Transgender Bill: Exploring the Fault Lines and Suggesting Remedies

by Shubham Kumar and Shubham Patel

“I am what I am, so take me as I am.”

—Johann Wolfgang von Goethe

1. Introduction

Transgenders, as defined in National Legal Services Authority v. Union of India (NALSA), are “male and female cross-dressers (sometimes referred to as ‘transvestites’, ‘drag queens’ or ‘drag kings’), inter-sexed individuals, and men and women, regardless of sexual orientation, whose appearance or characteristics are per-ceived to be gender atypical. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereo-typical gender norms.” The issues related to the rights of the transgenders came to the fore after the landmark judgment by the Supreme Court in 2014 in the case of NALSA . In 2011, the census of the population of the transgenders was carried out, and it came to be around 4,87,000. (Census 2011) This data is, however, disputed as the activists estimate the total number to be six to seven times higher than this number.

Although the Indian Constitution grants equal protection to every citizen of the nation, the ground reality is that the transgender people, who are a minuscule minority, face a lot of discrimination on a regular basis, thus showing an appalling state of affairs. In August, 2016 the Government of India introduced the Transgender Persons (Protection of Rights) Bill, 2016 (hereinafter referred as “the Bill”) after the verdict of the Supreme Court in NALSA that recognised the ‘Transgender’ as the official third gender. However, after two years of introduction of the Bill it is still pending for the assent of the legislatures.

If the Bill is passed, then India will become one of the very few countries across the world to have a separate legislation recognising the rights of the transgender persons and giving them the official status of third gender. However, the Bill, in its present form, contains several anomalies which require an indepth analysis and consequent amendments. In this article we will discuss the limitations of the Bill and how if the same is pursued in its present form it would, despite the progressive judgments, render the fate of the transgender community largely undecided and they may still continue to be ostracised.

2. Legislative Journey of the Transgender Persons Bill, 2016

The legislative journey of the Bill has been very discouraging. In 2014, for the first time the Rights of Transgender Persons Bill, 2014 was introduced as a private member’s bill by Tiruchi Siva, a DMK leader. This private member’s bill was criticised by some parliamentarians as being impractical and too complicated. Thawar Chand Gehlot, the Minister of Social Justice and Empowerment, and Arun Jaitley, the Finance Minister, requested Tiruchi Siva to withdraw the Bill on the pretext that the government will come up with a fresh legislation after the suggestions of the concerned nodal Ministry. However, the Rights of Transgender Persons Bill, 2014 was passed on April 24, 2015 in the Rajya Sabha where the Opposition had the majority, making it the first private member’s bill to be passed by the Rajya Sabha in 45 years.

This draft bill by Tiruchi Siva was replaced by the Bill by the government with certain key structural amendments, though retaining the major clauses from the private member’s bill. The Bill was then referred to the Standing Committee, which suggested the definition of ‘Transgender’ contained in the Bill to be amended in order to conform to the international standards of civil rights, along with several other changes. However, the recommendations by the Standing Committee of making the definition more inclusive was rejected by the House. Currently the Bill is pending in the Lower House of Parliament.

3. Issues which Need Reconsideration

The Bill, as proposed by the government, aims for the upliftment of the transgender community. However, the introduced Bill has received severe criticism from the civil rights activists and various quarters of the society. The following section highlights the major shortcomings of the Bill and proposes certain changes in it.

3.1 Limitations in the Definition: The Bill defines a transgender person “as a person who is neither wholly female nor wholly male; or a combination of female or male; neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.” This definition, as is also suggested by the Standing Committee, is against the international norms.1

It needs to be changed to bring it in conformity with the same. Moreover, it is suggested that a modification of the definition is needed as it still defines a transgender person as someone who is considered outside the gender binaries recognised by the society, which on certain counts becomes derogatory.

3.2 Issues related to the Self-identification: The Bill provides that a person recognised as a transgender has rights to self-perceived gender identity. However, Section 5 of the Bill talks about the requirement of a certificate in order to be recognised as transgender. Such a certificate is to be granted by the District Magistrate after an application is made by the person, this would be done after the screening of the applicant before the District Screening Committee.

However, if an indepth analysis of this proposed method is done, then an apparent problem arises. If a transgender person applies for a certificate and the Screening Committee does not deem it fit to grant such a person a certificate to be identified as a transgender person, in such a case the notion of self-perceived gender identity of that person and that of a certifying authority would come in conflict. Also, another aspect which needs to be taken into consideration is that there is no mechanism of appeal being provided if a person who has applied for certificate is aggrieved from the decision of such a committee.

It is suggested that the need for such a committee should be completely done away with (because on certain counts this mechanism is against the dignity of a person), as has been done by Pakistan in their recently enacted Transgender Persons (Protection of Rights) Act, 2018. Alternatively, if the committee is considered as necessity, then a mode of appeal should be provided with.

3.3 No Institutional Machinery: The private member’s Bill, as presented by Tiruchi Siva, provided for a separate institution for trans-gender persons like National or State Commissions for Transgender persons; it also provided for separate courts dealing with offences inflicted against transgender persons. The present Bill fails on these counts and does not provide for such institutions catering to the issues particularly related to the transgender community.

It is suggested that the legislature needs to realise the importance of such institutions and the role they can play in upliftment of the transgender community and thus provide for the same.

3.4 Policy for Reservation: A recent survey, conducted by the National Human Rights Commission (NHRC), revealed that almost 92 per cent of the people belonging to the transgender community are subjected to economic exclusion. (The Times of India 2018) This is primarily due to their exclusion from various forms of employment which forces them into begging or sex work. (Economic and Political Weekly 2018) The data itself highlights the precarious conditions people belonging to the community are forced to live in.

Since the Bill was introduced with the central aim of bringing people from these communities to the main fora of society, it is suggested that the government should follow the recommen-dations of the Standing Committee and make provisions for reservations for transgender people in educational institutions and govern-ment jobs. This step would go a long distance to bring the community from the clutches of economic exclusion.

3.5 Provisions dealing with Personal Laws: Civil Rights like the ones related to marriage, adoption, inheritance, divorce etc. hold pivotal importance in a person’s life. The judgment by Constitution Bench of the Supreme Court in the case of Navtej Singh Johar and Ors. v. Union of India (Navtej Singh Johar) , goes to the extent of recognising the sexual rights of the people belonging to the transgender community. However, the rest of the rights are neither explicitly recognised in the judgment nor by the Bill. As a direct consequence even though there are people who are into marriage-like relations, the same is devoid of any legal recognition from the state, thus excluding them of any benefit which they would be entitled to, had there been legal recognition.

The NALSA judgment recognised the ‘transgender’ as the third gender, but if adoption is taken into consideration, then the registration process available at the website of the Central Adoption Resource Authority has only the following options available: “Couple; Male; and Female” thus rendering anyone who identifies as transgender remedy-less in matters related to adoption.

It is suggested that in light of the NALSA and Navtej Singh Johar judgments and the recommendations made by the Standing Committee, the legislature should include these very basic rights in the law proposed to be passed, so that the rights of the transgender persons are accorded legal recognition.

3.6 Provisions Dealing with Sexual Offences: The Bill provides for prohibition of discrimination based on sexual identity of the transgender persons. Section 19 of the Bill provides for punishment for offences (including sexual offences) against the transgender persons. However, it does not deal with different sexual offences separately and neglects the fact that they are susceptible to varied nature of sexual offences, such as rape, stalking, eve teasing, which all have different ramifications. It fails to categorically define all types of sexual offences which can be committed against the transgender persons; rather it treats all sexual offences in the same/similar manner. The Bill creates an umbrella provision wherein the punishment for offenders of all forms of sexual offences is minuscule compared to what has been provided for gender-specific offences in the Indian Penal Code.

The principles of sentencing are based on the idea that the offenders be punished equally for the same type of offences and there should be no form of discrimination based on race, class, caste, gender, etc. However, the inherent discrimination is glaring in the proposed system where an offender, if he commits a rape on a woman, shall be sentenced to imprisonment for at least seven years which may extend to life imprisonment, but, if he commits rape on a transgender, despite the nature of the offence being the same in both the cases, he will be either charged under Section 377 of the Indian Penal Code or under Section 19 of the Bill, wherein the maximum punishment is 10 years and two years respectively. This shows a gross violation of principles of penology, as well as that of the right to be treated equally before the law, thus making it a classic case of narrow legislative drafting.

4. Need for Protecting the Transgender from Sexual Violence

Statistics suggest that transgender persons are at a higher risk of facing poverty, stigma, and marginalisation and sexual assault. Within the LGBTQ community, transgender persons face the most disturbing rates of sexual violence. In a majority of the cases transgender persons face sexual violence at a very tender age. The 2015 US Transgender Survey revealed that almost half of the transgender people, in their lifetime, have been sexually abused or sexually assaulted. It must be noted that the reporting of such cases is low and that is why the statistics represent only a part of the bigger story. (National Center for Transgender Equality 2015) This indicates that the majority of transgender persons are living in the aftermath of trauma and the fear of possible repeat victimisation.

In India, the transgender community faces further social and economic alienation. Very few surveys and reporting of such cases are on record, and hence it is difficult to ascertain the gravity and seriousness of the sexual offences inflicted on them. As per a recent survey, four out of every ten transgender individuals in India face sexual abuse before turning 18. A study done by Swasti, a health resource centre, revealed that in 44 per cent of the cases, the violence carries on well past childhood. The study also states that those in the age-group of 11-15 years are most susceptible to sexual violence. Some 30 per cent of the respondents were living alone, owing to rejection from their families. In most cases of physical or sexual violence, the assailant was someone known to the transgender, either a partner, or for those employed as sex workers, a client. (The Quint 2017)

5. Rights of Transgender vis-à-vis Navtej Singh Johar Judgment

Navtej Singh Johar

is a landmark judgment for the transgender community as it reaffirms their right to choose their partner and have consensual sexual intercourse, which earlier was punishable under Section 377 of Indian Penal Code. The Apex Court held that Section 377 in its present form abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. The judgment takes into account the fact that sexual orientation of the LGBT community is an essential and innate facet of privacy.

CJI Dipak Misra, mentioning about trans-genders in his judgment, stated that

“Bigoted and homophobic attitudes dehumanise the transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realise that identity and sexual orientation cannot be silenced by oppression. Liberty, as the linchpin of our constitutional values, enables individuals to define and express their identity and individual identity has to be acknowledged and respected.”

The Supreme Court in this case reiterated the findings of the NALSA judgment and reaffirmed that right to live with dignity of every individual must be protected, as dignity is an inseparable facet of every individual. Justice Chandrachud, in his concurring opinion, held that

“Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution.”

The analysis of SC judgments in the NALSA and Navtej Singh Johar cases makes it clear that it is not the end but a start for the further evolution of the aforesaid rights of the LGBT community.

6. Conclusion

A society is often judged on how it treats and provides for the people who are at the lower footing than the rest of the communities. Transgender communities over a period of time have been left out of the mainstream society due to the apparent differences which have ultimately led to their present state in society. The precarious situation of the transgender community, which is manifested in the survey conducted by the NHRC, patently shows the reasons why progressive laws are needed.

The Courts are playing their part in identifying the poignant issues and getting rid of the same. The NALSA judgment, wherein the transgender was recognised as the third gender and the very recent Navtej Singh Johar judgment which read down Section 377 of the Indian Penal Code thus making consensual sexual intercourse between transgender persons, or persons belonging to the same gender legal, are prime examples of the same.

The introduction of the 2016 Bill is one such intended step by the legislature. However, owing to several glaring flaws which are present in its present form, the Bill fails to cater to the needs of the community; the problems highlighted above need to be fixed in order to ensure that the law, which comes into light, is a ray of hope for this community as a whole. It is to be seen as to what structural changes the government introduces in the Bill after the recent landmark judgment of the Supreme Court which legalised homosexuality.

List of Cases Cited

1. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

2. Navtej Singh Johar and Ors. v. Union of India, Writ Petition (Criminal) No. 76 of 2016.

References 

1. The Times of India (2018): “Left alone: Just 2 per cent of trans people stay with parents”, August 13, https://timesofindia.indiatimes.com/india/left-alone-just-2-of-trans-people-stay-with-parents/articleshow/65380226.cms

2. The Quint (2017): “On Transgender Day of Remembrance, the Screams That India Ignored”, November 20, https://www.thequint.com/neon/gender/transgender-day-of-remembrance-tracking-violence-against-lgbt-community-in-india

3. Economic and Political Weekly (2018): “Where the Transgender Bill Fails”, Vol. 53, Issue No. 35, September 1, 2018, https://www.epw.in/journal/2018/35/editorials/where-transgender-bill-fails.html

4. National Center for Transgender Equality (2015): “US Transgender Survey, 2015”, https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF

Endnote

• Transgender (sometimes shortened to “trans”) is an umbrella term used to describe a wide range of identities whose appearance and characteristics are perceived as gender atypical—including trans-sexual people, cross-dressers (sometimes referred to as “transvestites”), and people who identify as third gender. See Definition, United Nations Free and Equal, https://www.unfe.org/definitions/

The authors are Fifth year students, BA, LLB (Honours), Dr Ram Manohar Lohia National Law University, Lucknow.