The transgender bill: An effective legislation or a mere eyewash?

SYNOPSIS:

The following article talks about the Transgender Act, 2019 and lists down various lacunas in the Act which several members of the LGBTQ community have strongly contended to. Many transgender persons have raised their voice against the said Act and have raised several arguments against the provisions of the Act. While the legislature has rolled out this legislation with a positive view, in reality it appears to be a mere eyewash and the basis and foundation of the Act appears to ill-informed. Many areas of the Act appear to be vague and arbitrary. While celebrating this month as the Pride Month, one must remember that the fight of the LGBTQ members goes way beyond just a month in calendar, and as a society it is our duty to uplift and empower each other!

INTRODUCTION:

The Indian Judiciary has often been regarded as one of the most progressive in the world. Two years back it abolished the archaic law which, essentially, decriminalized homosexuality by reading out Section 377 of the Indian Penal Code, 1860[1] and almost six years back, the Apex Court finally declared the transgender people as the “third gender”.[2] By rolling out such judgements, the Supreme Court, and in some cases even the High Court has ensured that the fundamental rights as enshrined under the Constitution of India is equally applicable to transgender people as it is to any other member of the society. The Courts have ensured that the LGBTQ community has the right to self-identification, may it be male, female or the third gender. When we as a society talk about gender equality, we need to remember that gender equality is not just limited to men and women, but extends to transgenders, gays, lesbians and everyone else existing on the wide spectrum of sexuality.

But while everyone has celebrated the judgements by the courts, a shadow of doubt was casted over these rights with advent of the Transgender Persons’ (Protection of Rights) Act, 2019 (hereinafter referred to as ‘the Act’). The Act, which swears to protect the rights of the trans community has been heavily criticized by the community itself, with many taking to social media and pleading the President of India, Ram Nath Kovind, to not sign it, thereby giving his assent to the bill, making it an Act. A law student from Bengaluru was quoted saying, “This Act exists to erase us. By having complete control over us from the way we identify to what socioeconomic opportunities we should get and condoning violence against us, it places us in a vulnerable position.”[3] Several MPs from the Opposition Party even tried referring the to a special committee for further analysis and scrutiny, but all in vain. The Transgender Persons’ (Protection of Rights) Act was tabled in the Rajya Sabha by minister of social justice and empowerment Thawar Chand Gehlot on 20th November 2018, and it finally became anAct in August of 2019.

The Act was criticized by the community and activists for several reasons, including the way it defined transgender persons as “neither wholly female nor wholly male.” The Act was sent to a parliamentary standing committee but the report it produced in July 2017 was rejected by the government.In December 2018, the government returned with the Act in Lok Sabha and passed it with 27 amendments that included a different definition of a transgender person.

We need to understand that the transgender community has a lot of hurdles to cross and they are discriminated on almost every step they take. Their struggle with the society starts at a very young age; childhood itself. Most are abandoned by their families, denied education and job opportunities. Landlords refuse to give them shelter, they are neglected by the society, which leads to them taking up menial jobs and in some cases, they end up begging, sex work, and dancing in weddings. This leads to them being associated with begging and sex work, without understand that the work done by them is not a choice or preference but an obligation so as to earn bread and survive. This is, sadly, the price they end up paying for being themselves. Hence, when the much-awaited Trans Act came to light, it led to disappointment as it acted as a mere eyewash. The transgender community has even termed the day that the Act was passed as ‘Gender Justice Murder Day’. But why has there been such vehement opposition and how can aAct which aims to protect a community receive backlash from the community which it swears to protect?

LACUNAS IN THE TRANS ACT, 2019:

1. The first opposition stems from the fact that the Act was passed in middle of the chaos of abrogation of Article 370, and without any debate. This shows that the legislature never aimed at proper discussion of the Act, thus showing diminished interest in the rights of the Transgender people.
2. As mentioned above, the previous definition of the “transgender” confused between the definition of transgender and intersex persons. This goes on to show that the Act might not be drafted by the right people as there are several technical aspects that need to be taken care of when talking about the rights of transgender and hence special experts should have been tasked with analyzing and scrutinizing the Act before haphazardly passing it. The Act was not though through and has been drafted without adequate knowledge.
3. The Act makes sexual abuse against a trans person a punishable offencebut fails to clearly define what constitutes sexual abuse. It must be noted that sexual abuse of a woman leads to imprisonment up to seven years which may extend to life imprisonment, but for a transgender person, imprisonment is limited to six month, which may further extend to two years. This is in direct violation with the principle of equality. This differentiation shows the community being treated differently than the rest, and it also shows the ignorance of legislature and society at large who have the mentality that the impact of sexual abuse on a transperson is not as impactful as on a cisgender woman.
4. Chapter IV talks about “welfare measures by government”. Section 8 states that the government shall take steps so as to formulate effective welfare measures and facilitate access of schemes to transgenders and etc., but the section fails to mention how exactly the government aims to achieve it. It is vague and arbitrary.
5. Further under Section 15, the Act talks about providing transgenders with facilities for sex-reassignment surgery and hormonal therapy, but again, it fails to mention the method of achieving the same.
6. The Act also fails to provide any reservation to the transgender community. Therefore, although the legislature talks about upliftment of the Trans people, it does nothing to achieve the same.
7. One of the most debated contention regarding the Act is its failure of implementing the ideology of “self-identification” as stated in the NALSA judgement.[4] The judgement clarifies that the transgenders can identity themselves as male or female. But the Act requires a transgender person to obtain certificate stating that they are transgender from the District Magistrate. Only after this, will they be able to change their gender to either Male or Female on government-issued identification cards. The issue here arises that in order to obtain the certificate by the District Magistrate, one has to show proof of sex-reassignment surgery, which,
   1. Is something that all transgenders do not want
   2. Is highly expensive and unaffordable.
   3. Fails to clarify that how the District Magistrate is supposed to examine such “documents”, and lastly,
   4. Such steps lead to violation of right to privacy, which is a fundamental right, as stated in the K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1].
8. The Act speaks volume of taking steps against discrimination, but in practicality, fails to implement any such provision. The Act does not have any provisions to apprehend those who discriminate against, bully, or harass transgender people at educational institutes, workplaces or anywhere else.
9. The transgenders are not given any marriage rights, adoption rights or pension. These are a few basic life practices that every human being is entitled to, but the Act fails to address these.
10. The most visibly and probably the biggest lacuna is that the Act has been drafted for the transgender community but without their consultation. Technically, they have had no say in the bill, and which is why the Act has several lacunas.

CONCLUSION:

The Transgender community is a vulnerable section of society, more often than not, marginalized. Other than facing social stigma and fighting to survive every day, Acts such as these further toughen their fight. The sad reality is that even though the government has taken a positive step in recognizing the rights of transgenders, they have failed miserably in implementing those rights is reality. Thus, the grim reality is that the situation following the implementation of the Act is very similar to the situation prior to this Act. The most important point that needs to be understood by society as the transgender community is often related to sex work and begging. But how can we expect them to uplift themselves without giving them the proper channels to do so? Hence reservation for the transgenders is something that is worth consideration. Further, we must apply the principle of equity rather than equality so as to ensure that they are treated fair and impartially. It is our duty as a society to uplift each other, at all given times, and this includes supporting the LGBTQ community not just during the pride month, but beyond that!\

• [1] Navtej Singh Johar v. Union of India [W. P. (Crl.) No. 76 of 2016]
• [2] NALSA v. Union of India [AIR 2014 SC 1863]
• [3] https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-rights
• [4] NALSA v. Union of India [AIR 2014 SC 1863]