“People will sometimes put each other in boxes and have biases toward one another because of what they look like or where they come from or who they are.”[1]

There is a section of our society comprising of individuals; often seen dancing on roads, begging for alms and sometimes arriving uninvited to marriages and birth events, showering blessings of good health and longevity in an exchange for money. The same community, which is widely feared for its ‘power’ to bring misfortune on utterance of a curse, unfortunately, is itself, subject to abuse, exploitation and banishment. Individuals of this community, termed variedly as Eunuchs, Hijras, Aravani, Jogappas, etc., in different parts of our country, represent gravely marginalised units of our society; largely unloved, uncared for and in several instances subject to incidents of extreme violence, torture and poverty. At yet, another end of the spectrum is a group, comprising of individuals; who do not strictly conform with the majority defined, “male” and “female” genders and gender roles. This group comprises of individuals who may dress and behave differently to their biologically assigned genders/ gender attributes and in certain cases, those who might have undergone painful surgical operations to match their external appearances to their perceptions and beliefs of self. The situation of this group, too, is no different. Though, broadly disjunct, a thread of commonality binds these two groups; firstly, under the name/title, “Transgender” and secondly, unfortunately, under the recurrent instances of ridicule, humiliation, ostracism and societal apathy, that such individuals are subjected to on a day-to-day basis.

The Supreme Court[2], while acknowledging, the term “Transgender” to be quite wide and expansive, observed, “Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female.” As per the Court, the said term, further, includes; pre-operative, post-operative and non-operative transsexual people, “who strongly identify with the gender opposite to their biological sex: male and female.”

Several countries across the world have acknowledged their responsibility towards issues related to gender-identity and sexual-orientation. It is largely accepted that the concepts of gender identity and sexual orientation of an individual are intrinsically intertwined. While the former relates to the inner sense of being male, female or transgender or transsexual person; the latter connotes an individual’s enduring physical, romantic and/ or emotional attraction to another person. Pursuant to their commitments towards their nationals and citizens, many counties have shunned the principles enunciated in Corbett v. Corbett[3]. In the said case, Ormrod, L.J. set out four criteria[4] for determining ‘sex’ and held that law should adopt and analyse the congruency of chromosomal, gonadal and genital test alone (and not psychological test/ beliefs) to determine person’s sex.  Omrod, L.J. further, rejected the argument that a surgical procedure could change a person’s sex. However, progressing significantly from the archaic and discriminatory principles laid down in the said case, countries such as the United Kingdom[5], Germany[6], Australia[7], etc. have enacted laws, inter alia, recognising the rights of transsexual persons.

Article 1 of the Universal Declaration of Human Rights (“the Declaration”) inter alia, provides, “All human beings are born free and equal in dignity and rights.”Article 6 of the Declaration read along with Article 16 of the International Covenant on Civil and Political Rights (“the Covenant”) confer on every individual, a right of recognition as a person before the law. Further, Article 17 of the Covenant, inter alia, provides, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

Recognising the need for setting out of principles for the application of international human right laws in relation to sexual orientation and gender identity, a distinguished group of international human rights experts met in Yogyakarta, Indonesia in the year 2006. Pursuant to such meeting, certain guidelines/principles, known as the Yogyakarta Principles, were formulated recognisng and conferring, inter alia, right to universal enjoyment of human rights; rights to equality and non-discrimination; right to recognition before law; right to life; right to security of person; right to privacy; etc. to everyone, regardless of sexual orientation and gender identity and prescribed the rile to be played by respective State/ State authorities to ensure guarantee of such rights. Pertinently, in November 2017, the said Principles were updated by the adoption of “Additional Principles and State Obligations on the Application of International Human Rights Law in relation to Sexual Orientation, Gender Identity, Gender Expression and sex characteristics to complement the Yogyakarta Principles[8] Accordingly, additionally, rights and obligations, inter alia, in relation to State protection; legal recognition; right to sanitation; right to protection from poverty, etc. were prescribed.

Under the Indian Constitution (“the Constitution”), under Article 14, an obligation is cast on the State, not to deny to  any  person  “equality before the law or the equal protection of the laws within the territory of India”. Articles 15 and 16 of the Constitution further prohibit discrimination, inter alia, on the ground of sex. Under the provisions of Articles 19(1)(a) and 21 of the Constitution, right to freedom of speech and expression to all citizens of India and right to life and person liberty to all individuals respectively, is guaranteed.

The Supreme Court in National Legal Services Authority v. Union of India[9], carried out an exhaustive review of the current laws across the globe, recognising the rights of Transgenders and contrasted the same with the conditions of such individuals in India. The Supreme Court, accordingly, stepped in to fill the lacunae by, inter alia, recognising Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. Simultaneously, the transgender persons’ right to decide their self-identified gender was upheld and the Central and State Governments were directed to grant legal recognition of their gender identity such as male, female or as third gender. The Supreme  Court was further pleased to issue directions to the Central and State Governments to take steps to treat such individuals as socially and educationally backward classes of citizens, extending all kinds of reservations in case of admission in educational institutions and public appointment; take measures for framing various social welfare schemes for their betterment; develop a sense of acceptability and address issues such as fear, shame, gender dysphoria, etc., faced by such individuals, etc. Pertinently, in the meanwhile, an Expert Committee constituted in the Ministry of Social Justice & Empowerment had submitted its report on the issues relating to Transgender persons on January 27, 2014, recommending, inter alia, formulation of an umbrella scheme for transgender persons for empowerment of transgender community, extending educational, welfare policies to the transgenders, etc.

Subsequent to the judgment of the Supreme Court, the Transgender Persons (Protection of Rights) Bill, 2016 (“the 2016 Bill”) was introduced in the Lok Sabha on August 2, 2016. The 2016 Bill defined a transgender person[10] as, “one who is (i) neither wholly female or male; (ii) a combination of female and male; or (iii) neither female nor male and whose sense of gender does not match the gender assigned at birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.” Under Section 3 thereof, prohibited discrimination against a transgender person, including denial of service or unfair treatment, inter alia, in relation to education; employment; healthcare; access to, or enjoyment of goods, facilities, opportunities available to the public; right to movement; etc. Significantly, under Section 4 of the said Bill right of recognition of gender/gender identity was provided. An obligation was cast on the appropriate government[11], under Section 9 of the 2016 Bill, to formulate welfare measures, in particular, to secure  full  and  effective participation of transgender persons and their inclusion in society. Section 13 of the said Bill, confers right of residence to the transgenders; grievance redressal mechanism (under Section 12); non-discrimination in employment (Section 10); obligation on the educational institution to provide inclusive education to transgender (Section 14); etc. The Bill further recognised offences such as begging, forced or bonded labour (excluding compulsory government service for public purposes); denial of use of a public place; denial of residence in household, village, etc. and physical, sexual, verbal, emotional and economic abuse under Section 19 of the 2016 Bill. Under Section 17 of the said Bill, establishment of National Council for Transgender was provided, inter alia, to advice the government, monitor, review, etc., policies and programmes for transgender persons. Though the 2016 Bill was an appreciable step in regard of recognition of rights of transgenders, however, the same could not be adopted in a statutory form.

Quite recently, the Transgender Persons (Protection of Rights) Bill, 2019 (“the 2019 Bill”) was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment. The 2019 Bill was passed by the Lok Sabha on August 5, 2019 and by the Rajya Sabha on November 26, 2019. Thereafter, with the assent of the  President on December 5, 2019, the said Bill has been adopted as the Transgender Persons (Protection of Rights) Act, 2019[12] (“the Act”). The said Act, under Section 2(k) defines transgender person as “a  person  whose  gender  does  not  match  withcthe  gender  assigned  to  that  person  at  birth  and  includes  trans-man  or  trans-womanv(whether  or  not  such  person  has  undergone  Sex  Reassignment  Surgery  or  hormonetherapy  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.”

Similar to the 2016 Bill, the Act prohibits discrimination under Section 3; confers right on transgenders to self-perceived gender identity (Section 4); casts an obligation on appropriate government to formulate welfare measures (Section 8), programmes for welfare and self-employment (Section 14) and health care facilities for transgenders (Section 15); prohibits discrimination in employment (Section 9); etc., besides establishment of National Council for Transgender closely akin to as provided under the 2016 Bill.

The 2019 Act is a first statutory enactment meant for amelioration of the conditions of the transgenders. However, the same is highly criticised as a “draconian and discriminatory” form of legislature, by several proponents of the transgender community. Pertinently, even at the time of the discussions on the 2019 Bill in the Rajya Sabha, one of the prominent Members[13] had objected to certain provisions thereof and sought for a reconsideration on such provisions. As per the said Member, provision[14] under the Bill relating to certificate of identity, recognising an individual as transgender, were discriminatory and derogatory to a human being. Unfortunately, such objections were not considered or rectified while passing the Bill. The Act, inter alia, has also been criticised on the ground that the penalty for the offences prescribed under the said Act are not stringent. It has been further gravely objected that the Act does not clearly cater to all communities and forms of expression of gender identity, gender expression and sex characteristic issues and that even the definition provided therein of “transgenders” is not exhaustive.

Undoubtedly, the efficiency and effectiveness of any Act/legislature gets tested with time, its implementation and judicial scrutiny. Further, though, some loopholes existing in certain provisions of the Act are quite apparent, however, the reality remains that the said Act is the first step in the enduring struggle of the transgender community for their identity recognition. Amendment, judicial pronouncement and proactive suggestions would act as effective tools to mould the Act, as it exists today. Undeniably, the Act has a long way to go, to cater to all issues which the transgender community has been subjected to from ages. Despite all, the Act marks a legislative recognition, though, maybe flawed, of the rights of a community which has long remained unnoticed and under the shadows of the majority. It does not, however, go without saying that there is an imminent need of societal acceptability of these groups’ individuals, who despite abolition of untouchability in our country, are subject to bear the brunt of neglect and ostracism. Progressive development would be meaningful only when the county with all its participating members grow uniformly and that the same is not at the cost of subjugation of one over another. Accordingly, such acceptance and compassion towards the transgender community is a first step in the long journey towards development.

*Managing Associate, L&L Partners Law Offices 

[1] Rich Moore

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[3] [1970] 2 WLR 1306  : (1970) 2 ALL ER 33

[4] (i) Chromosomal factors; (ii) Gonadal factors (i.e. presence or absence of testes or ovaries); (iii) Genital factors (including internal sex organs); (iv) Psychological factors. Transsexualism was deemed to fall under ‘Psychological factors’.

[5] The Gender Recognition Act, 2004 and the Equality Act, 2010

[6] Civil Statutes Act

[7] Sex Discrimination Act, 1984 and Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013

[8] Also known as the Yogyakarta Principles plus 10

[9] (2014) 5 SCC 438

[10] Section 2(i) of the Transgender Persons (Protection of Rights) Bill, 2016

[11] Section 2(a) of the Transgender Persons (Protection of Rights) Bill, 2016- (a) “appropriate Government” means,-(i) in relation to the Central Government or any establishment, wholly or substantially financed by that Government, the Central Government; (ii)  in  relation  to  a  State  Government  or  any  establishment,  wholly  or substantially  financed  by  that  Government,  or  any  local    authority,  the  State Government;”

[12] Transgender Persons (Protection of Rights) Act, 2019 

[13] Samajwadi Party (SP) MP, Mrs Jaya Bachchan

[14] Section 5 of the Transgender Persons (Protection of Rights) Bill, 2019 and Section 5 of the Transgender Persons (Protection of Rights) Act, 2019.

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