Author: Bhargavi Ashok Nimje, II year of B.A., LL.B. from Modern Law College, Pune
In a country like India where millions of people live, for those people law has to be made in such a way that no one's interest is left behind whether it is for rich, poor, industrialist, farmers or the transgenders, ‘Transgender’ the word now known almost to everyone, has attracted attention in 2014 in National Legal Services Authority vs Union Of India. We could see that Transgender who are capable, talented and confident are ignored just because of their identity. If their identity is revealed then many times they are dismissed from the job. Some don’t have shelters to live because they can’t pay the rent as they are jobless and through begging they could not earn enough to have all necessities. I think a person should not be criticised for one’s natural orientation. It’s not their fault. So why do the people dominate them? We need to think.
The issues of transgender have been in existence for a long time. But we could say transgenders won their first battle in 2014 when Supreme Court recognised transgender as the third gender and gave them the rights to [i] self-identification as male, the female or third gender in NALSA vs. UOI
Since 2015, Transgender person protection of rights bill has been introduced in Lok Sabha many times and each time clause has been kept changing. In 2019 The Transgender Persons (Protection Of Rights) Bill, 2019 has been passed with the intension of the welfare of transgender. But the trans community is not happy with some of the clauses of the act. Earlier as well when the bill was tabled, it received criticism from the trans community. And so some of the clauses were changed. Some of the conflicting clauses were the definition of transgender itself but after criticism, the definition was changed as A person whose gender does not match with the gender assigned to them at birth.
Trans community still claims that the definition is not correct as ‘transgender’ is an umbrella term, it contains entire[ii]LGBTQ+,[iii] intersex,[iv] traditional identities like hijras, kinnars etc. Intersex and transgender may identify as same but they are not the same. Intersex can be considered under [v]cisgender category. Trans community is claiming that the government cannot put all this under the category of transgender.
Another modified clause was that of begging and sex work. As we know, begging and sex work which is considered as the source of income for the transgender community was criminalised, but after criticism from the trans community, these workers were decriminalized.
No doubt, this recent development will give transgender space to build the life they desire for themselves. This bill has the intention of upbringing the trans community. Transgender would now get facilities in education, employment, health, public services, no prohibition on movement, right to occupy space, to live on rent, occupation of their choice, the formation of National Council For Transgender Persons, the council will advise the central government as well as monitor the impact of policies, legislation and projects concerning transgender people. It will also redress the grievances of transgender people. Forced labour, denial of use of public places, any kind of abuse whether physical, verbal or emotional against transgender is now punishable.
But even after bringing changes in the clause, I believe there are some clauses which are controversial and need to be changed. The act is silent about the reservation policies in education, employment. As it has been mentioned in our Constitution that the group whose interest is not represented, for them reservations should be granted but the act is silent about reservation policies.
“Rights of transgender to live with their family without exclusion,” this clause says that a trans child under the age of 18 will have to compulsorily live with their family, they can’t leave their family. If the family is unable to take care of the trans child or humiliate the child, the trans child has to be placed in rehabilitation centres.
This clause was added as it was found that as soon as the trans community comes to know about the trans child in any family, they would forcefully take away the child from the family. But the sad truth is that we could find some instances where the family itself dominates, humiliates their trans child. Now, this is a point of debate as the trans community is saying the child is required to stay only with the family or else needs to go to the rehabilitation centre and if the trans child wants to live independently, they couldn’t. I think a child under 18 doesn’t have enough knowledge of the world and by living alone they may start getting involved in wrong things as they are already disturbed. By residing in the rehabilitation centre where people under the age of 18 will reside, this centre would help them overcome their disturbed mind. it would also mean inculcating values as well which may not be possible by living independently.
As The Transgender Persons (Protection of Rights) Bill, 2019 prescribes punishment for sexual assault as 2 years imprisonment committed against transgender whereas in IPC for cisgender 7years punishment is to be served by the convict. Any punishment of fewer than 3 years is bailable, so the convict doesn’t even need to serve the punishment in case of sexual assault against transgender. IPC provides the punishment for male and female, there is no mention of transgender in the IPC, if transgender is to be treated at par with cisgender, the word transgender has to be added in IPC. Sexual assault and rape are to two different offences in IPC and for transgender, there is no clause against rape, punishment has been mentioned only for sexual assault.
The most conflicted clause in The Transgender Persons (Protection of Rights) Bill, 2019 is the self-identification clause which conflicts with the NALSA judgement. Trans community claims that intersex and transgender are different and by putting intersex under transgender, they are taking away their choice of identity as male, female or transgender. By putting intersex under transgender, the government is taking their right to self-identification which is violative of NALSA judgement. As we know NALSA judgement said that transgender has the right to self-identification which means they could decide what they are and don’t need to get any certificate for the same from anyone. But now as per Transgender Persons (Protection of Rights) Bill, 2019 states that a transgender has to get the certificate of identity by making an application to District magistrate through which holder (trans person) would get gender identity certificate, showing their gender as ‘transgender’ and in this holder has to undergo humiliation by cisgender people while applying for the certificate. If a transgender considers oneself as male or female they can’t get the certificate as Male or Female directly to get that certificate they would have to undergo sex reassignment surgery. After the surgery transgender can apply for the revised certificate. If the revised certificate is refused then stating the reason is not required. Also, there’s no guarantee of a successful surgery, as India at the present stage doesn't have well-equipped technique and doctors are not experts in this surgery. So it would mean simply practising on a transgender person.
And if the surgery fails the life of the trans child will be destroyed. The surgery clause is mandatory for transgender if they want the certificate of male or female. The transgender doesn’t have enough money for the surgery. But why do one need a certificate of identity If cisgender isn’t required to get that certificate, then why do transgender require? It has been said that other people would misuse the facility provided for transgender and hence the certificate is required. But if the transgender is to be treated at par with other people, it means they would get all the same facilities as that of the cisgender community and so the question of misuse does not arise.
Even after the introduction of favourable clauses for transgender, they face humiliation by cisgender community One needs to put oneself in another’s shoes to understand their problem. Cisgender ignore transgender as if they aren’t humans. In workplaces, transgender is ignored, dominated. But after all, in workplaces, their sexual orientation doesn’t matter but what matters is their professional work. If a person is good enough to reach a high level in their career so definitely their natural orientation would not matter and it should not be a problem as well. If transgender is to be treated at par with others. Indian laws have to be modified and need to include transgender. A favourable environment should be maintained so that transgender could grow themselves. Nowadays even CV /resume does not demand specifications of the gender. And this rule should be applied to almost every sector.
[i] The act of identifying ourselves what we are( what kind of person either male, female or third gender)
[ii] Lesbians, Gay, Bisexual, Transgender, Queer
[iii] Person is born with reproductive Or sexual anatomy that doesn’t fit the boxes of male or female
[iv] That developed over time concerning sexual orientation
[v] Denoting or relating to a person whose sense of personal identity and gender corresponds with their birth sex.