Updated: Aug 11, 2020
Equality before law on of the foundational principles upon which our society and the legal system at large stands upon. It essentially means all human beings are equal in the eyes of law however this intrinsically basic right is not extended to a significant portion of the population; transgenders or the third gender by virtues of the current Transgender (Protection of Rights) Act 2019. For as long as humans are treated unequally to other humans on the basis of gender justice and humanity will never soar.
In a culture which has celebrated transgender in the past with illustrations like the sculptures of Khajuraho temples and even the beloved Maharashtra had Shikhandi who is born female but identifies as male and eventually marries a woman, its chagrined to see such a pathetic set of law for the community in the present scenario.
Transgender (Protection of Rights) Act 2019 was introduced after years of struggle by the community and its activists. Despite all the efforts the bill pales in comparison to real-world requirements and now the bill has been passed by the houses of the Parliament along with the assent of the President to become formalised law in the Republic of India.
Issues for Consideration
Right to Self Determination – As per the current Act, before an individual can “officially’’ be recognised as a transgender, they have to file an application with the District Magistrate’s Office for an official certificate of recognition, after which they have to be examined by a District Screening Committee, to decide whether or not they are eligible to be “recognised’ as transgender. This clause is not only archaic but borders on blasphemy as it not only violates the right to bodily privacy by making the DM examine individual but its also directly in violation of the principles but forward in the NALSA v. Union of India (writ petition) judgment a few years back.
The judgment “that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS). In fact, NALSA had clearly directed that “any insistence for SRS for declaring one’s gender is immoral and illegal.”
Punishments - The Transgender (Protection of Rights) Act of 2019 does put forward the same punishments for crimes against transgenders as they do against individuals of binary gender. When it comes to sexual offences
“the Act fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognizes rape in strict terms of men and women as perpetrator and victim, respectively. While the Act makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.”
The problem permeates even to civil law as most statutory laws only covers binary gender, they avail the use of pronouns that are male and female. Provisions and clauses in the Indian Penal Code (IPC), Factories Act, Hindu Succession Act, etc., only considers two genders. If these laws are to apply to the “third-gender” as well, they must shift from the monotonous use of binary pronouns and widen to a more inclusive spectrum.
Non-Consultation of Transgenders – A major concern attached with the Transgender Act of 2019 is the fact that no members of the Transgender community were involved in the drafting of the act in question, it’s an attempt by the cis community to shackle Transgender into their bounds of understanding. The Ministry of Social Justice and Welfare ignore all the points put forward by the standing committee made of this exact purpose and to make matter worse no Transgender members of the Parliament were involved in the discussion of the bill.
Economics and Livelihood – While addressing the economics and livelihood of transgender, the bill criminalises begging which is largely prevalent among the community and is considered the age-old traditions and socio-cultural context of begging by the “hijras”, “kinner”, “aravani” and “jogta”. Even though it prohibits begging, the act in question does not create new livelihood alternatives but only vaguely strengthens them from discrimination at work.
The Transgender (Protection of Rights) Act of 2019 is at best a hasty and incompetent legislation which just reaffirmed an ignorant cis based understanding of the Transgender identity. The Act not only goes against basic human rights, principle of natural justice but directly opposes prior judicial precedents in the form of the NALSA judgment. If the government truly want a piece of legislation that fits the bill the first and foremost step has to be the involvement of the transgender community and the other stakeholder of the bill in question.