Non-Recognition of Third Gender: A Failure of Indian Legislation

  • Abhinav Kumar
  • Show Author Details
  • Abhinav Kumar

    Student at Vivekananda's Institute of Professional Studies, India

Abstract

Over past many years the transgenders have been continuously supressed by the Indian society. This article examined how the Indian laws and recent amendments are incompetent, vague and discriminatory towards the people of transgender community. They have been deprived from basic Human Rights which should be available to every human being irrespective of their sexual orientation. This Research Paper looks into the arbitrary and vague laws and amendments which were to be made for helping and uplifting the transgenders, and also addresses some welcome changes which might alter the course of the concerned law.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 3, Page 121 - 131

DOI: http://doi.one/10.1732/IJLMH.26745

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

India’s most recent census yielded the first official count of transgender people, at more than 490,000 Transgenders. Activists in the country estimate this number to be six to seven times higher than that of the census[2]. A country consisting a huge number of trans population, without a doubt, should have specific and dedicated laws just like the laws which are assured to the people of other genders.

This fight for rights for transgender started way long back, by the help of trans activists and advocated of the LGBTQ communities. Back from 1999, when group of 15 attendees, organised India’s first ever LGBTQ parade, in West Bengal, Kolkata[3] the fight for rights of Transgender people started.

In 2016, finally a bill was proposed in the Parliament of India regarding the protection of the transgender people, The Transgender Persons (Protection of Rights) Bill, 2016[4]. This bill didn’t solve any of the problems which were actually faced by the people of transgender communities.

India is not a first country which has thought about the rights and protection of the people of transgender communities. Our neighbouring countries like Nepal and even Pakistan has laws related to the protection of the Transgenders. The Supreme Court of Nepal in the case, Sunil Babu Pant v/s Nepal Govt. (2008)[5], held that

“The fundamental rights comprised under Part III of the Constitution are enforceable fundamental human rights guaranteed to the citizens against the state. For this reason, the fundamental rights stipulated in Part III are the rights similarly vested in the third gender people as human beings. The homosexuals and third gender people are also human beings as other men and women are, and they are the citizen of this country as well… Thus, the people other than ‘men’ and ‘women’ including the people of ‘third gender’ cannot be discriminated on the ground of sexual orientation. The State should recognize the existence of all – natural persons including the people of third gender other than the men and women. And it cannot deprive the people of third gender from enjoying the fundamental rights provided by Part III of the Constitution.”

Also, the supreme court of Pakistan in 2011 in the case of, Dr. Mohammad Aslam Khaki & another v/s Senior Superintendent of Police (Operation) Rawalpindi & others[6], held that

“Needless to observe that eunuchs in their own rights are citizens of this country and subject to the Constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations including right to life and dignity are equally protected. Thus, no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned. The Government functionaries both at Federal and Provincial levels are bound to provide them protection of life and property and secure their dignity as well, as is done in case of other citizens.”

In India, the recognition of the transgenders as a third gender was accepted by the law in the year 2014 only. In 2014, the supreme court in the case of National Legal Services Authority v. Union of India[7], talked about the rights and protection of the transgenders in India and held that the transgenders are also citizens of India, therefore the Fundamental Rights which are given to the “citizens” and “people of India” would also be given to them and they would be treated equally. The Supreme court held that –

“Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self – identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”

“We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”[8]

II. The transgender persons (protection of rights) act, 2019

After the judgement of The Supreme Court of India, in 2019 a bill was passed in the Parliament of India, for the enhancement of the living conditions for the transgenders in India. This bill was passed by both the houses, i.e., Lok Sabha and Rajya Sabha. On Nov, 2019 Rajya Sabha passed the introduced bill, due to which on 26th Nov. 2019 a new law was made, for the betterment of the transgenders in India, this law was named as “The Transgender Persons (Protection of Rights) Act, 2019[9]”.

The main purpose of this Act was to bring upliftment, protection and sense of equality which was ensured by the Supreme Court of India for the Transgenders. But on the other hand, this Act was completely vague in nature. The Transgender Protection Act, was not helping the transgenders in any way, the law was highly insufficient and was full of vagueness.

In the year 2019, many transgender activists and advocates of LGBTQ communities raised their voices against the vagueness of the law. The law was supposed to help them, the law was supposed to uplift them and provide them equality but actually the law was exact opposite of what was actually needed and what actually the transgenders wanted. This law was so vague and unjustified that the day this law was passed by the Rajya Sabha, i.e., 26th Nov 2019, was marked as “The Gender Justice Murder Day”. This left a huge question mark on the law – making system of India, internationally.

III. Drawbacks of the transgender persons (protection of rights) act, 2019

(A) Lack of Involvement

One of the major drawbacks of the law was that no person of the transgender community was involved in the drafting committee of the Act. the govt. didn’t even ask the people belonging to the transgender community, openly about their needs, wants, necessities, and the problems that they were facing and what kind of help these people needs. The government only made assumptions about their needs and wants which was based on stereotypes that resulted in making a very bad and vague law which was not helping the transgenders in any way.

(B) Sex Reassignment Surgery

According to this new law, a transgender has to follow a Two – Step procedure. The law states that-

“A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents.”

“After the issue of a certificate under sub-section (1) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed[10].”

This certificate provides as a proof of Sex Reassignment of the transgender.

The Supreme Court of India recognised Transgender as a “Third Gender” and held that “recognition of one gender lies at the heart of the fundamental right to dignity. Legal recognition of gender identity is therefore, part of right to dignity and freedom guaranteed under our constitution[11].” Now after the judgement of the Supreme Court, it would be completely vague to ask transgenders to Reassign their sexual orientation for the sake of living a life with dignity and respect.

Rather than uplifting and helping the transgenders the new law is asking them to reassign their sexual orientation for living a life with dignity, even after the Supreme Court have recognised the transgender as a Third Gender. This new law is ultra vires and is violating the Fundamental Rights, given in the Part III of the constitution. It is violative to the Article 14, 19 and 21 of The Constitution of India.

Moreover, this Sexual reassignment is a very costly procedure and the people of the transgender community does not earn so much that they can undergo these kinds of surgery. Moreover, liberty and life with dignity should be free to a person and should not be dependent on a specific race or sexual orientation. Also, Sexual reassignment is not something that every transgender wants. This new law is completely ultra vires and violates the basic Fundamental Rights of the Transgenders.

 Also, in the case of National Legal Services Authority v. Union of India, the supreme court held that, –

“at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these TGs and violates their human rights[12].”

(C) Protection from Sexual Harassment –

In the Chapter 8, of the act, it talks about the protection of sexual harassment of the transgenders and laid out the punishment for any person who abuses or harasses the transgenders either physically, mentally or sexually. The law states that –

“Whoever, harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine[13].”

Now, according to the implunged Act, any person who sexually harasses or sexually abuses a transgender would be liable for minimum imprisonment for 6 months and the maximum punishment for sexually abusing a transgender is of imprisonment for 2 years.

Now replacing the sexual orientation here, with a cisgender woman. In India, if a cisgender woman is sexually harassed or sexually abused, the minimum punishment is of 7 years of Imprisonment and the maximum punishment for sexually abusing a cisgender woman is life imprisonment. Comparing it to sexual abuse/ assault of a transgender person, it is only 6 months which can be extended till only 2 years. The bill makes sexual abuse of a transgender person as a criminal and punishable offence but fails to clarify on the definition of sexual abuse. Moreover, the sexual harassment and sexual abuse is a very severe crime and the gravity of the offence is very high. But why there is a huge difference in the punishment for offenders in case of cisgender woman and a transgender person. Is it means that raping/ abusing a transgender sexually is a less severe offence? Is it ok or normal to sexually abuse a transgender? This implies that according to this new law, sexual abuse of a cisgender women will only be seen as a grievous offence, and not the sexual abuse of a transgender person. This again raises a huge question on the Right to Live with Dignity which is guaranteed to all the people, irrespective of their religion, sexual orientation etc. hence this new Act violates the Article 21, which is in the Part III of the Constitution of India that guarantees Fundamental Rights to Every Citizen of India.

(D) Medical Aid

The new implunged act has talked about giving the transgenders a help and upliftment in the sector of medicines. The act is completely silent on the procedure and what type of medical aid will the government provide to them. According to the act, only the medical aid which will be given to them, will be at the time of surgery of sex reassignment. This is completely vague, as being in the marginalised section of society, the transgenders only want a helping hand from the govt, through which they can be successful and could live a normal human life just as a normal citizen lives, without reassignment of their sexual orientations. This act only gives the transgenders medical aid if they are willing to reassign their sexual orientation which is completely violative to the Article 14 and 21 of the Constitution of India. The law, under the Constitution of India, ensures that equals would be treated equally – different would be treated differently (Art.14) and the right to Life and Liberty (Art. 21).

The transgenders face many health issues throughout their life and one of the most common heath issues faced by them is Gender Dysphoria. This is a disorder which can occur at any point of their life suddenly at any age. It created an enormous amount of pain in their body including the head and chest. This happens because of the change of hormones in the body from man to women or vice versa. This isn’t an easy thing to be get rid of and it needs a proper medication to be cured (though it cannot pe cured permanently).  The govt could have helped them in giving medical aid for these types of disorders which could be proven extremely helpful for them rather than making laws which actually are not helping the transgenders in any way.

(E) Reservation

In the case of National Legal Services Authority v. Union of India, the Supreme Court of India held that the transgender community would be now considered as a socially and educationally backward class. The Supreme Court directed the central govt to provide the transgenders with proper education and proper employment and all the benefits regarding education and employment which are provided to the OBC’s (leaving out the creamy layer). This judgement was declared in the year 2014, and the Act came out in the year 2019.

“the judicial role is not only to decide the dispute before the Court, but to uphold the rule of law and ensure access to justice to the marginalized section of the society. It cannot be denied that TGs belong to the unprivileged class which is a marginalized section[14].”

So according to this judgement even the supreme court of India assures that the transgenders should be kept in the preview of OBC’s, and the Supreme Court directed centre to make laws for helping the transgenders in the education sector and employment sector. But in the implunged Act, no direction was followed. Neither the transgender community was given reservation in the education or employment, neither they got any specific clause which would help them in the upliftment of transgenders educationally or in getting employment. The transgender’s community actually faces a lot of discrimination and it is very difficult for them to get mainstream education and to get mainstream jobs. Being marginalised and lack of jobs for the transgenders, they are forced to work as dancers, strippers, basically sex workers. “In India alone, the proportion of transgender people who sell sex is as high as 90 %[15].”

Even after seeing this reality, the govt didn’t bothered to give the transgenders reservation. Which indeed, if was given, could be a golden opportunity for them to prove themselves and would give them an opportunity to stand shoulder to shoulder with rest of the world.

Kerala is the first state in India which provided the transgenders reservation in the education sector. According to the guidelines by the govt, released in 2018, the universities in Kerala has to reserve 2 seats for the people of transgender community, under graduation and post – graduation courses. The state has also directed all the universities, to make sure that the transgender students are not discriminated amongst the other students and should be treated equally in every manner. The department of Higher Education released a statement stating that, “Due to social issues and pressure these students are often forced to discontinue their studies. This trend has to be stopped and we should bring them to the forefront[16].”

This is a great step taken by the Kerala govt, which would literally help the transgender people. Earlier the transgenders were forced to discontinue their studies and indulge into the sex works and other inhuman works. But now, they would be able to conquer many hights and would be able to hold their shoulders high in a crown just like normal human being.

The govt. of India should sincerely opt the view of the Kerala govt, who are actually making the laws for the upliftment and equality of transgenders.

(F) Marriage

The article 21 of The Constitution of India, ensures the right to life. The right to marry a person of choice comes under the ambit of right to life, and is an integral part of the Article 21 if the Constitution of India. This right cannot be overruled/ taken away from any person unless reasonable. The right to marry a person by choice is a universal right. This right is available to every person irrespective of their gender. The apex court in its 2019 judgement recognised right to choose a sexual identity as part of Right to Privacy and individual autonomy under Article 21, Right to Marry is a part of Right to life and is included under the same act in the constitution.

“The Human Rights Charter also includes the provision of right of marriage. “The Right to marry is considered to be a Universal Right which cannot be violated and it is available to each and every person irrespective of their sexual orientation[17].”

The Supreme Court in the case of National Legal Services Authority v. Union of India, recognised the right of transgenders to marry according to their own choice, by declaring transgenders as a “Third Gender.” The Supreme Court said that-

“It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on… All this can be achieved if the beginning is made with the recognition that TG as third gender[18]

The people of transgender community are also human being. Just like any other human being, they are also emotional being. Just like normal people, living their life with their loved ones, these people also want to start a family. But in solemnisation of a marriage, the procreation of a child is essential in every law. Be it Hindu law, or any other laws, procreation of child is essential. And the whole concept of procreation of child is defeated in the concept of transgender marriage. But this alone shouldn’t be a reason to violate the fundamental right of a person.

As stated above the Supreme Court also agrees with the trans marriage and advices the central to make laws for the solemnisation of transgender marriage. But again, in the implunged Act, there were no laws that assured the Right of marriage i.e., a fundamental Right guaranteed under Article 21, to the transgenders. Moreover, the Act was completely silent on the grounds of marriage, adoption, property, social security or pension of the transgenders.

In the case of National Legal Services Authority v. Union of India, the Supreme Court of India held that,

“There is a recognition to the hard realty that without protection for human rights there can be no democracy and no justification for democracy[19]

Internationally also, many of the countries has successfully amended and changed their personal laws. Just like with the case of India, earlier their laws didn’t recognise the marriage of the Transgenders as a legal marriage and no statues were made for their recognition. But, the progressive minds of the law makers, have helped many of the countries, in recognising the rights of the transgenders.

Australia, in 1961 had amended their personal laws and defined marriage as a union of 2 people. Similarly, in the year 2005 Canada also amended their civil law and defined marriage as a lawful union of 2 people. In the year 2013, the United Kingdom, also enacted their Marriage (Same Sex Couples) Act and stated a “relevant marriage” is a marriage between two marriage.

IV. Conclusion

The Transgender Persons (Protection of Rights) Act, 2019 was passed by the Rajya Sabha for the upliftment of the transgenders. But the Act instead of helping and uplifting the transgenders is depriving them of their important rights. There are no provisions for marriage, adoption and pension, social security etc. These are basic Fundamental Rights that a person/citizen of India is guaranteed to have. These are the basic Human Rights, which should be available to each and every person irrespective of their sexual orientations.

One of the major problems in India is the absence of gender-neutral laws. In India, what we need, are the new laws which should be gender neutral and a complete reconstruction, and necessary amendments should be made in all the statutes, including the Indian Penal Code for the accommodation of the gender-neutral laws.

For instance, the definition of rape in section 375 of The Indian Penal Code recognises only women as the victims of rape. The rape laws In India are not gender neutral. Fighting against this, a Supreme court lawyer, Rishi Malhotra, in 2018 filed a petition in the Supreme Court for demanding the gender-neutral laws in India. The last amendment in the sexual assault laws were made in the year of 2013, in which the definition of rape was widened but the amendment was completely silent on the gender-neutral laws. The Supreme Court of India, rejected this appeal for the demand of gender-neutral laws stating that the issue for making rape laws a gender-neutral laws falls within the ambit of Parliament completely. It is the discretion of the Parliament and Central Govt to make the rape laws gender-neutral.

India as a country, has failed to treat the people of transgender communities equally. The lack of gender – neutral laws, the lack of laws for the protection of transgenders, even their basic humanitarian rights have been ignored by the Indian Law makers. The fact that in 2014, the Supreme Court of India has recognised the transgenders as a third gender and in 2019 an Act has been passed for recognition and upliftment of the third gender. But this Act contains no provisions regarding the recognition of the third gender. Moreover, there is no inclusion of the third gender in the laws and statues which clearly shows that the legislatures do not really want to treat the transgenders equally, neither they really want the upliftment of the transgenders. The typical stereotype thinking is still prevailing in the mind of the law makers in India that the transgenders are the people form the red – light areas who are indulged only in the sex industries and don’t deserve the chance of living a normal life just like a normal human being.

One of the ways which would enable the transgender people to live a life with dignity lies within the legislative competence of the Parliament. Only the Parliament can carry out the amendments in all of the laws like in The Indian Penal Code, and the personal laws like marriage laws, laws for Adoption, and laws of Inheritance. These amendments should be in the preview of introducing gender neutral laws in India, or redefining the terms like person, husband, wife, bridegroom, bride, etc, and including the aspect of third gender in them. Though many amendments were made in the 2019 Act but these things which could be proven essential and important for the upliftment of the transgenders were neglected and were ignored by the law makers, which again raised a big question on the Indian law – making decision of the government.

There is an utmost need for the gender – neutral policies and legal reforms for the inclusion of the third gender and the laws for the people of the transgender communities, so that they can also be empowered and free in their private and public life. They are also entitled to live a happy and prosperous life just like normal people and normal citizens of India.

*****

[2] Rema Nagarajan, First Count of Third Gender in Census, Times of India, 30th May, 2014, A1

[3] Utsa Sarmin, The History and Activism of The LGBTQ Community in India, The Hindustan Times, 18th Sept, 2018,

[4] The Transgender Persons (Protection Of Rights) Bill, 2016, India

[5] Sunil Babu Pant V/S Nepal Govt. (2008), Writ No. 917 of the Year 2064 BS (2007 AD)

[6] Mohammad Aslam Khaki & Another V/S S.S.P, Constitution Petition No. 43 OF 2009

[7] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[8] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[9] The Transgender Persons (Protection of Rights) Act, 2019, Act Of Parliament (India)

[10] The Transgender Persons (Protection of Rights) Act, 2019, Act Of Parliament (India)

[11] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[12] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[13] The Transgender Persons (Protection of Rights) Act, 2019, Act Of Parliament (India)

[14] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[15] Maninder Dabas, Transgenders Are Forced into Prostitution, Indian Times, 10th July, 2016, Https://Www.Indiatimes.Com/News/India/Lgtbq-90-Of-Transgenders-Are-Into-Prostitution-But-Healthcare-Still-Remains-A-Distant-Dream-257526.Html

[16] Abhishek Anand, Reservation for Transgender, Hindustan Times, 04th July, 2018.

[17] Universal Declaration of Human Rights, Article 16, United Nation Human Rights.

[18] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

[19] NALSA V. UOI, 2014, Writ Petition (Civil) No.400 OF 2012

*****