(This note was prepared by Yatin Gaur, Radhika Ghosh, Shrishti Jain, Sanskruti Jain, and Arjit Mishra; all second year students and PCLS members. The meeting was held on 16 July 2020 over Skype.) When the Apex Court of India recognized the transgender community as the third gender in NALSA v Union of India and directed the central government and the state governments to take steps to protect the rights of the transgender community, there arose a ray of hope within the transgender community. But, this hope got a setback when the Government of India passed the Transgenders Persons (Protection of Rights) Act, 2019 because it failed to provide justice to the transgender community. On this very pertinent issue, we had a discussion at PCLS in which we discussed and debated on every disputed aspect of the Act and the following is the detailed report on the same. Right to life and personal liberty
One of the most important issues raised against the Transgender Persons (Protection of Rights) Act, 2019 is that it violates right to gender identity and right to privacy guaranteed under Article 21 of the Indian constitution,. In NALSA v. Union of India, the Supreme Court of India held that transgender people have the same constitutional rights as enjoyed by other citizens of India but certain contentions could be raised against some provisions of the Act asserting those as violative of Article 21. Section 4 of the Act, which stipulates that every transgender has the right to be recognized as such, has been considered the most progressive step taken in ensuring the rights to a member of the transgender community but the 'certificate of identity' mentioned in sections 5 and 6 of the Act has raised serious questions on the fundamental rights of them. It is observed that sections violate the intrinsic right to gender identity, recognized in the NALSA v. Union of India wherein the Court held that gender is one of the most important forms to characterize a person's identity and it shouldn't be subjected to confirmation by any authority. To quote Justice D.Y. Chandrachud from K.S. Puttaswamy v. Union of India, "sexual orientation is an essential component of identity" and that "equal protection demands protection of the identity of every individual without discrimination." Everyone enjoys an inherent right to choose the gender and sexual orientation and any such requisite of 'certificate of identity' from any authority blatantly violates Article 21 of the Indian constitution. It is further observed that the above-mentioned sections violate the right to privacy of the transgender community as it intrudes into their bodily autonomy which forms an intrinsic part of their privacy. Justice Nariman said that the right to make intimate choices, an important facet of the right to privacy, also incorporates the right to choose sexual identity which is subjected to no interference by anyone. The Act violates the right to privacy of the transgender community as it obligates them to get a certificate of identity from the District Magistrate which unreasonably intervenes in their exclusive right to have any sexual identity of their own choice. Fortunately, the Central Government has removed the necessity of a certificate from a psychologist for any transgender person to get a certificate of identity from district magistrate in its notification dated 13th July 2020 but issue of getting a certificate of identity still exists which stands illegitimate under Article 21 of the Indian constitution and it is hoped that the government would take regard of the same and ensure complete justice to the transgender community. Right to Equality Challenge Section 4(2) allows the self-perception of gender identity. But it mandates that each person would have to be recognized as 'transgender' based on a certificate of identity issued by a district magistrate. It means that a transgender can only acknowledge the identity after the validation of the District magistrate. But in NALSA judgment it was pronounced that gender identity is something deeply internal and an individual's experience. Gender is something you choose. The Act was introduced to provide equal status to the Transgender Community, but instead, it lowers down its pedestal. Section 4 to 7 deals with the requirement of a certificate of identity. It is grossly unfair as a cis-gender individual is not asked to certify their identity. This Act labels Transgender community as an abberation. The reasoning of the Government to provide a certificate was to confer welfare measures to the community, however, the Act is blatantly silent on welfare schemes. The rules state that a District magistrate can only issue a certificate of identity if an applicant was residing in an area for at least one year. But it may be argued that the transgender community faces many problems like unemployment, homelessness, etc. Thus it's difficult for them to reside in an area for a longer period. Moreover, other licenses or certificates do not require one- year residency. This provision and rules belittle the violence suffered by the transgender community. It violates the very purpose of Article 14 of the Constitution i.e., right to equal protection of the law. Non Discrimination challenge Initially, when the Transgender Persons (Protection of Rights) Bill, 2019 was passed in December last year, it attracted severe criticism on the grounds of being discriminatory towards transgender people. However, now reflecting upon the latest draft rules dated 13th July 2020 published by the Ministry of Social Justice and Empowerment, it can be certainly admitted that the policymakers have made a sincere effort to address the objections against the bill which now makes it look much more inclusive and progressive. The two major shortcomings of the bill pointed out by the critiques earlier, included i) Lack of any enforcement Mechanism for protection of Rights ii) Discrimination in the level of protection based on sexual identity Concerning the first criticism, it was rightly argued that although on a superficial reading the Actlooks promising enough to protect the Transgender people from exploitation, discrimination, physical, verbal, emotional, or sexual abuse by penalizing such acts under Section 18 of the Act. However, what was extremely disappointing about the bill was the fact that the bill failed to address or provide any strong enforcement mechanism to confer the promised protection to the Trans community. Therefore, leading to a dichotomous situation of right without a remedy. But it is praiseworthy to point out that now the latest draft rules imposes the duty on the respective State government to establish Transgender Protection Cell and Grievance Redressal cell to ensure timely registration, investigation, and redressal of such complaints. It now also seeks to address the discrimination faced by the Trans people in the matters of employment as mentioned under Section 9 and Section 3(b) of the Act, imposing a duty on every establishment to publish an Equal opportunity Policy for Transgender people. However, unfortunately, the government has still not been successful in addressing the second criticism that is Section 18 according to which the maximum level of punishment in the case of sexual abuse against the transgender person can range anywhere from 6 months to 2 years which discriminates against the Trans people in comparison to the cis-gendered people as a similar offense against a women invites punishment of 7 years to lifetime, and in some cases, the death penalty as well under Section 375 of IPC. This raises an important question that why Transgender people are conferred lower levels of protection than cis-gendered people when practically the constitution makes no distinction between the two. Need for affirmative action Workplace-related research on (LGBT) individuals reveals that Trans workers are the most marginalized and are excluded from gainful employment, with discrimination occurring at all phases of the employment process. The Transgender Persons (Protection of Rights) Rules, 2019 was initiated to curb the discrimination and inhuman behavior faced by this community and to bring them at par with the rest of the community, at the same time keeping in line with the historic judgment of NALSA vs. UOI. But while bringing this draft, many issues brought about in the NALSA judgment were sidelined. In the judgment of Ram Singh v UOI, the Supreme Court considered who could be termed as a "backward class" for the policies of affirmative action, and held that the NALSA case was "an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness". The NALSA judgment propounded that trans people comes within "socially and educationally backward classes" and hence must be assured of the benefits under the SEBC category, including reservations in all educational and public appointments. The government is obligated to provide affirmative action as once it has been settled that TG is not treated equally, Article 16(4) needs to be applied to them, as article 16(4) is a facet of equality clause, rendered to remove inequality. The Act specifically provides for inclusion and non-discrimination through section 3, 9, and 13. But it overlooks a major focal point that these provisions are meaningless if the TG can't access such institutions at all. As equal citizens of this country, they also have an equal right to achieve their full potential as human beings. And for this, they have the right not only to proper schooling, social assimilation, access to public spaces but employment opportunities as well, which could only be provided by giving them reservation in public spheres. By omitting to include this special provision in this Act, it is all set to reverse the acknowledgment that trans people finally got through NALSA judgment. The Positive Obligations Challenge The Act requires the Rules to provide the welfare measures for the transgender persons. Now, the Draft Rules delegate the government departments to monitor the welfare schemes that are made. The normative gap occurs when these welfare schemes are not detailed out and the transgender persons are hence being devoid of their fundamental rights in the process. The benefits that the Act claims to recognize are not sufficient in providing the fundamental rights to transgender persons. This originates from the time it made someone else officially liable to recognize and certify them as transgender persons but themselves. Section 15 talks about the insurance scheme, however, the scheme is not enough to call for a right to health. Since there is a lack of enforcement mechanisms, no legal remedies could be drawn. The government must also provide with the time limits that must be taken to implement the measure, otherwise fetching welfare will remain a dream for many. Including transgender persons in the marriage rights, adoption rights, property rights, social security, and pension schemes is necessary along with reservations in employment and educational sectors. Providing them with such basic rights, the government will guarantee them with the right to dignity and basic survival that now they are usually ostracized from. Therefore, to bridge the normative gap, the court can look through the Act and examine whether the implementational clauses effectively provide for the positive right. If the Act is deficient in bringing the desired objectives, the court can draft creative remedies and, or by drawing out principles from international law. Conclusion As the Transgender Persons (Protection of Rights) Act, 2019 never really tries to provide trans people with fundamental rights, it has raised a lot of substantial questions in the court of law. To curb social stigma, socio-economic differences, and empower them, the law must be changed from a progressive viewpoint. It is believed that once such questions are debated, silences are broken and solutions have been reached, the judiciary shall yet again change the course of law from a liberal and progressive perspective by counting in the present opportunity of solidifying social justice and providing constitutional rights to the community.
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