‘Gender equality, targeted empowerment and Right to dignity’ is the most rapidly expanding hot talk trio among social justice issues but has it been explored even an inch below the surface levels in this decade? Have the law makers or the public opinion which they reflect ever explored the whole sphere of gender equality? Are they just stuck at man-woman equality? The Hon’ble Supreme Court Of India in the case of National Legal Service Authority v. Union of India, AIR 2014 SC 1863 (popularly known as NALSA judgement) had successfully put forward the need for protection of rights of those falling outside the conventional binary perception of gender and declared them as the Third Gender in order to recognise their much secure legal footing in the society. The Hon’ble Bench found “Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex”. The already said landmark judgement, widely celebrated by the transgender communities and activists, was then succeeded by a Private Member Bill introduced by Dravida Munnetra Kazhagam (DMK) leader Tiruchi Siva (Member of Parliament) which got passed in Rajya Sabha in 2015 but dealt a setback in Lok Sabha in 2016. The expectations raised by the Hon’ble Supreme Court in the NALSA judgement was then tried to be met ‘apparently’ by The Transgender Persons (Protection of Rights) Act, 2019 which seems to be a complete paradox.
The legislation which objects at protecting the Rights and Dignity of the transgender community recognises the right to choose and declare own gender identity, which is envisaged in Article 21 and Article 19 of the Constitution of India as mentioned by the Hon’ble Supreme Court in NALSA judgement, but fails to grant them a justified mechanism for this purpose. Section 6 of The Transgender Persons (Protection of Rights) Act, 2019 clearly confers upon the District Magistrate, the absolute power to issue certificate of ‘Third gender identity’ on the basis of an application which can even be denied without mentioning reason(s)’ in writing’. The Act further fails to lay any provision(s) or procedure in cases of denial. Therefore, it means that the state will declare gender of a person through DM which is in clear violation of freedom of ‘self gender perception’. Not only this, the Act has also failed to address the problem of those who want male identity being a female or vice versa as the certification will cause them to be third gender or Transgender unless the applicant undergoes prescribed medical procedure or surgery as per Section 7 of The Transgender Persons (Protection of Rights ) Act, 2019 followed by other verifying procedures. This involvement of state in verifying the gender of applicants, which is not a practice in case of other genders, is a threat to their dignity and freedom of self gender perception. A self declaratory legal mechanism (for e.g. Affidavit ), as provided in Argentina’s transgender protection legislations, could have supported the idea of gender justice in true aspects. The Act, in its good light, has laid much emphasis on inclusion of transgenders into mainstream but it does not have adequate representative mechanism for the whole community in the National Council as established under Section 16 of the Act itself. Further, it has criminalised certain acts relating to abuse and exclusion of transgender persons but is silent upon the offence of Hate Speech against this community which the Bill of 2014 had contained. The transgender community has remained an ignored victim of sexual and emotional abuse from the times immemorial and Chapter VIII of The Transgender Persons (Protection of Rights ) Act, 2019 has polarised them much deeply by putting their agony at a very low level. The provisions of Indian Penal Code, 1860 were made tighter to punish sexual offenders and the offences relating to modesty of women and rape now contain punishments which even include death penalty, life imprisonment and rigorous/simple imprisonment(s) (generally not less than 2 to 7 years for different offences). Despite this, Section 18 of The Transgender Persons(Protection of Rights) Act, 2019 just provides for maximum 2 years of imprisonment and fine for such offences. This so called special law is also silent on punishment for repeated offenders which is totally contrary to what the Indian Penal Code, 1860 in relation to such offences has actively laid down. Section 13 of the Transgender Persons (Protection of Rights) Act, 2019, although, provides for their inclusion in educational institutes funded or recognised by government but no incentives have been set up for such institutes or other institutes in order to expand this inclusion policy. Neither any policy for relaxing eligibility limits has been put forward to increase their representation in different sectors of employment.
Lack of other policies concurring to the idea of third gender community inclusion is also evident as the legislation which clearly disregards and prohibits the exclusion of the said community from public places has not even a single adjacent policy by the Government for special facilities like Gender Neutral Toilets in public places. Domestic Violence is a major problem that this community is vulnerable to and there are no special provisions or even penalities that this Act contains to protect and secure them from an offence which is strictly punishable under some special laws and provisions protecting women (e.g. The Domestic Violence Act, 2005; Section 498A of Indian Penal Code, etc).
The remarkable NALSA judgement of the Hon’ble Supreme Court in 2014 had kept a series of legitimate expectations on the shoulders of the Parliament of India, which in haste of drafting numerous laws in a single session could not meet the highly applauded standards of the judgement and gave the society of India less of an incompetent enactment and more of a paradoxical phrase in form of Transgender Persons (Protection of Rights) Act, 2019 which is insufficient to protect this Gender.
“Gender Spectrum is very wide and we need to understand the need for reformation beyond the lines of already recognised binary majority in order to achieve true Gender Equality”
This article has been written by Pranav Santvan, 2nd year B.A. LL.B. student at University Institute of Legal Studies Shimla, Himachal Pradesh University
Also Read – Gender Neutrality of Laws: The Future of Social Justice in India
