersex.
Transgender Persons Act, 2019 V/s NALSA Judgement, 2014
According to NALSA’s ruling on the Federation of India, transgender people will be regarded as a “third gender” and their rights are protected by the Constitution. It recognizes that gender self-identification is sufficient to empower people. The Supreme Court also held that discrimination based on “gender” is not limited to physical gender, but also includes “innate knowledge of one’s own gender”, that is, the gender identified by transgender people. The court discussed gender identity, acknowledging its indispensable role in shaping an individual’s personality, and as a basic principle of living a dignified life. While this is a historic trial and an important milestone for the transgender community to fight for equal rights, it does not necessarily guarantee their equal treatment, nor does it necessarily guarantee them to live a dignified life.
In light of the 2014 ruling, the parliament presented a series of bills that address the rights of transgender people. The most recent was launched in July 2019 and was later called the Transgender (Protection of Rights) Act 2019. The act has received a lot of negative responses from the TG community because it invalidates and is in contradiction of the NALSA judgment. They claim that the new law is not only inadequate but will also reverse the progress made in guaranteeing the rights of transgender people.
The NALSA ruling recognizes the principle of “self-declaration” without any medical or psychological proof, and is the only legal gender identification required. The verdict also held that any insistence on performing reconstructive surgery is unethical and illegal. The ruling complies with international standards and best practices. For example, the United Nations requires that medical and legal procedures for gender reassignment of transgender people be separated, including the elimination of evaluations by psychologists, doctors or other experts.
According to the Transgender Act of 2019, in order to legally recognize a person’s transgender identity, the bill requires the person to apply for a “transgender certificate”, which will mark their gender as transgender. However, the new rules require the person to submit a psychiatrist’s report in order to obtain a “proof of identity.” In addition, if the person changes their gender to male or female through surgery, they need a “revision certificate” issued by the district judge. The district justice of the peace has the right to judge the “correctness” of the application, although he can show evidence of gender confirmation surgery. The draft rules make the process of gender identification and redistribution cumbersome and intrusive. The rules on how to judge accuracy are unclear. In addition, it does not require administrators to receive training on the subject. By including psychologists, certified physicians, and district administrators, these rules not only exacerbate humiliation and intrusive policing, but also violate the right to “self-declaration” recognized in the NALSA ruling.
Furthermore, the bill stipulates that the abuse of transgender people is a punishable offense, punishable by six months to two years in prison. A similar crime against a cisgender may be punished with life imprisonment or even the death penalty in some instances. Providing milder punishments strengthens the unequal status of the transgender community. The bill is also unclear about opportunities for transgender people to gain civil rights and benefits. The NALSA decision ordered the government to formulate affirmative action measures to “increase the presence of transgender people in educational institutions and public appointments.” However, the new rules do not clearly stipulate those affirmative actions should be taken in the areas of education, health and employment, or civil rights related to marriage, adoption, and property.
Supporting Inclusion
The Diluted Transgender People (Protection of Rights) Act of 2019 did not consider the basic rights, physical autonomy, and dignity of the transgender community, and violated the core of the NALSA ruling. By subjecting them to censorship by psychological, medical, and public authorities, the right to gender self-determination was abolished.
However, rulings such as the repeal of Section 377 by the Supreme Court provide encouraging signs that the state values the recognition of different relationships and families. In order to protect the interests of the community, the law must guarantee equal social, economic and civil rights and prevent abuse and discrimination. It is also important to consult the transgender community before formalizing the rules. The public consultation process should be more inclusive and allow enough time to discuss the rules. The state should consider extending the consultation process until people can safely mobilize to express their concerns effectively. Providing transgender communities with the same constitutional rights is essential to empower them, reduce social stigma, and improve their socio-economic status.
Conclusion and The Way Forward
It can be deducted that though the colonial heritage acknowledges gender diversity in temple sculptures, myths and religious treatises, transgender people in India today still face intolerance, stigma, discrimination and violence. Human rights violations against transgender people violate families, educational institutions, workplaces, law enforcement agencies, healthcare institutions, the media, and society as a whole. Affirmative action is needed to eliminate stigma and discrimination associated with the community. The following actions can help improve access:
- Awareness of gender variety, as well as the need to protect transgender adolescents from hostile educational situations, is critical. Schools and teacher education programmes are critical places for addressing TG issues and concerns. Schools can employ the following policies and procedures to help enhance health and safety among TG students.
- A special school for transgender students should be developed, as well as free education from kindergarten to grade twelve.
- Encourage students to respect each other as well as Initiate strict measures against bullying, harassment and violence.
- Determine “safe areas,” such as counsellors’ offices, dedicated classrooms, or student groups, where TG youth can obtain support from administrators, instructors, or other school personnel.
- Encourage student-led and student-organized school organisations that promote a safe, inviting, and accepting environment in the classroom.
- The community has a culture of folk songs, art and dance that is unique to them. It provides a strong sense of strength and identity to the community. These cultural and artistic expressions are an integral part of the community and must be combined with people’s livelihood activities to ensure more community participation. Efforts should be made to provide sufficient financial support as a link to employment opportunities.
- The community needs to be included in pension programmes in order to enjoy their benefits.
- Inform the police about the issues facing the transgender community. In the event of dishonourable comments and harassment, the law will be followed.
- Make the masses aware of their problems. The impulse of conscience is essential. Local authorities, policy-makers, schools and families need to be further educated on how to accept children with gender differences, treat people of different genders and gender identities equally, and implement policies and plans in a way. “friendly” rather than hostile.
- Transgender human rights issues should be highlighted in the media and other public forums to raise public awareness and improve the ability of transgender people to realize these rights. The stigmatization of media reports must stop.
- Doctors and healthcare providers must meet the specific needs of all transgender people. Advocacy activities should be carried out for counsellors, psychiatrists and other mental health professionals to prevent psychosocial harassment and discrimination.
- Parents must be aware and informed in order to support their gender nonconforming or transgender children, despite their discomfort and deeply held normative ideas. Parents must pay attention to the possibility of their child being subjected to violence outside home– at school, in the extended family, on the playground etc. – and provide appropriate help. They must also be aware of the increased stress experienced by a gender hetero normative or transgender youngster when he or she enters puberty and experiences dysphoria when sexual organs traits conflict with his or her sense of gendered identity.
- After consulting with community groups and human resources professionals with expertise in the field of diversity and inclusion, workplaces in the public and private sectors should increase the sensitivity of employers and employees to transgender issues. Anti-discrimination policies should be developed and applied meaningfully to recruitment, retention, promotion, and employee benefits processes. Sexual harassment policies in the workplace should include transgender people.
- Transgender inclusion must be in policy and institutional reforms that permit access to social security systems aimed at the poor and other vulnerable groups.
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