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Putting an end to the struggle of Transgenders – Unearthing the myths of the Transgender Persons Act


Transgender Act
Image Courtesy – Baz Grafton

The title of the article might sound as if it is going to give certain solutions that would put a halt to transgender people’s troubles or would throw light on such measures if there are any in place. However, the second part of the title specifies what it is going to be about. Before we delve deep into the legal angle of the issues of the transgender community, taking a social view is necessary because law after all comes from society. Each day we see people in our surroundings, but we also come across transgenders, not so frequently but we do, however, we do not talk about them as comfortably in our homes as we did about males and females because for centuries the transgender community has been shunned by the society as a consequence of society’s queer thinking and perspective.

The most common place you might find people from the transgender community are in buses, at houses where a wedding has taken place or a child is born. But why is this so? Why is it so rare that we find them working in offices, courts, colleges, schools, etc. for that matter? But if it took India a case in 2014, to include transgender people in the basic fundamental rights framework, then jobs are a far cry.  A study was conducted by the National Human Rights Commission in which it was found that almost 92% of people out of the total transgender population in India do not get the chance to contribute to the growth or development of the country because even the ones qualified do not get jobs. Another social or more accurately psychological reason for this may be transphobia. 

We might never be able to understand the discrimination and equality that the transgender or the LGBTQAI+ (lesbian, gay, bisexual, transgender, queer, asexual) have to face, and to corroborate this statement we have the recently passed Transgender Persons Act, 2019,  prima facie, it would give a positive impression favoring the transgender people but as we read and get to know about the concerns of transgender we understand the irony of the act which is that in reality, an ac meant for transgender it is not quite working for the transgender community.

Identifying Transgender

The meaning of the term ‘transgender’ is quite ambiguous as provided in the Transgender Persons (Protection of Rights) Act, 2019, so referring to that definition might be legally appropriate but not so socially as it is not descriptive of the exact meaning of the term. For a clear understanding, the following definition can be referred to –

Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” 

The above definition in simple words makes the term transgender clear. However, since we have to study the implications of the Transgender Persons Act, we have to go through the definition of the act also, which is provided under, Section 2(k), “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta. This definition is a lengthy one but not very specific about the term’s meaning.

Background of the Transgender Persons (Protection of Rights) Act, 2019

In India, the awareness about transgender rights spread after the NALSA Judgment in 2014, which is a landmark case on transgender rights, and a lot of significant and mindful observations were made by the court. Justice Radhakrishnan stated that “Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of the Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, and hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mind-set which we have to change”.

After the passing of this judgment, the Transgender Persons (Protection of Rights) Bill, 2016 (the 2016 Bill) was introduced in the Lok Sabha in August 2016 but this bill failed to constitute an act. Eventually, in 2019, the bill was again moved in the Lok Sabha by the Minister of Social Justice and Empowerment, and this time the bill passed both Lok Sabha and Rajya Sabha and got the assent of the President leading ultimately to the formation of the Transgender Persons (Protection of Rights) Act, 2019. Whilst the act was being discussed in the Lok Sabha and the Rajya Sabha a lot of debate took place and many members termed the act as draconian and derogatory.

Why is the act facing reproval?

LGBT

Although this act is being considered a progressive step toward an inclusive society, it is being criticized by the community for which it is passed itself. Transgender people feel that the act does not meet all the requirements of the community for a better and equal place in society. The quote that follows sums up what transgender thinks about the act. 

“A series of bills beginning with the 2016 bill followed by the one in 2018, was but a death knell on the culmination of hopes of the community.” There are three major assertions put forward by them and these include, 

  1. A transgender person has to get a certificate of identity made by the respective district magistrate, which would indicate their gender as ‘transgender’ as given under Section 5 of the act. 
  2. The Act does not provide any reservation to transgenders, be it in the realm of education, employment, etc. Although, Section 9 and Section 13 of the act, provide for nondiscrimination in employment and inclusivity in educational institutions respectively no reservation has been provided for in the Act that conflicts with the NALSA (National Legal Services Authority) Judgment since the SC in this case observed that, “to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments”.
  3. Another major and cardinal point for protest against this act is the lack of protection against sexual abuse like rape, molestation or mental abuse like psychological harassment, etc. The Act prescribes imprisonment not exceeding two years with a fine. However, in the IPC (Indian Penal Code) under Section 376, the punishment of rape ranges between 10 years and life imprisonment which is considered rigorous imprisonment with a fine.
    The question here is, rape is rape no matter with whom it happens, then what is the basis for prescribing different punishments for rape? The people who passed the bill can only answer this question, also, how and why did they find this correct? 

The act is silent on certain rights like marriage rights and adoption rights etc, which makes it incomplete and non-inclusive of all the areas associated with transgender. 

Conclusion

In essence, the Transgender Persons (Protection of Rights) Act, 2019 is a step toward making society more inclusive and acceptable towards transgender, however, it could not be stated as a ‘progressive step’. The reason underlying this assertion is the non-acceptance of transgender towards this act. According to them, this act fails to serve their actual needs and it is causing inequality in the guise of equality. The many assertions of transgender for opposing and protesting against this act include an ambiguous definition of transgender, the requirement of getting a ‘certificate of identity, no reservation in the field of education or employment, no provision for marriage or adoption rights, etc. and lesser punishment for sexual abuse in contrast to the one prescribed under IPC. A better way of addressing the issue of abuse of transgender could have been an amendment to IPC to include transgender rape under the code.

However, this is a gigantic change to expect from the government, because the government has acted too leniently in addressing the issues of transgender. Transgender have been in existence since the time male and females have been so, and let alone the time before independence, it took more than 70 decades for the Indian government to formulate an act for them which to add to their conundrums fails to meet most of their requirements. Hence, India either needs new legislation or changes to the current legislation, to make it suitable for the transgender community. The precedents like the NALSA Judgment would also act as a welcome move in their favor.

The awareness about Tran’s rights has relatively increased over recent years due to social media and movements etc. But only awareness could serve no purpose until some action is taken to address the issue. So, the government should form more committees and boards to have a deeper look at Trans’ issues and surveys should be done to have a better view of their needs and concerns among other measures. The major point is that immediate and fast action is required. 



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