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A Flawed Voice For The Marginalized: Analysis Of The Transgender Persons (Protection Of Rights) Act, 2019

The transgender community is one of the most marginalized, discriminated against, and vulnerable communities in India and across the world. In April 2014, transgender was declared the third gender by the Supreme Court of India, and bills regarding protecting their rights were formulated, and subsequently.

The Transgender Persons (Protection of Rights) Act, 2019 was passed. Although this act protects transgender people against offenses and provides penalties in case of violation of their rights, the act is still a flawed attempt at elevating the status of transgender people in India.

For instance, the definition of a transgender person is non -inclusive, and other facets in the act are against the fundamental rights as enshrined in the Indian constitution. This paper aims to assess the status of transgender people in today's society and to bring forward the lacunae in the Transgender Persons (Protection of Rights) Act, 2019 [1]act, , and provide recommendations to improve the status quo.

Introduction
Description of the theme and its relevance
Transgender people have existed in India throughout history and have been one of the most marginalized communities merely due to their gender identity. They are often abused and ostracized by their own family members and resort to sex work to survive, which often puts them at risk of getting HIV and aids.

The rate of sexual and physical abuse they face is alarming. They also find difficulty finding jobs and often resort to begging and are discriminated against in receiving healthcare. As a result, they are often left vulnerable to low quality of life, isolated, and riddled with transphobia, prejudice, and violence.

There is thus a need for protecting the community and providing a redressal mechanism in case of violation of their rights. The Transgender Persons (Protection of Rights) Act, 2019 aims to prohibit discrimination against the community and contribute towards their welfare.

In 2014, the Supreme Court in the landmark judgement of NALSA v. Union of India[2], recognized the rights of transgender people in India and recommended several measures such as reservation in educational institutions and public employment and the Court stated that the right to express one's gender is guarded by Article 21.

Over the years, landmark judgements such as Justice K.S. Puttaswamy (Retd.) and anr v. Union of India and ors 6 (2017) [3]and Navtej Singh Johar v. Union of India (2018) [4] have contributed towards the welfare of the LGBT community. In addition, the Supreme Court of India upheld the judicial mandate from 2014. However, other bills, such as the Rights of Transgender Persons Bill of 2014, were introduced prior to the implementation of this Act. During the time that this Bill was being debated, the 2016 Bill was introduced.

After then, the Transgender Persons (Protection of Rights) Bill, 2018 lapsed, and on July 19, 2019, the Minister of Social Justice and Empowerment introduced the 2019 Act in the Lok Sabha, citing the expiry of the 2018 Bill.

Statement Of Problems:
  1. Societal exclusion of Transgender individuals

    The transgender people are often vulnerable and ostracized by their own family members and have to resort to sex work as a means of living thus facing a lot of stigma and isolation. They also face discrimination in receiving healthcare and are abused and sexually exploited. The shortcomings of the Transgender Persons (Protection Of Rights) Act, 2019 can be blatantly understood by understanding the social conditions under which the transgender community lives.
     
  2. Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019

    The act formulated for the welfare of the transgender persons is riddled with provisions that are violative of the NALSA judgement[5] and the fundamental rights enshrined under the Indian constitution.
    1. Definitions
      The definitions under the act are non-inclusive and inadequate with respect to the definitions such as transgender persons, inclusive education which do not fully capture the essence of the words.
       
    2. Section 3-17 of the Act
      These sections impose conditions on the right of transgender individuals with respect to their gender identity and deem it necessary to have a 'Sex reassignment surgery' in order to get a change in gender certificate which violates the provisions of article 21.
       
    3. The absence of certain provisions
      There is also non-inclusivity of provisions such as reservation in the educational and public employment institutions, which was stated in the NALSA judgement, thus making the act inadequate.
       
    4. Offences and penalties
      The offences and penalties including sexual offences against the Transgender community has minimal punishment from 6 months to 2 years . In section 375 of IPC, the minimum punishment for rape is 7 years and thus, such a provision of the act violates the Right to Equality and deems the same crimes against transgender community to be less grave in nature, even though they are very vulnerable to sexual abuse.
       
  3. Non inclusivity of Transgender persons during the formulation of the Act

    The passing of the 2019 act in question was met with criticism by the transgender persons and activists as they deemed the act to be regressive and an insignificant step towards the welfare of the third gender individuals. One of the major reasons towards this inadequacy was the lack of consultancy of the transgender people in making the law.

    This research paper tries to explore the above three topics in order to understand the problems with the Transgender Persons (Protection Of Rights) Act, 2019 and provide recommendations for betterment of the transgender community.
     

Literature Review
The present literature review is based on bare acts, journal articles deemed to be relevant by the researcher for the purpose of identifying the shortcomings and lacunae in the Transgender Persons (Protection Of Rights) Act, 2019 with respect to the research problems and objectives mentioned.
  1. Societal exclusion of Transgender individuals

    According to the author of Socio–Cultural Exclusion and Inclusion of Trans-genders in India[6], even in the 21st century, there seems to be limited understanding among the masses regarding the gender identity and sex assigned at birth. According to the 2011 Census, India has 4.88 lakh transgender people and over 55,000 children under the age of six who are transgender[7]

    Owing to such low population of the transgender individuals, they face severe discrimination, marginalisation and abuse, often at the hands of their own family members and this has led to low income and educational levels becoming a fundamental part of the transgender community. This living condition often forces them into prostitution and they are at a much greater threat of getting HIV and AIDS or resorting to begging.

    Transgender individuals face unique barriers while trying to access health care services and are deliberately misgendered as 'males' and admitted in male wards (in case of trans women). They face humiliation and are also denied medical services. Such discrimination could be on the grounds of transgender as well as sex work status.

    Thus, in order to safeguard the Transgender individuals, a provision that would be inclusive not only of transgender rights, but those of sex workers, as the both are closely related. The rights given to transgender individuals should be enforceable and since they are vulnerable to sexual violence, stringent laws against the same should be formulated.
     
  2. Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019

    Analyzing the shortcomings of the act after understanding some vital needs of the transgender communities using relevant literature is the aim of this section The author of The absence of certain provisions. Legislative Review of "The Transgender Persons (Protection of Rights) Act 2019[8] has exhaustively analyzed the provisions of the act and brought forward the issues within the act.
    1. Definitions:
      1. Section 2k of the act defines a transgender person but is a non – inclusive definition as it includes only 4 communities namely: Kinner, Hijra, Aravani and Jogta. However, it does not include gender non-conforming individuals and people from other communities such as Nupa Maanba from Manipur, Thirunangais from Tamil Nadu anong others. Thus, rather than Transgender being an umbrella term, it has a restrictive definition.

        The term also includes people of intersex variation which in itself is a different concept. Thus, it seems that the act is conflating sex and gender, and in the process is diminishing the capacity to understand the needs of the transgender community by intertwining the concept of sex and gender.
         
      2. Author is also of the opinion that the term "inclusive education" as under section 2 is incomplete as it does not address the issue of sensitization of all students towards gender non -conforming individuals.
         
    2. Sections 3-17

      Section 4 of the act is a progressive step as it recognizes the r right to a self – perceived identify themselves of all transgender individuals. However, this section is watered down by the subsequent sections, from section 4 (2) through to section 7, which apply conditions on this recognition either through the act or by the requirement of ' Sex Reassignment Surgery' in order to receive a revised certificate of the gender, thus enforcing the need for surgery in order to accept someone's gender identity and posing conditions on the self-expression of gender as ruled in the NALSA judgement.

      This screening process is constitutionally flawed as it goes against the principles enshrined under article 21 of the Indian constitution of freedom of expressing gender identity. In NALSA, judgement, the Supreme Court rejected pathological or medical or pathological standard to determine an individual's gender, and recognized that "transgender" constituted a standalone gender for individuals. Thus, this provision goes against the judgement.

      Section 15 describes the healthcare services that the competent government must provide for transgender people. Separate centers for the transgender community, under clause (a) however, will further stigmatize and isolate the community. According to the author, this provision ironically does not prevent discrimination, but rather codifies it.
       
    3. The absence of certain provisions
      The Central and State Governments were ordered in the National Legal Services Authority v. Union of India 2014 case to offer transgender community reservations in educational institutions and public employment and regard them as socially and economically backward classes. However, there is no mention of the reservation in the act.
       
    4. Offences and penalties are inadequate
      Punishment for sexual abuse against transgender not adequate. Under section 375 of IPC, the minimum punishment for rape is 7 years. However, in this act, only 6 months minimum and maximum for 2 years with fine is the punishment for all crimes, including sexual offences.

      This violates article 14 of the constitution even though transgender community is very vulnerable to such crimes. There is thus discrimination in even giving justice to the Transgender community and many rights mentioned in the act have no legal remedies and thus can be said to be rights that are not enforceable.

     
  3. Non-Inclusivity Of Transgender Persons In The Formation Of The Act

    The passing of the Transgender Persons (Protection of Rights) Act, 2019 was met with a lot of criticism by the members of the Parliament as well as members of the LGBT+ community and transgender activists who considered the bill to be an insignificant step.

    The reason for this failure could be attributed to the lack of proper consultation of the transgender community and other activists before the formulation of the act.
    The bill goes against the right to dignity and bodily autonomy of trans people, '-says Semmalar , a member of Sampoorna Working Group, one organisation fighting for intersex and transgender rights.

    Ajita Banerjie, another such Delhi-based individual who researches in gender and sexuality said 'You're basically putting a lot of burden on trans people and adding a lot of bureaucratic layers and red-tapeism.

    He also said that the provisions fail to address issues such as adoption and marriage.[9]
    Thus, it is clear that the act received a lot of criticism and its lack of consultation of the marginalised community deemed the law to be a rather flawed attempt, which still stands considers the gender binary to be the norm and transgender individuals to be an exception.

Conclusion And Recommendations
  1. Societal exclusion of Transgender individuals
    1. The first topic for literature review which deals with the society and the status of transgender individuals within it, informs us that the transgender individuals are vulnerable and are often targeted by their own families and have to live in isolation. Owing to such societal conditions, they are often left poor and have to resort to prostitution. They also face prejudice in the form of deliberate misgendering and refusal of treatment at the hands of healthcare professionals.
       
    2. Based on the doctrinal research, the researcher believes that in order for the societal conditions to better, there needs to be compulsory gender sensitization so that the misunderstanding and lack of awareness which gives rise to prejudice and transphobia among the masses can be overcome. Simultaneously, the prejudice against sex workers needs to be tackled. Providing laws that aim for the welfare of sex workers and transgender individuals and the entirety of the LGBT community such as the Navtej Singh Johar[10] judgement which decimalized homosexuality will help the transgender individuals gain legal rights and be accepted within the society[11].
       
  2. Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019
    The Transgender Persons (Protection of Rights) Act 2019 is a flawed attempt at prohibiting discrimination against the transgender individuals. As the author of points out several facets of problems which goes against the NALSA judgement and the principles of equality and privacy as under the fundamental rights of the Indian constitution.

    The author points out several amendments to the act that would enhance its significance and efficiency including reservation for the third gender as given as a guideline in the NALSA judgement. As mentioned by the author, the researcher also believes that increasing the scope of the term transgenders and including other provisions of adoption, same -sex marriage and defining the terms such as abuse and increasing the penalties of crimes , especially that of rape to the same as in section 375 as the current provisions are against the Right to Equality as under article 14 of the Indian constitution.
     
  3. Non-Inclusion Of Transgender Persons In The Formation Of The Act

    Finally, the researcher believes that the non -inclusivity of the transgender community in formulating the 2018 Bill is one of the major reasons why the act thus formulated is deeply flawed and built upon the norms of heterosexuality even though it is made for the welfare of the transgender community. For an act to help elevate the status of the third gender individuals, consulting them during formulation is of utmost importance as it would help understand their experiences and help formulate an act more fit for the welfare of the transgender individuals.
     
  4. To briefly summarise, the author of this research attempts to analyse the Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019 by firstly examining literature on the conditions of transgender individuals in the country and subsequently attempts to understand how these shortcomings were received by the transgender individuals who protested against the act and lastly attempts to recommend some changes in order to help transform the status quo into something more progressive.

Research Objectives
  1. To determine the societal conditions with respect to the status of the transgender community in the backdrop of which the act was passed.
  2. To critically examine the Transgender persons (Protection of Rights) Act ,2019 and bring forward its limitations.
  3. To examine why the Transgender persons (Protection of Rights) Act, 2019 was met with criticism and protest with respect to non -inclusivity of transgender individuals in its formulation.
  4. To provide recommendations in the status quo so as to elevate the status of the Transgender community with respect to their rights in Transgender persons (Protection of Rights) Act, 2019 and through adequate legislation.

Research Questions:
  1. What is the status of transgender people in the country in the background of the Transgender persons (Protection of Rights) Act, 2019?
  2. Is the Transgender persons (Protection of Rights) Act ,2019 in line with the National Legal Services Authority (NALSA) vs. Union of India judgement?
  3. Are the provisions of the Transgender persons (Protection of Rights) Act ,2019 adequate and effective with respect to preventing discrimination against the Transgender community?
  4. Why was the passing of Transgender persons (Protection of Rights) Act, 2019 met with protest and criticism?
  5. What loopholes or inadequacies persist within the act and how can they be resolved?

Research Hypotheses:
  • H1: Several shortcomings and lacunae in the Transgender Persons (Protection of Rights) Act, 2019, deem the act as perils for exercising of equal rights by the transgender community.
  • H2: Consulting transgender community to form a legislation would lead to a better and more inclusive legislation.
  • H3: Granting rights to sex workers is also necessary in order to ensure welfare of the transgender community.

Research Methodology:
  1. The study was conducted using Doctrinal research as well as empirical research and the fromer involved the study of relevant information from both Primary and Secondary sources including bare acts , journal articles , reports available on Manupatra, Shodhganga , Google Scholar which are accessible by the way of Online Research.

    The preliminary research was extended by landmark judgements which gave insight into the recognition of the rights of the transgender individuals, providing a source by which the provisions of the act can be compared to, to understand whether it is in sync with the fundamental rights or not. The later was based on the observation of interviews of the people belonging to the transgender community in which they explain their viewpoint regarding the 2019 act.
     
  2. Source of Data: Primary Source (bare acts) and Secondary sources (journal articles, observing interviews)
  3. Method of Citation: The Uniform System of Citation (Bluebook) 19th Edition.
  4. Time and Place of Data Collections: Online (December 2021).
End-Notes:
  1. The Transgender Persons (Protection of Rights) Act, 2019
  2. AIR 2014 SC 1863
  3. AIR 2017 SC 4161
  4. AIR 2018 SC 4321
  5. Supra 1
  6. Socio–Cultural Exclusion and Inclusion of Trans-genders in India Konduru Delliswararao1* and Chongneikim Hangsing(2018) Int. J. Soc. Sc. Manage. Vol. 5, Issue-1: 10-17
  7. Challenges for Transgenderinclusive Sanitation in India https://www.researchgate.net/profile/Durba-Biswas-2/publication/332874862_Challenges_for_Transgender-_inclusive_Sanitation_in_India/links/5ccfd8cca6fdccc9dd901c23/Challenges-for-Transgender-inclusive-Sanitation-in-India.pdf
  8. Legislativ Legislative Review of "The Transgender r Persons (Protection of otection of Rights) Act, 2019" Aastha Khanna Divesh Sawhney https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1978&context=hrbrief
  9. India Just Passed A Trans Rights Bill. Why Are Trans Activists Protesting It? Sushmita Pathak
    December 4, 201911:42 AM ET https://www.npr.org/sections/goatsandsoda/2019/12/04/784398783/india-just-passed-a-trans-rights-bill-why-are-trans-activists-protesting-it
  10. Supra 3
  11. A Critical and Comparative Analysis of Constitutional Recognition and Protection of Human Rights of
    Transgender People in India, Bachchhav, Sunita Tryamakrao, Savitribai Phule Pune University
    http://hdl.handle.net/10603/340343
Written By:
  1. Bachchhav,
  2. Sunita Tryamakrao

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