By Smita Gupta and Paras Jain, Junior Editors
The Transgender Community has long fought the ostracisation and ubiquitous repugnance from all sectors of the society. The National Legal Services Authority v. Union of India Judgement was a much-needed respite for the Community. Trying to follow in the footsteps of the Judiciary, the Legislature has passed the Transgender Persons (Protection of Rights) Bill, 2018.
This Article seeks to establish how the Transgender Persons (Protection of Rights) Bill, 2018 is in conflict with and in direct violation of the Judgment delivered by the Apex Court in National Legal Services Authority v. Union of India, also focusing on the highlights of the Bill. The Article then traces the international scenario with regard to the rights of the transgender persons. Lastly, the provisions of the Bill are analysed in light of the 43rd Standing Committee Report.
NALSA Judgment, 2014
The Supreme Court in the case of National Legal Services Authority v. Union of India[i] (hereinafter NALSA case) held that a person’s gender identity is an integral part of one’s personality and is one of the most basic aspects of dignity and freedom of an individual.[ii] In the Judgment, the Apex Court laid down certain Guidelines, which were to be followed by the Central Government to ensure protection of the members of the transgender community. Following the judicial mandate, in 2016, the Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha.
The Bill not only suffers from many lacunas but also violates the guidelines laid down by the Supreme Court in the NALSA case. It violates various rights of transgender, primarily the right to self-determination of gender identity.
The Apex Court in the NALSA case held that the members of the transgender community have a “right to seek gender identity alternate to the one assigned at the time of birth,[iii] and non recognition of such gender identity violates the rights available under Articles 14, 15, 16, 19 and 21 of the Constitution.”[iv] In conformity with this, the Bill provides a transgender person the right to be recognised as a transgender person.
Highlights of The Bill
The 2016 Bill faced opposition on all fronts, and was termed as insensitive to the members of the transgender community. The Bill was then scrutinised by the Standing Committee of the Parliament in its 43rd report (Hereinafter, Report) and was passed after numerous amendments in 2018 in the Lok Sabha.
The 2018 Bill provides the transgender person with an option to apply for a certificate of identity as a transgender person.[v] The application for Certificate is made to District Magistrate who in turn refers it to the District Screening Committee.[vi] The District Magistrate then issues a Certificate of Identity to the transgender person on the recommendation of such Committee.[vii]
The Supreme Court in the NALSA case was sensitive about “how state and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of transgender persons.”[viii] The Bill aggravates this concern by not prescribing any procedure that is to be following by the District Screening Committee while dealing with the application sent to it by the District Magistrate.
However, the Government has been vested with the rule making power to prescribe the form and manner in which the Certificate of Identity is issued[ix], but no guideline or safeguard is provided to guide the government while framing the rules.
This inability of the Bill to provide the procedure that the District Screening Committee is to follow is a grave problem, as the process of obtaining the Certificate can itself become a source of harassment, and discrimination of the transgender community. On this point, the Bill nullifies the object it sought to achieve i.e., to provide for the protection of the rights of the transgender persons.[x]
Moreover, the composition of the Screening Committee is also troublesome insofar as it includes a medical officer. The Chief Medical Officer, District Social Welfare Officer, a Psychologist, or Psychiatrist, a representative of the transgender community and an officer of the appropriate Government based on nomination by the Government are members of the Screening Committee.
The Apex Court in the NALSA case categorically laid down that “no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement of recognition of their gender identity.“[xi] The inclusion of a Medical Officer in the Screening Committee implies that the person is subject to medical examination before a Certificate of Identity is granted. This is in direct violation of the right of self-perceived gender identity of the transgender persons.
Furthermore, the Bill fails to consider a wide range of problems faced by the transgender persons such as lack of property and electoral rights. The Indian legal system is based on the binary notion of gender identity. It recognises only the male and female gender, failing to recognise the third gender and is therefore discriminatory in nature.[xii] The Bill fails to improve this position, as it does not suggest any amendment in this regard.
Moreover, the maximum punishment provided for the offences punishable under the act, such as causing harm or injury, sexual abuse, physical and emotional abuse etc. is imprisonment of a term ranging from six months to two years, with fine. The Indian Penal Code, on the other hand, provides maximum punishment of 7 years or more for the offence of rape,[xiii] assault, or use of criminal force with intent to disrobe.[xiv] This is in direct violation of proportionality principle of Article 14 since different punishment is prescribed for same/similar offences.[xv]
The sentiment of the international community apropos the rights and status of the transgender community has largely been encouraging. The 1948 Universal Declaration of Human Rights extends the scope of its application to include the LGBT community.”[xvi]
The Human Rights Committee, which is charged with monitoring the execution of the International Covenant on Civil and Political Rights, urges States to record statistics on crimes of violence and discrimination along with the outcomes of investigations, prosecutions and remedial measures.[xvii] No such provision for recording of criminal statistics, to this effect, is provided for under the 2018 Bill. In the United States, local officials are not required to report killings of transgender persons to any central database[xviii] whereas Europe only has a private monitoring body called, ‘Transgender Europe’.
However, the international community, particularly Europe, in recent times, has been successful in eliminating the need for a medical identity proof or guardianship of a third party for granting the right of self-identity, with countries like Portugal, Malta, Sweden, Ireland, Norway and Denmark leading the bandwagon.[xix]
Yogyakarta Principles And Gender Expression Vis-A-Vis The Transgender Bill
The Yogyakarta Principles were established as a set of 29 Principles with 29 signatories including India, USA, UK, China and Pakistan to name a few.[xx] This was in response to the transgender community’s patterned abuse on the basis of their gender and sexual orientation. Started by a group of human rights experts, they were modified in 2017 and are called the ‘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’.
One peculiar feature of the Yogyakarta Principles is the inclusion of Gender Expression into the concept of Gender Identity. Gender Expression refers to “each person’s presentation of the person’s gender through physical appearance – including dress, hairstyles, accessories, cosmetics – and mannerisms, speech, behavioral patterns, names and personal references”[xxi] and may be different from a person’s gender identity. This gives freedom to the individual to adopt varying modes of expression without the need to conform to socially constructed ideas.
The Gupti language, adopted by the Hijra community in India, is an example of such ‘Gender Expressions’.[xxii] The 2018 Bill does not provide for the protection of such gender expressions adopted by the community.
While Section 9(5) of the Bill states, “The appropriate Government shall take appropriate measures to promote and protect the right of transgender persons to participate in cultural and recreational activities”,[xxiii] the wordings of the provision are vague and cannot be extended to include the protection of gender expressions of transgender.
The Yogyakarta Principles ensure the protection of cultural rights by creating a distinction between gender expressions and cultural activities. “The right to practice, protect, preserve and revive the diversity of cultural expressions”[xxiv] of all individuals equally is distinct from ensuring their “participation in cultural activities”, which is provided for under the Transgender Bill. The protection of cultural rights necessarily includes the right against discrimination.
However, the Bill fails to define ‘discrimination’. This leads to ambiguity over how various acts may or may not be considered a threat to the peaceful enjoyment of the transgender community’s cultural rights.
Standing Committee Report
The 2018 Bill has not incorporated multiple suggestions made by way of the Report.
The responsibility of “redressing the grievances of transgender persons” lies with the National Council for Transgender Persons, established under the Bill.[xxv] However, as the Report rightly suggested, such responsibility has been fastened onto the Council without identifying the procedure to be followed by the aggrieved for registering their complaints. The Bill does not address this oversight, either.
The Report has further opined that the National Council for Transgender Persons is not empowered to record evidence or call for documents, thereby lacking the powers of a Civil Court. This may lead to the Council acting as a toothless body.
However, once these issues are dealt with, the establishment of such Councils at the state level would be in the best interest of the transgender community as a whole. This would lead to more swift and ready redressal of grievances.
The path adopted by the Government of India does not move towards a progressive realisation of the rights of the transgender persons and has disappointed many. It diminishes the efforts made by the judiciary and international community for securing the rights of the transgender community.
The Bill is not only in violation of the ruling of the Apex Court in the NALSA case but also fails to deal with various important matters. For instance, whether a transgender person can marry, whether they can adopt etc. These questions arise due to the fact that many personal laws only provide for marriages between a male and female.
It is necessary that the members of the Rajya Sabha remove the drawbacks of the present Bill before passing it.This would be in the interest of greater realisation of rights.
 ‘Parliament Standing Committee Bats For Transgender Rights’, 25 July 2017, at https://www.livelaw.in/parliament-standing-committee-bats-transgender-rights-read-report/. (last accessed on 4 January 2018)
[i] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[ii] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[iii] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[iv] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[v] The Transgender Persons (Protection of Rights) Bill, 2018, s. 5.
[vi] The Transgender Persons (Protection of Rights) Bill, 2018, s. 6.
[vii] Supra note 6.
[viii] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[ix] The Transgender Persons (Protection of Rights) Bill, 2018, S. 23.
[x] The Transgender Persons (Protection of Rights) Bill, 2018.
[xi] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[xii] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.
[xiii] The Indian Penal Code, 1860, s. 376.
[xiv] The Indian Penal Code, 1860, s. 354B.
[xv] 43rd Report, Standing Committee on Social Justice and Empowerment (2016-2017).
[xvi] Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, para. 71 U.N. Doc. A/810 (Dec. 12, 1948).
[xviii] Maggie Astor, ‘Violence Against Transgender People is On the Rise, Advocates Say’, New York Times, November 9 2017, available at https://www.nytimes.com/2017/11/09/us/transgender-women-killed.html. (last accessed on 5 January 2018)
[xix] “Portugal becomes sixth country with right to self-determination of transgender identity as parliament approves new law”, The New Indian Express, 13 July 2018, available at http://www.newindianexpress.com/world/2018/jul/13/portugal-becomes-sixth-country-with-right-to-self-determination-of-transgender-identity-as-parliamen-1842715.html. (last accessed on 6 January 2018)
[xxi] Preamble, Yogyakarta Principles, available at http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf.
[xxii] Nidhi Dugar Kundlaia, ‘Queer Language’, The Hindu, November 30 2013, available at https://www.thehindu.com/features/magazine/queer-language/article5407840.ece. (last accessed on 4 January 2018)
[xxiii] The Transgender Persons (Protection of Rights) Bill, 2018, s. 9(5).
[xxiv] Principle 38, Yogyakarta Principles Plus 10, 2017.
[xxv] The Transgender Persons (Protection of Rights) Bill, 2018, S. 18(d).
**Image copyrights to Yana Paskova / Getty Images at https://www.nbcnews.com/think/opinion/trump-can-t-erase-transgender-people-memo-he-can-make-ncna922856.