ACKNOWLEDGEMENT

 First and foremost, praises and thanks to the God, the Almighty, for His showers of blessings throughout my research work to complete the research successfully.

I am indebted to Dr. Aditya Tomer, Additional Director of Amity Law School Noida who workedactivelytoprovideuswiththeprotectedacademictimetopursuethisresearchworkin the wake of Covid-19pandemic.

This paper and the research behind it would not have been possible without the exceptional support of my supervisor, Ms. Vaishali Arora. Her enthusiasm, knowledge and exacting attention to detail have been an inspiration and kept my work on track from my first page to the final draft of this paper. She has answered with unfailing patience numerous questionsand doubtsthatIhadinthecourseofmyresearch.Shehastaughtmethemethodologytocarryout the research and to present the research work as clearly aspossible.

I would like to say thanks to my friends and batch mates from Amity Law School for their constant encouragement.

Nobody has been more important to me in the pursuit of this project than the members of my family. I would like to thank my parents; whose love and guidance are with me in whatever I pursue. They have been extremely patient with me.

Finally, my thanks go to all the people who have supported me to complete the researchwork directly orindirectly.

PREFACE

The objective of this paper is to put light on the historical narrative of the transgender community and how it is responsible for the stigma and discrimination attached to them even today. This paper seeks to identify the loopholes in the current mechanism and offer recommendations to uplift the Transgender community.

The research work has been divided in six major chapters and further divided into various sub parts.

The first chapter which is named as Introduction consists of the History and Origin of Transgender community. The chapter covers the history of Transgender community during Vedic Period (1500 – 500 BCE), Mughal period (1526–1857), British period (1857 –1947), and finally the post-independence period to present year.

The second chapter of this research work attempts to cover all problems faced byTransgender communityinIndiasuchasthemisconceptionsurroundingtheterm‘transgender’,theirsocial exclusion, problems in exercising the legal, social and civil rights, as well as the health issues faced bythem.

The third chapter provides an International perspective on the Transgender community. Starting from the Universal Declaration of Human Rights and its two covenants to the Yogyakarta principles. This Chapter also covers decisions of foreign courts on questions of sexual orientation and gender identity.

The fourth chapter of this research work starts with a brief summary of facts and issue of NALSA judgement of 2014 and ends with the critical analysis of the same.

Chapter fifth of this research sheds light on the salient features of Transgender Persons (Protection of Rights) Act, 2019 and a critical analysis of the same.

Thesixthchapterofthisdissertationgivesconclusionoftheresearchworkandcertainvaluable suggestions to improve the legal framework provided for the Transgendercommunity.

LIST OF ABBREVIATION

TABLE OF CONTENTS

 CHAPTER I

Introduction (History & Origin of Transgender community)

In a culturally diverse country like India, where ‘morals’ and ‘values’ play a significant role in moulding a person’s identity, there is an ongoing debate concerning sexual orientation and gender identity. In the midst of these discussions, the term ‘transgender’ comes in. ‘Transgender’ is not defined adequately anywhere which adds more fuel to the stigma that is already attached to people who do classify themselves under the conventional genders, that is, male and female.

One thing is pretty clear that transgender is just an umbrella term which encompasses various identities. One manner to describe them is to say that they are those who have both male and female genitals but who identify themselves with only one gender. Another manner to define them is to say that they are people who are not wholly masculine or feminine as per societal norms, that is, their gender expression is different from their sex.1

‘Trans’, as per dictionary, means ‘beyond’ which suggests that it is a gender beyond the conventional genders. 2 It is used to define gender queer people, i.e., people who do not consider any one sex or gender as their own. The term ‘transgender’ also covers ‘cross – dressers’, i.e., people who wear clothes and dress up as contradictory to what is expected of their gender. Even MSM or gay community; and WSW or lesbian community; or people exhibiting behaviour of same sex orientation are called transgender.3 Transgender are a part of the ‘LGBT’ group, but to say that ‘transgender’ is the substitute for gay and lesbian community is outrightly wrong.

¹ LGBTQIA RESOURCE CENTER GLOSSARY, https://lgbtqia.ucdavis.edu/educated/glossary (last visited Aug 14, 2020)

² TRANS- DICTIONARY.COM, https://www.dictionary.com/browse/trans- (last visited Aug 5, 2020)

³ Young, Rebecca M, and Ilan H Meyer. “The trouble with “MSM” and “WSW”: erasure of the sexual-minority person in public health discourse.” American journal of public health vol. 95,7 (2005): 1144-9. doi:10.2105/AJPH.2004.046714 (last visited Aug 5, 2020)

In North India, the transgender community is traditionally called the “Hijra community”. The term ‘Hijra’ means eunuch and it is the umbrella term that covers the non- conventional identities and behaviours.4 In Karnataka the term ‘Jogtas’ or ‘Jogappas’ is used generally for male to female transgenders. In Andhra Pradesh they are called ‘Shiv Shakti’s’.5 The transgenders form a part of the marginalised community that is either looked upon with pity or look down upon with disgust. They have faced systematic discrimination since the time of British rulers who considered transgenders to be an abomination of nature who corrupt people through sex work.6 This systematic discrimination has not only resulted in their poor social standing but also a weaker economicposition.

The Indian Hijra community has existed for more than 4000 years. Their existence can be traced back to Ancient India, but such tracings (of the origin) reveal that their situation and status has regressed and deteriorated.

Ancient period

‘Eunuchs’ find their mention in the Vedas (1500BC- 500 BC). ‘Eunuch’ here means castrated men who served as guards for the queen or servants for the harem.7 The Vedas recognised three categories of gender based on one’s ‘prakriti’ or nature. There is the male nature, female nature, and the third nature – ‘tripya-prakriti’.8 The same finds mention in the Kama Sutra as well. In Manu smriti, which is considered as the bedrock of Hindu law, their biological origin is recognised which implies that three sexes were, in fact, recognised.9

4 Kalra, Gurvinder. (2011). Hijras: The Unique Transgender Culture of India. International Journal of Culture and Mental Health. 5. 10.1080/17542863.2011.570915. (last visited Aug 7,2020)

5 Hijra, kothi, aravani: a quick guide to transgender terminology Scroll.in, https://scroll.in/article/662023/hijra-kothi-aravani- a-quick-guide-to-transgender-terminology (last visited Aug 7, 2020)

• HIJRASAND THE LEGACY OFBRITISH COLONIAL RULEININDIATHELONDONSCHOOLOFECONOMICSAND

POLITICAL SCIENCE, https://blogs.lse.ac.uk/gender/2019/06/17/hijras-and-the-legacy-of-british-colonial-rule-in- india/ (last visited Aug 6, 2020)

• WHEN EUNUCHS WERE THE MID-RUNG OF POWER IN THE MUGHAL EMPIRE THE INDIANEXPRESS,

https://indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/ (last visited Aug 11, 2020)

8 Vedic Third-Gender Types and Terms galva108, https://www.galva108.org/single-post/2014/05/11/Vedic-Third-Gender- Types-and-Terms (last visited Aug 11, 2020)

⁹ Supra

In this regard, Hijra community has a very rich religious-cultural background. Hindu mythology talks about three strains of ‘divine dancers’ or spirits of dance and music. The female dancer is called ‘Apsaras’, the male dancer is called ‘Gandharvas’ and the third type is called the ‘Kinnar’. Kinnar or ‘Napumsaka’ means the lack of ability to procreate or someone who is impotent.10

Mughal period

During the Mughal rule, the Hijra community was called the ‘Khwaja Sira’ implying that they were royal and knowledgeable because of which they were given regal status.11 They served as guards for protection of the begum, guardian for religious places like the mosque and madina, and were the rulers most trusted advisors, messengers and spy. They played a notable role in the politics of Royal courts and were often awarded with titles to the land, apart from being paid cash for their services.12 During the Lodi Dynasty, the ‘Hijron ka Khanqah’, a religious monument, was constructed which stands even today in Delhi’s Mehrauli. It was built for Miyan Sahab, a eunuch who was beloved of the emperor and a Sufi saint at that time.13 Even today the eunuchs visit and pay respect to the shrine.

Francisco Pelsaert, a Dutch trader, visited the Mughal Empire in the 17th century. He was amazed to find that such respect and regard was given to eunuchs at that time. His observance indicated astonishment at how the eunuchs had means to travel, proper clothing like the rulers, and had great wealth to their account.14 With the British period the position of transgender community degraded as the colonial rulers stripped them off the wealth and title and oppressed them.

¹⁰Loh, Jennifer. (2014). Narrating Identity: the Employment of Mythological and Literary Narratives in Identity Formation Among the Hijras of India. Religion and Gender. 4. 21. 10.18352/rg.8259 (last visited Aug 11, 2020)

¹¹Mahwish Gul, HIJRAS History of a marginalised community, D+C Development and Cooperation, Oct. 16, 2018, https://www.dandc.eu/en/article/british-introduced-discrimination-transgender-persons-south-asia (last

visited Aug 12, 2020)

¹²Supra

 ¹³ Aditi Vatsa, Cemetery of the eunuchs, THE INDIAN EXPRESS, Dec. 16, 2012, http://archive.indianexpress.com/news/cemetery-of-the-eunuchs/1045896/ (last visited Aug 14, 2020)

¹⁴supra note 7.

British period

With the coming of British rule leading to the subsequent decline of Mughal rule, the actual downfall of the transgender community took place. They were perceived by the British rulers as nymphomaniacs who are contagion of disease and a threat to public decency.15 It is the British who sowed the seeds of stigmatisation which remains with the transgender community even today. British were so repulsed by them that they used the Criminal Tribes Act of 1871 to suppress their kind.16 This act labelled the transgender community as a ‘criminal tribe’ practically targeting their whole generation. They were put under surveillance by registering their names and personal details. Arbitrary restriction was put on their traditional occupation of performing at public places and engaging in rituals.17 Besides, self- castration and castration of others was prohibited by the Act. The land that was awarded under the Mughal rule was taken away on the ground that such land was not heritable18 In 1860, the Indian Penal Code was enacted , its Section 377 which is equivalent of the British Buggery Act 1533, criminalised carnal intercourse and homosexuality. 19This mistreatment of transgender community paved way for the prejudicial attitude that the society would have towards thempost-independence.

¹⁵supra note 6.

¹⁶supra note 11.

¹⁷ Jessica Hinchy (2017) The eunuch archive: Colonial records of non-normative gender and sexuality in India, Culture, Theory and Critique, 58:2, 127-146, DOI: 10.1080/14735784.2017.1279555(last visited Aug 18,2020)

¹⁸ HISTORICAL EVOLUTION OF TRANSGENDER COMMUNITY IN INDIA Asian Review of Social Sciences ISSN:

2249-6319 Vol. 4 No. 1, 2015, pp. 17-19 © The Research Publication, www.trp.org.in ((last visited Aug

18,2020)

¹⁹ THIS ALIEN LEGACY HUMAN RIGHTS WATCH, https://www.hrw.org/report/2008/12/17/alien-legacy/origins- sodomy-laws-british-colonialism (last visited Aug 20, 2020)

Post-Independence period

Not much has changed after independence. The Indian Constitution became effective on 26th January 1950, but there was no relief for the transgender community. The “Criminal Tribes Act 1871”, post-independence, found its place in different Acts. One such Act is the Karnataka Police Act of 1964. It was only in 2012 that such a draconian law (to control eunuchs) was amended, providing a provision which would allow the eunuchs to object to the registration made by the police. Further in 2016, it was declared that the categorization of “eunuchs” will be removed from Section 36A of this Act, 1963. 20 Jawaharlal Nehru and Mahatma Gandhi were the early protesters of section 377 of IPC. They cited reasons that such provision goes against the tolerance value and acceptance that our diverse nation holds. The petition to strike down the section was first filed in 1994, and then in 2001 and 2009 respectively, but it was unprosperous. It was in 2018 that it was declared‘unconstitutional’.

Besides, in 2014, the ‘third gender’ was recognised in National Legal Services Authority v Union of India21, where it was also held that the transgender community will have fundamental rights under the Constitution as well

In 2019, the “Transgender Persons (Protection of Rights) Act” was passed. Although this Act and its previous drafts of 2014 and 2016 respectively, have invited criticism, even so it is a major breakthrough as it defines the term transgender; prohibits discrimination of various sorts against the transgenders; provides welfare measures such as healthcare and right of residence; and provides penalties for offences against the transgender. “Transgender Persons (Protection of Rights) Draft Rules,” were published in April,2020.22

²⁰State to remove ‘eunuch’ from Karnataka Police Act, DECCAN CHRONICLE, Jan. 13, 2016, https://www.deccanchronicle.com/current-affairs/130116/state-to-remove-eunuch-from-karnataka-police-act.html (last visited Aug 28, 2020)

²¹National Legal Services Authority Act v Union of India AIR 2014 SC 1863.

²² Draft Transgender Persons (Protection of Rights) Rules, 2020 PRS India, https://www.prsindia.org/billtrack/draft-transgender-persons-protection-rights-rules-2020 (last visited Sep 1, 2020)

CHAPTER II

Problems faced by Transgender Community in India (Situation in India)

 The transgender community in India faces a lot of issues and challenges in almost all spheres all of which are interlinked. The lack of legal definitions triggers legal complications. Most of the legal issues faced by transgenders in India are concerning inheritance, wills and trusts, immigration status, employment discrimination, and access to public and private health benefits. These legal complications further result in limited access to education, health services, employment etc. Such limited access to public places is also because of the cultural differences and social exclusion that they face. It cannot be denied that they face a lot of harassment due to lack of sensitivity by the staff at health care centres, and this is the reason why they do not seek adequate medical treatment when needed.

Misconceptions surrounding the term ‘Transgender’

The problem begins with defining who a transgender is. As discussed in the previous chapters, transgender is a very broad term which consist of but is not limited to: – transsexuals, hermaphrodites, eunuchs, persons experiencing gender dysphoria and so on.

Very conveniently the homosexual community is also very wrongly put under the term transgender. The term LGBT is the acronym for “lesbian gay bisexual transgender”. 23As per the American Psychological Association, the “lesbian gay bisexual” part of the term LGBT points towards sexual orientation of a person.24 But one needs to understand that this sexual orientation is different from gender identity because the sex that is assigned to an individual at birth but does not always have to relate to the sex one identifies with. Another problem comes in categorising those transgenders who undergo an SRS.

²³ MISCONCEPTIONS ABOUT BEING TRANSGENDER ARCGIS.COM,

https://www.arcgis.com/apps/Cascade/index.html?appid=1c75515975034cfbbb44722bcfbf5618 (last visited Oct 3, 2020)

²⁴ AMERICAN PSYCHOLOGICAL ASSOCIATION, https://www.apa.org/topics/sexual-orientation (last visited Sep 12, 2020)

Social stigma and exclusion

In India, marriage between two people of opposite sex is the norm to ensure the survival of the family line. A transgender in the family by default leads to this assumption that a transgender person is impotent and hence the family line will perish which is another reason why transgenders face so much discrimination. The families often keep the status of the member (who is a transgender) under the carpet. This also implies that they do not getany share in the family property or access to any other entitlement.25 The transgender themselves leave behind their birth families(unable to cope with the shame) and subsequently find a way into various transgender communities where they find the security, acceptance, and nourishment that was denied to them all their life. This also means that many transgender people are school dropouts as they leaveeducation.26

As discussed in the previous chapter, the transgender community in India has a rich religious background because of which it is believed that transgender should never be annoyed/insulted as it would invite bad luck. In fact, on occasions like marriage and childbirth, they are paid generously to seek their blessings. This notion is another reason for transphobia.27 An emerging issue is the adoption of this ‘Hijra culture’ where people have started dressing up as transgenders because they think it is ‘easy money’. In our Indian cinema, the transgender community is often portrayed in an insensitive manner just to add a humorous moment. 28 Besides, there are no separate toilets at public spaces for transgender which is a major hurdle in giving them their due privacy. All these issues were addressed in the NALSA judgement.

²⁵Mcgee, Robert. (2016). Toilets, Transgenders, and Property Rights. SSRN Electronic Journal. 10.2139/ssrn.2793287. (last visited 11 Sep,2020)

26 id

²⁷ THE CURSE OF THE HIJRA CONTEMPORARYNOMAD.COM, https://www.contemporarynomad.com/the-curse-of- the-hijra/ (last visited Sep 15, 2020)

²⁸ INDIAN CINEMA AND ITS MISGUIDED PORTRAYAL OF THE LGBT COMMUNITY THE NEWS MINUTE,

https://www.thenewsminute.com/article/indian-cinema-and-its-misguided-portrayal-lgbt-community-45508 (last visited Sep 3, 2020)

Legal, civil, and political rights

As discussed above, transgender community has faced so much stigma and marginalisation that their education suffers. As a result, not many career opportunities are available to them. They often engage in prostitution and begging and such engagement invites police intervention as it comes under “public nuisance” as per Sec 268 of IPC 29 and “obscene acts” as per Sec 294 of IPC 30 and also under Acts like Immoral Traffic Prevention Act 1956.

Until 2011, no census was ever conducted that included the transgender community, so there was no prior population data available. Information was collected only for the conventional sexes. Transgenders mostly registered under the male category. The category of ‘others’ was added only in 2011.31 This category does not find its place on many government documents as it should. It is only there on passports where one identifies under the “E” category(denotes eunuch).32

Before being recognised as the “third gender”, they have even faced problems in getting their Voter card as they faced the same issue- no other option on paper except for identifying with the conventional sexes. The same problem surfaces when they want to contest in elections. There is this famous case of KamlaJaan, the first transgender ever to get elected as Mayor in Katni district of Madhya Pradesh in the year 2000. On the electoral rolls, she was registered as a male. It was contended that she is not qualified because the seats were reserved for women. Such a mere technicality, yet she lost her case and stepped down from the post of Mayor.33

²⁹ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 §268

³⁰ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 §294

³¹http://www.census2011.co.in/transgender.php. (The data of Transgender has been cubbed inside “Males” in the primary data released by Census Department. For education purpose, separate data of Transgender has been curved out from that).

³² Rani, Kiran & Dhawan, Ashish. (2017). Challenges before Third Gender Community. 4. 551-559. (last visited Sep 12,2020)

³³Kamala Jaan Alias Hijrah v. Sadiq Ali & Others (2003) MP 31077 (2003)

Apart from this, they face problems in getting their marriage registered as the Hindu Marriage Act 1955 is silent on them, so is the adoption process in India.34

Even in international context, the UDHR is silent on the plight of transgender and it is disheartening to read the Charter of United Nation which specifically provides only for ‘man and woman’ and no third gender. 35

 Health issues

The transgender community, as specified previously, is openly engaged in prostitution. A report by UNAIDS suggests that compared to the whole population, the transgender community is at a higher risk of contracting STD’S like HIV, syphilis and even rectal gonorrhoea and other such diseases.36 The transgenders who are engaged in such professions are unaware of these health risks.

Fearing stigma and ill-treatment at the hands of doctors, they often self -medicate or refer to Hakims. It is unfortunate that public and private hospital staff is not sensitised on how to make the third gender comfortable, what is more bothersome is that the transgender community has no health insurance or medical benefits as such.37 Castration or emasculation for affirming gender is another problem for the transgender community. Hakim who are not medically qualified perform the same because of which there are further medical complications.

³⁴Why Transgender People Still Have to Go Through Hoops to Get Married or Inherit Property in India, NEWS 18BUZZ, Sep. 3, 2020, https://www.news18.com/news/buzz/why-transgender-people-still-have- to-go-through-hoops-to-get-married-or-inherit-property-in-india-2842545.html (last visited Sep 20, 2020)

³⁵United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:https://www.refworld.org/docid/3ae6b3930.html [accessed 20 September 2020]

³⁶ Wood, Sarah M et al. “Human Immunodeficiency Virus, Other Sexually Transmitted Infections, and Sexual and Reproductive Health in Lesbian, Gay, Bisexual, Transgender Youth.” Pediatric clinics of North

America vol. 63,6 (2016): 1027-1055. doi: 10.1016/j.pcl.2016.07.006 (last visited 21 Sep,2020)

³⁷Stangl AL, Grossman CI. Global Action to reduce HIV stigma and discrimination. J Int AIDS Soc. 2013;16(3Suppl 2):18934. Published 2013 Nov 13. doi:10.7448/IAS.16.3.18934 (last visited 22 Sep,2020)

Castration is anyway punishable under Section 325 of IPC38, however, the same is protected by section 88 which provides that it is not an offence if it is done in good faith implying that the person voluntarily wants to undergo castration.39

Even the mental health of the transgender community is ignored, and the researcher is of the opinion that not much literature is available on this issue. The stress of identifying one’s gender and the pressure of society is deeply embedded in their minds.40 The SRS they go through, deeply impacts their bodily functions and hormones and they do not get proper guidance during this transition. All these problems faced by the transgender community affects their asses to some basic rights in a civil society such as the “right to education, right to health services, right to vote,” and so on. With the landmark judgement of 2014 the Apex Court provided a way forward by declaring that transgender community too has fundamental rights such as right against exploitation, equality of treatment. This judgement has changed the status of transgender community, this will be elaborated in next chapter.

³⁸ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 § 325

³⁹ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 § 88

⁴⁰ Meyer, Ilan H. “Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: conceptual issues and research evidence.” Psychological bulletin vol. 129,5 (2003): 674-697. doi:10.1037/0033- 2909.129.5.674 (last visited 22 Sep,2020)

CHAPTER III

 International Perspective (Global recognition of Transgender Rights)

In the international legal order, not many rights have been conferred to the transgender community. The preamble of UDHR, which is the roadmap of human rights, refers to the “equal rights of man and woman”, the inequality begins here itself.41 The same problem manifests in the UN charter, there is no place to third gender except the binary gender.⁴²

There are not many International documents that have given right to the transgender community expressly or literally, it is often a liberal interpretation of the principles and articles that establishes their right. Starting with the UDHR and its two covenants ICCPR and ICESCR, which contain the provisions like right to life, right to liberty, right to health, prohibition on discrimination etc., all these articles are available to “everyone” which means and includes the transgender community as well. 43 44 One of the very relevant Articles with regard to right to self-identity is Article 3 of UDHR which provides that “everyone will be entitled to all the rights and freedoms, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,”45

⁴¹ UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html (accessed 11 September 2020)

⁴² United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html (accessed 13 September 2020)

⁴³ UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html (accessed 13 September 2020]

⁴⁴ UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html (accessed 13 September 2020)

⁴⁵ UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Art 3

The “UN Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment” mentions the obligation of the States to protect people irrespective of sexual orientation or transgender identity.46 This Convention was referred in NALSA judgement as well.

The Yogyakarta principles of 2006 and 2017 are the most revolutionary enumeration of the rights of people with varying sexual orientation including the LGBT community.47 They are some universal human rights that are specific for this community. In 2006, a group of international experts on human rights had a meeting in Yogyakarta, Indonesia. In this meeting, the various human rights violations based on “sexual orientation and gender identity” were discussed. These violations include not just mere denial of employment or education opportunities but grave discrimination in relation to human rights of the LGBT community like sexual violence, invasion of privacy, and killings. The experts, who participated, were from diverse backgrounds and fields including a former UN High Commissioner for Human Rights. These principles are in the form of “International human rights standards”, developed after an extensive round of analysis of the scope of obligation of the seats in relation to these human rights. In 2017, they were updated by adopting the “Additional Principles and State obligations on the Application of International Human Rights Law”. These principles are authoritative and binding, so the states must apply.⁴⁸They are significant as they put emphasis on equality and non- discrimination, right to privacy, protection from medical abuse, etc. These principles also recognise the right of people to self- determination irrespective of SRS. It also talks about how imperative it is to hold a human rights violator accountable and provide redressal. India has endorsed these principles in the NALSA judgement.49

⁴⁶ UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85 (accessed on 27 September

2020)

⁴⁷ International Commission of Jurists (ICJ), Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007, available at: https://www.refworld.org/docid/48244e602.html (accessed 25 September 2020)

⁴⁸ YOGYAKARTA PRINCIPLES: EXPERTS RELEASE AUTHORITATIVE NEW GUIDELINES ON LGBTI RIGHTS,

https://www.ishr.ch/news/yogyakarta-principles-experts-release-authoritative-new-guidelines-lgbti-rights(last visited Sep 25, 2020)

⁴⁹supra note 49

The Human Rights Council in 2011 adopted the first ever “UN resolution on sexual orientation and gender identity”.50 Its adoption resulted in OHCHR publishing the first official United Nations report on the issue.51 In March 2012 as a result, the first-time formal deliberations and debate were held regarding this report. In 2011, a brochure on “The United Nations Speaks Out: Tackling Discrimination on grounds of Sexual Orientation and Gender Identity” was published by a collaboration of OHCHR, UNDP, UNAIDS and WHO addressing LGBT rights. 52 Another global effort for transgenders has been the “Trans murder Monitoring Project” which makes reports of homicides committed against transgender community. Collection of this information is substantial; nothing has been done to address it and punish the perpetrators.53

In 2017 the OHCHR clarified that no new specific obligation is required for LGBT community as they have enough protection under UDHR. This is a major setback as it reduces the momentum the LGBT movement got.54

On 17 May 2020, “International Day against Homophobia, Transphobia and Biphobia” was celebrated, the UN experts discussed and declared that people with different sexual orientation must be given special protection in times

⁵⁰ UN Human Rights Council, Human rights, sexual orientation and gender identity: resolution / adopted by the Human Rights Council, 14 July 2011, A/HRC/RES/17/19, ( accessed 26 September 2020)

⁵¹ UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 17 November 2011(accessed 26 September 2020)

⁵² LGBT BROCHURE OHCHR, https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTBrochure.aspx (last visited Sep 11, 2020)

⁵³ TRANS MURDER MONITORING PROJECT TGEU, https://tgeu.org/tmm/ (last visited Sep 23,2020)

⁵⁴ COMBATING DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITYOHCHR,

https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx (last visited Oct 4, 2020)

CHAPTER IV

Critical analysis of; National Legal Services Authority v. Union of India

Background and Overview

The law in India only recognised the binary gender leaving the transgender community feeling very vulnerable in the absence of legal recognition. They deserve the protection of the Indian Constitution as much as any other citizen especially the “right to equality, prohibition on discrimination on the grounds of caste, creed, race, gender etc, right to privacy” and such other fundamental rights. In January 2014, the MSJE published a report of its Expert Committee discussing the problems concerning transgender community.55

It is in this regard that a petition was filed to address the grievance of non-recognition of the other gender and a plea to fill the gap that these problems have created. This judgement delivered on 15 April 2014 has been significant in sparking hope for a better status for the transgender community in India.56 The primary petition in this case was filed by the NALSA which is established Under the Legal Services Authority Act 1987. It is primary function as given in Section 12 of the Act is to give free legal aid and raise legal awareness of the disadvantaged section of society and to reduce the load on the judiciary.57

Two writ petitions were filed to address the grievances caused by non-recognition of some of the basic rights of the transgender community. One was filed by NALSA which is the primary petitioner in this case and another was filed by a NGO which is a registered association by the name of “Pooja Mata Naseeb Kaur Ji Woman Welfare Society” followed by Laxmi Narayan Tripathi who is a transgender rights activist.

⁵⁵India, Ministry of Social Justice and Empowerment, The Report of the Expert Committee on the issues relating to Transgender persons dated 21.01.2014 available at http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf (last visited Sep 5,2020)

⁵⁶National Legal Services Authority v. Union of India and others,Writ Petition (Civil) No. 400 of 2012, India:Supreme Court, 15 April 2014,

⁵⁷ LEGAL SERVICES AUTHORITY ACT, 1987 ACT NO. 39 of 1987 § 12

This case was heard and decided by a bench of the Supreme Court comprising of Justice AK Sikri and Justice KS Panicker Radhakrishnan. The petition was filed to address the issues of non-recognition of gender identity due to which the transgender community is denied some of the basic rights.58

Following issues were raised and deliberated upon-

• Whether the Transgender Community has the freedom to choose their gender?
• Whether the identity of a person changes after theSRS?

• Whether non- recognition of the gender identity of a Transgender a violationofthefundamentalrightslikeArticle14,19and21intheIndianConstitution59
• Whether the Centre and State should further make separate provisions for the TransgenderCommunity?
• Whether the Transgender Community should come under the category of“sociallyandeconomicallybackwardclass”underArticle15ofIndianConstitution60

⁵⁸supra note 27.

⁵⁹ INDIA CONST.art14,19,21

⁶⁰ INDIA CONST. art 15,cl.3.

Judgement

The judgement came after the court considered the historical narrative of the transgender community and took an extensive note of various International Conventions such as UDHR, ICCPCR, ICESR, “UN Convention against Torture and other Cruel Inhuman and Degrading Treatment”⁶¹; treaties and principles like the Yogyakarta Principles. Besides this, the court relied on judgements of courts in Malaysia, Australia, and so on.

Primarily, the court gave legal recognition to the third gender. It recognised that there are eunuchs, hijras and others apart from the binary gender. In point 108 of the judgement, it acknowledged that in India the transgender community has diversified into various categories such as “hijra, eunuch, kothis, aravanis, shiv- shakti’s etc” 62 The court also expressly declared that people of the transgender community also fall under the purview of the Indian Constitution and the laws made by the Centre and State. The court discussed each fundamental right such as Article 14, Article 15, Article 19, and Article 21. The court discussed how they apply to the transgender community.

Article 14 of the Indian Constitution provides “right to equality” and “equal protection of law” 63, this is not restricted to binary gender alone, it applies to transgender community as well. The next is Article 15 which prohibits the state to not discriminate on grounds of caste creed, colour, race, sex, place of birth etc covers transgender community too.64 The “freedom of speech and expression” under Article 19 applies to transgender community as well who have a right to express their self-identified gender in the way they dress or behave etc, subject to Article 19(2).65 Finally, the most extensive right of “right to

⁶¹ UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html (accessed 16 September 2020)

⁶²National Legal Services Authority v. Union of India and others,Writ Petition (Civil) No. 400 of 2012, India:Supreme Court, 15 April 2014, available at: https://www.refworld.org/cases,IND_SC,5356279d4.html (accessed14 September2020]

⁶³ INDIA CONST.art14

⁶⁴ INDIA CONST.art15

⁶⁵ INDIA CONST. art 19

life” which includes an inherent right to dignity so the transgender community should be respected just as much.66

The court clarified that the third gender identity is based the perception that a person has of its own gender and not just biological characteristics. So, one cannot be discriminated on gender identity. So Article 15 and Article 16 of the Indian Constitution prohibit discrimination on grounds of gender, race, caste, creed, colouretc, the discrimination based ‘on sex’ also includes discrimination on the ground of gender identity, because sex means not just biological sex.67 68

On these lines, the court held that gender identification of a transgender who is in reassignment phase will not be based on ‘biological sex’ but on ‘psychological test’. The court expressly clarified that insisting on surgical procedures like SRS as a determinant of changing anyone’s gender is illegal. In reaching this conclusion the court referred to various foreign judgements such as Corbett v Corbett case of England, where it was observed that biological sex is fixed at birth and cannot be changed even by operative intervention.69 This judgement was not favoured . The court referred to the case of AB v Western in Australia.70  In this case the Gender Assignment Act 2000 of Australia was discussed. One of its Section that deals with the issuing of Certificate of gender after gender reassignment says that the condition of issuing the certificate will be that the person who has undergone the reassignment should believe in that reassigned gender. It was observed that gender is not just about chromosomes but also the ‘psyche’. Similarly, in the case of Attorney General v Otahui Family Court it was observed that a person who undergoes surgery cannot identify with their original gender.71

⁶⁶ INDIA CONST. art21

⁶⁷ INDIA CONST. art15

⁶⁸ INDIA CONST. art16

⁶⁹Corbett v Corbett [1970] 2 All ER 33

⁷⁰AB v Western Australia [2011] HCA 42

⁷¹Attorney-General v Family Court At Otahuhu [1995] 1 NZLR 603, (1994) 12 FRNZ 643 (HC)

The court held that transgender community will come under the category of “socially and economically disadvantaged group” and directed the government to treat them as per the provisions of Article 15(4) of the Constitution by providing reservations in case of education and employment.72

The court acknowledged the various sexual health related issues faced by transgender community and with regard to public health and sanitation, directed the government to provide HIV Surveillance Centres, separate public washrooms, and proper medical care in hospitals with a sensitised staff.

The court took note of how the transgender community is made to feel like they are untouchables and how important it is to improve their social and cultural life. The court directed the government to come up with ways to create public awareness and create sensitivity towards the plight of transgender community and integrate the transgender community into the mainstream society.

The court further referred to the report by the Expert Committee of Ministry of Social Justice and Empowerment published in January 2014 that dealt with issues of transgender community and stated that the recommendations of this report will be harmonised with the judgement and implemented accordingly within six months.73

⁷² INDIA CONST. art. 15, cl.4.

⁷³supra note 55

Critical analysis

In a diverse country like India, tolerance and acceptance for others is our strength.

The NALSA judgement was the result of in-depth reference by the court of various International Conventions and Treaties to understand the concept of ‘gender expression’ and ‘sexual orientation’. It is appreciable how the court interpreted the Indian Constitution in harmony with these provisions.

The root cause of the stigma and discrimination faced by transgender community is the notion of binary gender, that is, male and female being the only gender. The court by putting emphasis on ‘psychological test’ and declaring that SRS will not be a precondition to determines one’s gender is a very progressive step. Besides this allowed the court to open the gates for transgender community to avail a place in both civil and criminal law of India and have marital rights, property rights, voting and so on.

It is after this judgement that serious efforts are being taken for creating awareness and including the transgender community in the everyday life. After the NALSA judgement, the transgender community has been able to get their finger inked by voting in 2019 which is a first. Earlier they could cast vote only as a male or female, now they have their own category under which they will be registered as voters.⁷⁴The same has been made possible for other documents like Aadhaar card and passport. Another first has been in 2017, with the Regional Passport Office issuing a passport with a ‘T’ labelled on the column where one mentions ‘sex’.75 This is better than the ‘E’ that used to be there on other documents, ‘E’ signifies the term eunuch which some transgenders consider derogatory. In ticket reservations now, the IRCTC has also accommodated the third gender, this came after a petition was filed regarding non-inclusion of third gender in reservationbooking.76

⁷⁴Delhi’s transgender voters excited at voting for the first time under gender identity of their choice, The  Hindu, May 12, 2019,https://www.thehindu.com/elections/lok-sabha-2019/delhis-transgender-voters-excited-at-

voting-for-the-first-time-under-gender-identity-of-their-choice/article27108423.ece (last visited Aug 28, 2020)

⁷⁵State’s first transgender passport, The Telegraph Online, Nov. 4, 2017, https://www.telegraphindia.com/odisha/state-s-first-transgender-passport/cid/1391219 (last visited Aug 23, 2020)

⁷⁶ Jamshed Ansari v. UPSC, WP(C) No. 5994 of 2015

In a recent judgement by the Madras High Court, the “bride” in the Hindu Marriage Act 1955 was held to be inclusive of transgender woman.77 Very progressive judgements like these have come forth. Another one can be the case of a woman constable in Nangia v Superintendent of Police.78 A transgender woman police constable was terminated from her appointment as a woman constable after a medical exam which stated she is a transgender and not a female. The NALSA judgement was upheld, and court declared that such medical exam was a violation of her “right to self-identity.”

Due to this NALSA judgement, many cases are coming up for accepting modification in the name and gender of transgender people in their certificates for education and employment. One such case was Chanchal Bhattacharya v State of West Bengal where the court directed the Council for Higher Education to issue the aggrieved a new certificate with his changed gender and name.79

In this way the judgement has sparked hope for the creation of a better narrative for transgender community where they enjoy their fundamental rights. But this judgement comes with its own shortcomings that cannot be ignored.

The researcher feels that in this 130-page judgement the court could not accommodate the whole LGBT community. Not only this, but the judgement has also not clearly defined a ‘transgender’. It provides a comprehensive list of various identities still this list is not complete. A lot of categories are still an invisible part of non-traditional transgender communities, so this judgement did not address the misconceptions surrounding the term transgender.

As mentioned that the court did not cover the whole LGBT community and although it made a reference to Section 377 and the harm it causes, it stayed clear on the question of its validity and the issue of sexual intercourse. It is in 2018 that it was finallyreversed.80

⁷⁷Arunkumar v. Inspector General of Registration, W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019

⁷⁸Nangai vs The Superintendent Of Police W.P. No. 587 of 2014 and M.P. Nos. 1 and 2 of 2014

⁷⁹Sri Chanchal Bhattacharyya Vs. State of West Bengal &Ors. W. P. 30295 (W) of 2015

⁸⁰Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

The plight of transgender detainees or the brutalities that are committed by police were not discussed The court talk about public awareness to remove stigma and discrimination but should have given more directions for the upliftment of the transgender community in terms of their sexual health.

The government should provide proper sex education to ensure protection against STD’s and promote sexual wellness. The court has directed the government to ensure medical facilities for the transgender community, but the reality remains that medical practitioners and staff are unaware and not properly trained on the anatomy of the transgender body. Due to misgendering, the doctors have delayed in providing medical care to the transgenders in many cases.81

The Ministry of Women and Child Development which regulates the adoption process through the Central Adoption Rescue Authority has no guidelines for adoption by transgender parents. 82

It is very correct correctly said that this judgement is certainly a part finder if not a part breaker and it is obvious that this judgement is a game changer not just for the transgender community but a human right workers as well.

⁸¹ Zaria Gorvett, Why transgender people are ignored by modern medicine, BBC News, Aug. 17, 2020, https://www.bbc.com/future/article/20200814-why-our-medical-systems-are-ignoring-transgender-people(last visited Sep 18,2020)

⁸² Mini Muringatheri, Transgenders raise the adoption question, The Hindu, Jan. 4, 2020, https://www.thehindu.com/news/national/kerala/transgenders-raise-the-adoption- question/article30481170.ece (last visited Sep 8, 2020)

CHAPTER V

Critical analysis of; Transgender Persons (Protection of Rights) Act, 2019

 A private member’s Bill called the “Right of Transgender Persons Bill 2014” was introduced in Rajya Sabha when the NALSA petition was sub-judice.83 This Bill had a lot of anomalies due to which many of its provisions were omitted .It was introduced in Lok Sabha but Lok Sabha was reconstituted after the general elections of 2014 so the Bill lapsed. The Bill was introduced as “Transgender Persons (Protection of Rights) Bill,2016” and then later “Transgender Persons (Protection of Rights) Bill,2018” 84The Standing committee was referred to make some suggestions, but its suggestions were not considered. The Bill invited a lot of criticism from the transgender community and human right activists. Right from the way the Bill defines ‘transgender’ to the setting up of a ‘screening committee’ to determine the authenticity of one’s gender, it was riddled with disappointment.85

Firstly, it hampered the right of self-identification of the gender that the NALSA judgement provided. Setting up of a Committee on whose approval one will get a certificate of identification violates Article 14 and Article 21.

Secondly, the Bill criminalised begging which was not accepted by the transgender community whose livelihood depends on it due to the social exclusion they have faced and the resulting lack of opportunities.86

Thirdly, the NALSA judgement expressly gave directions to the Centre and State to include transgender in the “socially and culturally backward class” and provide them with relevant benefits like reservations. The Bill was silent on it.87

⁸³ The Right of Transgender Persons Bill, 2014, Bill No. XLIX of 2014

⁸⁴ Transgender Persons (Protection of Rights) Bill, 2018(Bill No. 210-C of 2016)

⁸⁵ ICJ Briefing Paper India The Transgender Persons (Protection of Rights) Bill, 2016 ICJ Briefing Paper India , https://www.icj.org/wp-content/uploads/2016/08/INDIA-TG-BILL-CRITIQUE-Advocacy-Analysis-brief-2016- ENG.pdf (last visited Sep 28, 2020)

⁸⁶Why the Transgender Community is Angry Over a Bill Meant to Protect Their Rights, The Wire, Dec. 19, 2018, https://thewire.in/lgbtqia/why-the-transgender-community-is-angry-over-a-bill-meant-to-protect-their-

rights (last visited Sep 20, 2020)

87 id

Fourthly, the Bill did not address sexual abuse and gender neutrality with full vigour.

No provision for rape or sexual harassment of a transgender was there. The Bill merely provided two years of punishment for sexual abuse.

Then it was silent on marriage, adoption, and property rights. The Bill was so disappointing and inadequate that there was protest made by the transgendercommunity.88

In 2019 when Lok Sabha was reconstituted, the Bill was introduced again by Thawarchand Gehlot the Minister of Social Justice and empowerment, in November 2019.It got passed and received presidential assent in December 2019.89 In April 2020, during the ongoing COVID-19 pandemic, the draft rules were released by the Government ofIndia.⁹⁰

Key provisions

1. Transgender was defined as someone whose gender does not match with that which was assigned at birth. The definition was expanded and now social and cultural identities like ‘hijra” and ‘kinnar’ were also included. The definition includes people with intersex variations, trans-men and trans-women, andgenderqueers.91
2. The Act prohibits discrimination against transgender community which is in spirit of Article 14 which prohibits “unfair treatment in access to education, employment opportunities both in public and private office, healthcare facilities, right to reside or otherwise occupy property.” The act provides that in case of discrimination in matters of appointment, recruitment, or promotion against a transgender person, the samewill be addressed to a “complaintofficer”.92

⁸⁸supra note 84

⁸⁹ Transgender Persons (Protection of Rights) Act, 2019 Act No. 40 of 2019

⁹⁰ Draft Transgender Persons (Protection of Rights) Rules, 2020 available at http://socialjustice.nic.in/writereaddata/UploadFile/draftrule1604.pdf(last visited Sep 28,2020)

⁹¹ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 § 2 Cl (k)

⁹² TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 § 3

3. Healthcare facilities for transgender community has been looked into as the Act provides for HIV surveillance zones and proper health facilities for people undergoing SRS. These health facilities include pre- and post-surgery care in the form of hormonal therapy and counselling. It provides for a “medical curriculum” which will be reviewed in a timely manner and also medical insurance schemes for transgenders.93
4. The Act provides for the formation of a “National Council for Transgender Person”. This will be like a policy think tank for transgenders which will assess the impact of legislation, policies and issues of transgender community and advise the Centre accordingly. It will have Union Minister for Social Justice as well as Minister for Social Justice as Chairperson and Vice Chairperson respectively and have members representing NHRC, NITI Ayog and representatives from the transgender community as well.94
5. To guarantee the right to self-identity, the Act provides that the transgender person can make an application to the District Magistrate for issuing a certificate of identity as a transgender person. 95There is also a provision for a revised Certificate in case of SRS surgery, the person will make an application attached with the certificate by the medical institution where such surgery took place to the District Magistrate whoafter being satisfied will issue the changed Certificate.9697
6. Welfare measures by the government are also mention which will ensure the full integration of transgender community into the mainstream society in the form of rescue, protection and rehabilitation schemes, vocational training, ensuring their participation in cultural and recreational activities. It also directs the appropriate government to hold programmes to sensitise people towards the cause of transgender community.98

⁹³ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §15

⁹⁴TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §16

⁹⁵ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §5

⁹⁶ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §6

⁹⁷ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §7

⁹⁸ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 §8

7. The act has listed down offences against transgender people such as forced or bonded labour, eviction of a transgender person from their residence, or denial of passage to public spaces. Several physical, economical, and emotional forms of abuses have also been laid down as the Act expressly addresses harm or injury affecting life, safety, and health. Punishment for the same is ranging from six months to two years along with fine.99

 Critical analysis

The motive behind Acts like Transgender Persons (Protection of Rights) Act, 2019 is to uplift the marginalised community which is the victim of systematic discrimination. Such Acts can go a long way in ensuring the integration of such marginalised communities into the mainstream society. The transgender community needs upliftment which can only be possible if legislations are implemented effectively. The previous Bill for transgender community had criminalised the act of begging which was a necessity for transgender community who face unemployment, this Act decriminalised the same which is a welcome change.

This Act has also addressed the previous lacuna of having to submit to a District Screening Committee. In the opinion of the researcher, there is no need for a committee like this to give assent to the district manager for the issue of identity certificate. This provision was dispensable after all it is the right of the transgender to self-declare and not the duty of any screening committee to determine anything. In a country like India where issues like HIV are so common yet so stigmatised it is appreciable how this Act provides for HIV surveillance zones. The medical curriculum provided in this act sparks hope for better service to transgender community now it all depends on theimplementation

Every coin has two sides this act still has a lot of drawbacks and lacunas that need to be addressed. To start with, when the first draft of the Bill was introduced, there was a lot of secrecy around it, the transgenders were not consulted, no surveys were done. The researcher is of the opinion that this is unfair to the transgender community for whose concern this Act is coming into force and they were only left out.100

⁹⁹ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 § 18

¹⁰⁰supra note 85

Secondly, the definitions provided in this Act are not adequate, “intersex” was defined but it is not a comprehensive definition, researcher is of the opinion that this definition has been provided just to appease the International community.

Thirdly, National Council for Transgender Persons is not adequately represented, there should be more transgenders in it instead of the mere five members this Act provides. This Council according to the researcher is without any teeth as its powers and functions are not adequately laid down so there is a lot of uncertainty.

Fourthly, as mentioned earlier it is great that the provision for District Screening Committee was removed, but there is a requirement for a review mechanism in case the transgender is the gender identity certificate. The researcher is also of the opinion that in giving the District Magistrate the power to issue the Certificate of identity, the Act is giving too much power to a single authority.

Fifthly, it is disturbing that this Act requires a person to undergo a SRS in order to change their gender whether to male or female as this is not in rhyme with the NALSA judgement which talked about how gender should be based on “psychological test”. Besides, insisting on a Certificate from medical institution or surgeon again hampers the right of self- declaration of those who do not wish to undergo surgery

Sixthly, it is disheartening that the sentences provided for offences and penalties in this Act are so light because, in IPC, the punishment for sexual violence such as rape is minimum seven years.101 The punishment for sexual violence in this Act is six months to two years.

Petition against these provisions and how they are inconsistent with the dignity of the transgender community was filed by Swati Baruah the first transgender judge of Assam.102 The researcher is of the opinion that this Act did not cover child laws, that is, adolescent transgenders. They are unaware of their sexuality and are the most vulnerable in that regard. It needs to be strengthened to address issues faced by transgender adolescents. Under IPC, child abandonment is a punishable offence under Section 317.103

¹⁰¹ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 § 375

¹⁰²Swati Bidhan Baruah v. Union of India WP(C) 51/2020

¹⁰³ THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 § 317

The transgender adolescents are abandoned during their teenage phase which is between 12 and 18 years. Age limit under the IPC for child abandonment needs to be increased to 18 years

Then the reservations that were directed by the Supreme Court to be provided are missing from this Act. Although the Act provides welfare schemes and other provisions, there is no clarity on how the funds will be allocated.

In April 2020, during the Covid 19 pandemic, the draft rules for the Transgender Persons (Protection of Rights) Act were uploaded by MSJE on the website.104 They were uploaded on 18^th April and the replies and feedbacks for the same were being accepted till 30^th April only. This is inconsistent with the “pre-Legislative Consultation Policy” (PLCP), 2014 which requires that such details of the proposed bill or rules must remain in public domain for a time period of 30 days.105 The researcher is of the opinion that providing the draft digitally was not a smart move as not everyone has access to internet, moreover, providing such Draft only in English language and no other local language means only limited stakeholders will be able to express their opinion.

¹⁰⁴supra note 90.

¹⁰⁵Ministry of Law and Justice legislative Department-Legislative Consultative Policy D.O. no. 11 (35)/ 2013- L1

CHAPTER VII

Conclusion

 After going through the historical narrative, one knows how the transgender community in India has been deprived and discriminated in basic entitlements since a very long time. The 2014 NALSA judgement gaslighted a watershed movement for the transgender community as the recognition of the third gender was long overdue.106 The movement of the transgenders was further strengthened by the decriminalisation of Section 377 of IPC¹⁰⁷and the coming into force the “Transgender Persons (Protection of Rights) Act, 2019.”108All these judgements and legislations provide a crucial opportunity to change the historical narrative and experience that the transgender community has and ensure that they have a life of dignity.

After going through the NALSA judgement and the Act, the researcher is of the opinion that the Act deviates from the NALSA judgement on many grounds that have been discussed in the previous chapter. The MSJE should redraft the provisions of the Act starting from the definitions of ‘transgender’ given in the Act.109 The Expert Committee should do a study of the term transgender as defined in the other countries and come up with a comprehensive definition, the same applies to the definition of ‘discrimination’.110 Further, the enforcement mechanism is missing from both, the judgements and the Act. The research feels that the National Council for Transgender must be given more teeth, it should have more powers so as to enforce obligations and put up timelines for the implementation.

The most vulnerable Section in the transgender community is the transgender adolescents in the age group of 12 to 18, who are dealing with questions about their sexual identity. The researcher is of the opinion that India should follow the footsteps of Argentina.

¹⁰⁶ National Legal Services Authority Act v Union of India AIR 2014 SC 1863.

¹⁰⁷Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

¹⁰⁸ Transgender Persons (Protection of Rights) Act, 2019 Act No. 40 of 2019

¹⁰⁹ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 § 2 Cl (k)

¹¹⁰ TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 ACT NO. 40 OF 2019 § 3

The law in Argentina provides that people over the age of 18 years can choose their own gender identity, undergo SRS without medical assent or judicial hassles, and get revised documents. Even children below the age of 18 years have a provision where with the consent of the guardian they can get the same done.111

 Almost all laws in India recognise only the binary gender and in many cases the laws are only female specific. The researcher feels that gender neutrality is a necessity, some of the sections of IPC that cover only ‘females’ should be changed to ‘any person’. Similarly, in Hindu Marriage Act 1955, Hindu Succession Act 1956 and other Acts that have gender specific provisions should be amended to include the transgenderpersons.

Very superficially so many welfare schemes have been laid out yet no comprehensive scheme on how the funds for such welfare measures will be arranged has been listed. The National Council for Transgender should cooperate with the appropriate government and set up a Fund with the collaboration of the key stakeholders and go forward from there.

The comprehensive medical curriculum and the medical insurance provided in the Act should be inclusive of psychological well-being that stems from the years of discrimination. Researcher feels that besides HIV prevention activities, one needs to address the structural problems that increase such risks. Mental health counselling, addressing alcohol and drug abuse and all such problems can be addressed starting from school level.

Sensitisation is the key so the government must ensure that transgender community is not discriminated against. Starting from schools and colleges, the school and college boards should be given training on how to accommodate transgenders. Similarly, medical schools should inculcate transgender is anatomy as one of the core subjects which will go a long way in tackling the problem of misgendering.

¹¹¹ Argentina Gender Identity Law TGEU. Available from: http://tgeu.org/argentina-gender-identity-law/( visited 11 August,2020)

There is a lot of grey matter concerning the recognition of gender identity, the correct age for recognising it and the requirements of Certificates. The years of social economic and legal exclusion has made the transgender community distrustful, due to which they do not approach the appropriate authority to avail the welfare opportunities and get Certificates for identity. The appropriate government should provide incentives to the transgender community to avail the schemes. This can be done by giving medical insurance to every transgender who approaches the District Manager for Certificate. This will encourage transgenders to get registered in a hassle-free measure and receive the medical insurance which is there right.

In such modern times where the world is advancing, discrimination due to sex and gender identity of takes us all 100 years back. The physical, psychological, sexual and emotional trauma inflicted on the transgender community worldwide cannot evaporate overnight which is precisely why it needs to be ensured that such grave human right violation does not occur again. The world today is a global village, every country and the international actors should be bound to respect and protect human rights of anyone and everyone.

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