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Discriminatory Penal Laws For Transgender Community

The contemporary society in which we live is purely rational and full of logic but while dealing with some issues of sensitive nature the rationality of the majority of the people turn into absurdness and among such issues one issue is transmisogyny. Even though transgender community has seen social and legal progress but still there are instances wherein the transgender people face pervasive discrimination in many areas of life and it's not just the society that discriminates them but the law also does not give them their equal share of rights and does not protect their interests well.

The inference about the discriminatory nature of the law towards the transgender community can be drawn as the provisions of the Indian Penal Code are discriminatory to the Transgender community as there is no room for protection of Transgender community victims under the rape laws of Indian Penal Code and against unnatural offences; the provisions of Indian Penal Code only protects the women community and such discrimination is arbitrary and is in violation of the Fundamental rights guaranteed under part III of the constitution. The Provisions of Indian Penal Code are not gender neutral and hence stand discriminatory to the Transgender community. First specifically, the Rape laws of Indian Penal Code give protection to the women community only and there is no room for the Transgender community victims. The current rape laws leave out a large swathe of Transgender victims who become the objects of social stigma.

There have been dozens of such transgender survivors who are also well documented in cases like Naz Foundation v. National Capital Territory of Delhi. As the rape law of Indian Penal Code stands, rape is something that only a man can do to a woman. It does not protect the Transgender community victims and has simultaneously failed to adequately protect Transgender community victims from being sexually assaulted. Secondly, the Indian Penal Code does not protect the Transgender community victims against unnatural offences provided under Section 377 of the IPC. The section penalizes unnatural offences and protects men, women and even an animal but at the same time excludes the Transgender community which is not justifiable. The point here is even animals are getting protection under this section but not the transgender people which implies that the transgender community is considered to be even inferior to animals which is absolutely against the basic rights.

Provisions of Indian Penal Code are amongst the pre-existing laws of India which recognize only the binary genders of male and female and lack provisions with regard to the protection from exploitation of transgender people whom the Court has also defined as ‘Third Gender' in the case of National Legal Services Authority v. Union of India but the judgment lacked implication on the part of legislature due to which a legislative vacuum has been created and due to the absence of legal measures to cater the needs of represented groups contradicted a number of rights including the right to a dignified life and equality before the law.

Article 14 is a right enjoyed by ‘any person' and so it applies equally to men, women and transgender people. Hence, transgender people are also entitled to equal legal protection of the law in all spheres. It is contended that discrimination is made by the provisions of the Indian Penal Code by excluding transgender and not providing equal treatment to all regardless of their gender identity. Such discrimination is arbitrary and is in contradiction with the Art. 14 of the Constitution of India which guarantees equal protection of laws to all and prohibition of discrimination on grounds of religion, race, caste, sex or place of birth respectively.

The phrase ‘equality to the law' signifies that there shall not be any arbitrary discrimination between one person or class of persons and another. All persons shall as human persons enjoy equality before the law. Secondly, equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without any discrimination. Equality is a pledge of protection or guarantee of equal protection of laws. Equality demands the individuals in society must be protected on an even platform. The constitution requires equal treatment of all people regardless of their gender identity and expression.

The National Coalition of Anti-Violence Projects (NCAVP) estimates that around half of transgender people experience sexual assault and rape at some point in their lifetime but the Indian Penal Code has failed to provide any adequate protection to them, the constitution provides for the fundamental right to equality and tolerates no discrimination. However, the third community of Transgenders is still ostracized. The constitution affirms equality in all spheres however the issue arises when it is far being not implemented specifically, the Rape laws and provision for unnatural offences under Indian Penal Code are in violation of Article 21 of the Constitution which includes right to liberty, right to sexual autonomy, right to live with dignity and right to privacy as well. The provisions are interpreted in such a way that protection is denied to gender non-conforming, binary women.

However, recently Delhi High Court ruled allowing transgender persons to file complaints against sexual harassment under section 354-A of the Indian Penal Code. Moreover, section 377 of the penal code extends only to men, women and animal, excluding transgender at the same time. Such discrimination against an individual on the basis of gender identity is deeply offensive to the dignity and self-worth of the individual.

Right to life is one of the basic human rights and not even the State has the authority to violate that right. The word life means a life of dignity and not just a mere existence or animal life. Right to life is not merely a physical right but it also includes within its ambit, right to personal liberty and the right to live with human dignity. There is no express provision for the relief of compensation to such aggrieved person, who complains of the violation of personal liberty.

The Transgender Persons (Protection Of Rights) bill infringes various fundamental rights of addressing the daily oppressions and indignities faced by the transgender community, this bill seeks to further institutionalize these very same violations. The bill views crime against transgender persons as less violent and only grants penalty of imprisonment from six months to two years, viewing that such crimes of sexual assault, harassment and abuse are of not serious nature, complicit with such a view that violence committed against them is not of serious nature. Transgender persons face transmisogynistic violence simply for being transgender and the bill is ignorant on the nature of transmisogyny. This erodes the concept of self-identification by inserting conflicting provisions that contradict one another.

Chapter III of the bill talks about the recognition of the identity of transgender persons. Section 4(2) appears to be consonance with NALSA judgement reading that a person who is recognized as transgender shall have right of self-perceived gender identity. But it contradicts with the concept of the same right of self-identification as the section then subjects this right to recognition, that the transgender community is qualified as such.

The Trafficking of Persons (Prevention, Protection And Rehabilitation) bill does not recognize the consenting adults working as sex workers as different from the trafficked persons. This bill by implicitly including sex workers within the definition of persons who are trafficked makes the lives of those who seek to make a livelihood from sex work much more precarious. The concept of the right to life and personal liberty guaranteed under Article 21 of the Constitution includes the right to live with dignity which in turn includes the right to livelihood. Deprivation of livelihood would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet such deprivation of life would not be in accordance with the procedure established by law if the right to livelihood is not regarded as a part of the right to life.

Despite the fact that the trafficking Act claims to be addressing other forms of slavery and servitude but the most vulnerable sections that will be adversely impacted by the bill are adult sex workers. The fundamental flaw with this bill is that it treats victims of human trafficking on par with adult persons in sex work.

Trafficking of persons into forced or coerced labour (including sexual exploitation) cannot be equated with sex work undertaken by consenting adults. This conflation could lead to misuse and over-broad application of the provisions in this bill. The choice of one's gender identity is outside the purview of scrutiny of the state and has to be respected. It entitles an individual with complete privacy and the right to life with dignity and freedom from state interference regardless of their sexual orientation and gender identity.

Lastly there are no provisions in these two bills to allow for reservation for trans persons, as mandated by the NALSA judgement, where the judgement clearly laid the onus on the government to recognize them as a socially and educationally backward class and take steps to pave way for all kinds of reservation in cases of admission in educational institutions and for public appointments. In entirety, these bills are a sheer farce in the face of the struggle for the rights of transgender persons.

It has systematically eroded their fundamental and legal rights, placing conditions on them to be recognized as worthy of having right to identify with the gender of their choice, and views them as inferior, dehumanizing their identities by not taking transmisogynistic violence against the transgender community seriously thus denying them the protection which they are entitled to under the constitution.

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