Trans Rights are Human Rights

Kirti Bhargava

The Golden Hour for a Meaningful Discourse on Transgender Rights in India

The year 1852 in India is painfully remembered for the brutal murder of Bhoorah, a trans woman, in northern India’s Mainpuri district, near present-day Agra. Speculations were rife that her former lover had killed her in a fit of rage. What was striking however was that the British judges didn’t think the case was worthy of a full-fledged investigation. This incident wasn’t merely a standalone wanton case of social exclusion and assault. Rather, it prompted the British Indian government to castigate the community as a whole by categorising them as a ‘criminal tribe’ under the Criminal Tribes Act of 1871. 

The victim’s death in the case was treated as far-reaching evidence for the immorality of the eunuchs and thereon, the British launched an assailing campaign aimed at erasing their public presence moving towards gradual cultural elimination. They were penalised with hefty fines or thrown into prisons for wearing female clothing and ornaments, often looked down upon as sexual deviants and unnatural prostitutes. 

More than a century later, as we acclaim June as Pride Month, this article aims to initiate a meaningful discourse around the recently legislated Transgender Persons (Protection of Rights) Act, 2019, and what it has to offer today.

The genesis for transgender rights in India was first laid formally by a landmark judgement of the Supreme Court in 2014. In the NALSA V/s Union of India case, the Supreme Court ascertained the community’s rights for self-perceived gender identity and acknowledged the need for a ‘Third Gender category’ in official records. Subsequently, a private members’ bill was introduced in the Rajya Sabha in 2014 by Member of Parliament Tiruchi Siva. This bill looked at a range of entitlements for the community,  in areas of health, education, skill development, and employment opportunities as well as protection from abuse and torture. It also proposed a 2% reservation for trans persons in educational institutions and government jobs. This draft bill was received somewhat well by the community but with the dissolution of the 16th Lok Sabha, the bill lapsed.

Once again, in 2016, a modified version of the same was tabled in Lok Sabha by the Union Minister for Social Justice and Empowerment. This has today become the embodiment of what we know as the Transgender Persons (Protection of Rights) Act of 2019.

At the very onset, this marks the Indian Government’s first such effort to institutionally recognise Transgender people in India. As per the 2011 Census, their official population stands at around 5,00,000 individuals. The act defines a transgender person as “one whose gender does not match the gender assigned at birth. It includes trans men, trans women, persons with intersex variations, genderqueers, and persons with socio-cultural identities, such as kinnar, jogata, aravani and hijra.”

“By clubbing intersex and trans under a common umbrella, the very definition fails to cast a cynosure upon gender fluidity”

This descriptive aspect has been widely criticised by activists and members of the community as vague. By clubbing intersex and trans under a common umbrella, the very definition fails to cast a cynosure upon gender fluidity. Members of the community reject the nomenclature of ‘Transgender’ for the bill and instead suggest a more comprehensive title ‘Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill,’ elucidating a clear distinction between the terms Intersex and Transgender in an acerbic manner.

Secondly, it prohibits discrimination against transgender people in spheres of education, employment, healthcare, accords them the right to movement, to reside in their households or own property, and so on. The act also nudges the government to undertake welfare measures for the community for their rescue and rehabilitation, vocational training, and create self-employment opportunities. Additionally, it stipulates that the state should arrange for separate HIV surveillance centres and sex reassignment surgeries.

“A lack of enforceability in the anti-discrimination clause renders it rudderless, relying excessively on the moral compass of the wrongdoer”

While it seeks to be progressive in letter, it is arguably truncated in spirit. A lack of enforceability in the anti-discrimination clause renders it rudderless, relying excessively on the moral compass of the wrongdoer. A recently collated study by the NHRC suggests that 99% of transgender people have suffered social rejection on more than one occasion, even by their own families. 96% have been denied jobs and thus are forced to take to vulnerable livelihood choices such as sex work or begging. Around 60% have never attended school, and those who did faced major discrimination. 

Extrapolating these figures to their lived experiences necessitates the need for better enforceability of laws. Other welfare measures settle perhaps as a post-dated cheque at the disposal of the state. With a meagre budgetary allocation of Rs. 1,00,00,000, it remains to be seen how the implementation of the other welfare measures unfolds. 

“The very need for certifying one’s identity places an implied external authority and onus of proof on the individual, defeating the premise of self-determination”

The act also enlists provisions for obtaining a certificate of Trans identity from the District Magistrate (DM). A revised certificate must also be obtained in case of a sex reassignment surgery. The very need for certifying one’s identity places an implied external authority and onus of proof on the individual, defeating the premise of self-determination. In doing so, it also leaves scope for bureaucratic misuse and harassment, as there exists no window for appeal against an arbitrary order of the DM. What is also noteworthy is that it fails to concede to the problematic reality of forcible sex reassignment surgeries, specifically on minors. The recent Madras High Court judgement banning such medical procedures on intersex infants (aimed at empowering the individual’s consent) must be paid heed to here.

Furthermore, there is also a clause for setting up a National Council for Transgender Persons (NCT) comprising a representation of five members from the community. The council offers some ray of hope, however, the transgender representatives remain in minority and it will augur well for their voices to be sufficiently amplified through this forum. It remains to be seen how far this end will be achieved.  

“This conundrum of Trans abuse cases gets further complicated in a system where the community already faces systematic exclusion, discrimination, and sidelining within the legal and judicial recourse”

Finally, another positive step is identifying offences against the community and affixing penalties for the same, ranging from six months to two years imprisonment, along with a fine. Four such categories of offences have been identified: Denial of use of public places, forced or bonded labor, forced eviction from household as well as physical, emotional, sexual or economic abuse. However, not only are the safeguards offered inadequate, but the community has also expressed grief over the lighter sentences being facile, that may fail to create much on ground deterrence. This conundrum of Trans abuse cases gets further complicated in a system where the community already faces systematic exclusion, discrimination, and sidelining within the legal and judicial recourse. 

To sum up, essentially the concerns with the act need to be looked through a prism holding multiple perspectives. The first of these is the legal-constitutional validity of the act. The features appear violative of Article 14 (right to equality), 15 (prohibition of discrimination on grounds of sex), 16 (equality of opportunity in matters of public employment) and 21 (right to a dignified life and right to livelihood encapsulated in the right to life and personal liberty) of the constitution. 

For instance, while the Act penalises organised begging (badhai tradition at weddings and childbirth is a long-standing cultural practice amongst the Hijras), it does not provide for any alternative and meaningful avenues for greater inclusivity in public employment opportunities. The demand for affirmative action, which the 2014 Bill catered to, has been left unacknowledged in the 2019 act. The Supreme Court, recently taking cognisance of these loopholes to the law, has issued a notice to the Centre against a plea challenging the constitutionality of the Transgender Persons Act.

“At the very onset, the definitional component fails to appreciate the distinctions of gender, sex, and sexual orientation”

A second viewpoint offers a theoretical and feminist critique wherein the hierarchy of genders finds itself penetrating pieces of legislation. At the very onset, the definitional component fails to appreciate the distinctions of gender, sex, and sexual orientation. The mandatory provision of placing trans individuals in rehabilitation centres, as they are left dejected by their families, needs a rethink. It renders them devoid of any agency whatsoever, treating them as ‘subjects of care,’ at the hands of the state. Confining them to such centres also paves the road towards ghettoisation of the community. Under the garb of such differential treatment (in contrast to the treatment of cis men and women), it fails the NALSA judgement’s assertion for self-determination and accords transgenders a lesser status as citizens in society.

The third and final standpoint places a moral-ethical burden on us, as members of a just and humane society. In measuring the transgender identity on a scale as opposed to the binary male and female identity and placing the former at the mercy of the state machinery is violative of the individual’s dignity. The compulsion and hassles of obtaining paperwork for ascertaining a very personal component of our lives are pedantic, dehumanising, and largely dystopic.

For these very reasons, the passage of the act has been vociferously opposed by the community. The 12th annual Pride Parade 2019 in Delhi witnessed widespread protest and agitation against what was collectively deemed to be a ‘Regressive and half-hearted piece of legislation.’ The international NGO, Human Rights Watch, condemns it as failing the community on grounds of fundamental rights for self-identity and urges the Indian government to amend it in line with international standards. The World Medical Association’s as well as the United Nation’s standards for transgender rights mandate the separation of medical and legal processes for reassignment of gender identities.

“But as citizens, we must also realise that a meaningful discourse on LGBTQ rights in India goes beyond this benchmark limit and needs to be more far-reaching for fruitful gains”

While the legislation remains within the radar of SC hearings, for now, it may be pointed out that the court proceedings will gain limelight simply for determining whether the legislation passes the minimum legal-judicial cut off for being held valid. It will only deal with the first category of our concerns. But as citizens, we must also realise that a meaningful discourse on LGBTQ rights in India goes beyond this benchmark limit and needs to be more far-reaching for fruitful gains. 

We seek to stand miles away today from a state-sponsored attack on the community in British India and aim to step towards a more liberal and inclusive ethos. The focus should be on facilitating more dignified and equitable opportunities to ensure a more central role for the community. Better education and employment opportunities, gender sensitisation of law implementation bodies, extending legal, medical, psycho-social aid when needed, and involving trans voices in policy framing can help build more nuanced visibility for the community within the public spheres. Suffice it to say, the golden hour has ripened after a long wait for a state-led intention for the upliftment of the transgender community. It should be progressively assiduous for it to tailor-fit to their needs better.

Kirti is a graduate in Sociology from Lady Shri Ram College. A passionate learner, dancer and writer (in that order), she aspires to make an impact by widely articulating her views on socially relevant issues. She also occasionally takes breaks from her routine to mentally rejuvenate by trekking the Himalayas. 

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