Hijras constitute one of the most marginalised communities of India. They are victims of violence ranging from physical to sexual and are often left with no livelihood options rather than begging, sex work or collecting money from families on marriage ceremony or the occasion of a newborn. In contemporary India, the country’s legal justice system fails to address the issues of queer people and the existing laws for them are in sharp contrast to India’s obligations under the International Human Rights Law which is guided by the principles of universality, equality and non-discrimination. States must take positive measures to eliminate practices that tend to perpetuate discrimination. Merely guaranteeing de jure access to judicial mechanism is not sufficient to ensure that all individuals have de facto access to justice.
The legal framework can possibly be transformative in guaranteeing equity and justice. Their fortunes are determined by their looks to a large extent. Article 14 uses the expression “person” and Article 15 and 16 uses the expression “citizen” and “sex”. Article 19 has likewise used the expression “citizen”. Article 21 has used the expression “person”. All these expressions are “gender-neutral” clearly, referring to human-beings. Hence, they take inside their breadth Hijras/Transgenders and are not as such constrained to the male or female gender. We need to understand and adopt the concept of ‘gender neutrality in our daily gestures. The extreme social exclusion of the community has increased vulnerability to HIV, mental health diseases, deteriorating levels of education and employment ratio, and loss of social and economic advancement and this violence repeatedly goes unpunished.
As per the Census of India 2011, it is stated that the total transgender population in India is 4,87,803 and only 30,000 are registered with the Election Commission. The community has a 56.07% literacy rate compared to 74% for the general population. The low level of literacy rate is not a shocking figure, because most transgender children drop out of school due to bullying or discriminatory remarks. Prior to this, the Indian Census has never recognised transgender while collecting census data for years. A larger number of people has not been identified under this number because most of the parents deny identifying their children as belonging to the third gender. The estimated real population of transgender is 19 lakh according to a 2011 survey by NGO Salvation of Oppressed Eunuchs.
They are also human beings and they also pay the taxes so then why are they denied legal and constitutional rights. There is a consistent denial of their rights to be recognised as ‘person’. The first-ever study conducted by the Kerala Development Society on behalf of National Human Rights Commission (NHRC) in 2018 found that the rights of transgender people are ‘highly compromised’. The study highlighted the following points:
- 99% of transgender people are victims to social rejection on multiple fronts,
- The drop-outs percentage is more among transgender because 52% of them experience harassment at school by their classmates and 15% by teachers,
- 96% of transgender people are forced to do low-paid or undignified work and resort to other means of livelihood such as begging and sex work,
- 57% of the community people want to have sex reassignment surgery but they don’t have enough money for the same.
It lays down that India has failed to implement the Supreme Court’s guidelines from the NALSA judgement. Tamil Nadu is the only state that has taken some steps for the betterment of the community.
The Election Commission Report records that there are only 40,000 transgender voters registered i.e. just around 10% of their total population. This is because of the lengthy procedure involved in getting them registered in the electoral poll. They are required to get a legal document from the oath commissioner proving their credentials, then publish the same in at least two local newspapers to confirm them as transgenders and have to take signatures of their parents/guardians on the legal documents.
National Legal Services Authority v. Union of India, 2014 was the landmark judgement behind this legislation. The petitioners had claimed that since they are not given proper recognition, they are deprived of many rights and privileges to which everyone is entitled as citizens of the country. The rights of the transgender community have also been recognised by various international treaties and UN bodies. The case has also laid Yogyakarta principles that address human rights and also its application to issues of sexual orientation gender identity. The principles have been endorsed by UN bodies, Human Rights bodies, Government Commissions, Council of Europe, etc. The reference was also made to the laws existing in other countries. But, unfortunately, there was no legislation in the country to deal with the rights of the transgender community.
The related provision was also contained in the Indian Penal Code, 1860 under Section 377 which criminalised any carnal intercourse against the order of nature. In Suresh Kumar Koushal and Another v. Naz Foundation and Others, Section 377 was held constitutional overturning Naz Foundation v. Govt. of NCT Delhi. In 2018, the former case was overruled by Navtej Singh Johar v UOI case.
Obligation of India to follow international principles
Article 253 of the Constitution of India states that “the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention.”
The foundational instruments of International Human Rights law comprise of two official basic treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). The treaties were derived from the Universal Declaration of Human Rights (UDHR), whose principle they seek to protect. India has ratified these Covenants and thus, Parliament can make laws in line with municipal courts to implement them by applying the Doctrine of Harmonisation.
Therefore, the principles of Human Rights enumerated in this International Conventions and Yogyakarta principles must be recognised and incorporated in the domestic laws of the country. There are certain other instruments that India can look for such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2008, National Aids Control Organization (NACO), and National AIDS Control Programme IV (NACP IV).
The journey of Transgender Persons (Protection of Rights) Act, 2019
A PIL was filed in 2012 in Bombay High Court by Salvation of Oppressed Eunuchs (SOOE) in 2012 against the Union of India. In July 2012, Cabinet Secretariat decided that the Ministry of Social Justice and Empowerment in consultation with other ministries would handle the PIL and related matters thereto. Subsequent thereof, the work related to transgender persons has been allotted to the Ministry.
Expert Committee Report, 2014
An Expert Committee constituted for studying the rights and problems faced by transgender people submitted its report on January 27, 2014. Some of the key recommendations of the Committee are:
- At first to recognise ‘transgender’ persons as ‘third gender’ and to avoid usage of nomenclatures like ‘other’ or ‘others’. The right of a transgender person to be recognised as ‘man’, ‘woman’ or ‘transgender’.
- The certificate issued to a transgender person as recognition of his/her gender identity should be issued by State level authority on the recommendation of District-level Screening Committee headed by Collector/DM comprising of District Social Welfare Officer, psychologist, psychiatrist, a social worker, two representatives of transgender community and such other officials as the government deems appropriate.
- Change of gender in the birth certificate as ‘male’, ‘female’ or ‘transgender should be allowed after the age of 18 years or above and the certificate shall be valid for all official documents.
- An Umbrella Scheme to be formulated for the empowerment of the community.
- It recommended Crisis Counselling Services should be set up in line with Rape and Crisis Intervention Centres, formulation of Workplace Sexual harassment Policies, Anti-discrimination cells in educational institutions and Helpline for Career Guidance and Online Placement Support.
- Proper and strict disciplinary actions to be taken against police officers violating the rights of transgender.
- Stringent provisions under IPC to cover incidents of sexual assault, amendment to Section 153A to include unfavourable remarks made on gender identity.
- Scholarships, fee-waiver, free textbooks, libraries, resource centre, audio-visual materials to be provided by the government.
- Establishment of National Council for Transgender in line with national Councils for Senior Citizens.
The landmark judgement of NALSA v. UOI, 2014
The petitioners implored that non-recognition of their sexual orientation violates Article 14 and 21 of the Constitution. The expression “transgender” has been used to define a wide range of personalities, which emphatically recognize themselves with the gender opposite to their biological sex. They have likewise discovered solid chronicled nearness in Hindu mythology and other religious texts. However, the situation debased from the 18th Century onwards when Britishers enacted Criminal Tribes Act, 1871, which declared the whole community of transgender as ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’. The act also denied them of their civil rights denying them to act as guardians, make gifts or will, or adopt a son.
Directions of Supreme Court in NALSA judgement on April 15, 2014
- Hijras, Eunuchs, transgenders shall be treated as ‘third gender’ for the purpose of safeguarding their rights.
- The SC upheld their right to decide their ‘self-identified gender’ and the Centre and State government was directed to grant legal recognition to their gender identity.
- Centre and State government to grant reservation to the transgender community in cases of educational institutions and public employment treating them as socially and economically backward classes.
- To operate separate HIV Sero-surveillance Centres to address health issues of the transgender community and provide them separate public toilets and other facilities. It asked the examination of the Expert Committee Report in line with its judgement and implementation of recommendation within six months.
Private Member Bill: The Rights of Transgender Persons Bill, 2014
The Bill was introduced in the Rajya Sabha by Dravida Munnetra Kazhagam (DMK) leader, Tiruchi Siva as a private member’s Bill on December 12, 2014 and was passed by Rajya Sabha on April 24, 2015 with unanimous voice note. On this day, 40 members from the transgender community were present there from visitor’s gallery with the hope for recognition of their rights. The Bill was introduced in Lok Sabha on February 26, 2016. But, the discussion on the Bill was delayed. The provisions of the Bill are:
- Where the immediate family is unable to take care of the child, the Court shall make arrangements for the child to live with his/her extended family or such community in a family setting.
- The right to equal access at par with other students in educational institutions, provision of loans at concessional rates and conduction of vocational training and self-employment programmes for them.
- Provisions for proper shelter or livelihood, safe drinking water, sanitation facilities, pension schemes, and unemployment allowance.
- Sponsoring of transgender music and dance festivals and establishment of transgender history museum portraying historical experiences of them.
- Reservation of 2% in primary, secondary and higher educational students receiving aid from the government without discrimination in competing for seats open to all. The Bill also had the provision of reserving 2% of the vacancies in government establishments. Incentives were also to be provided to employees who conform to the reservation in 5 years of the commencement of the Act.
- The provision for Special Employment Exchange for Transgender.
- National and State Commission for Transgender Persons that also had the right to inquire suo-moto or on a complaint made by any person with respect to deprivation of rights of transgender person and take the necessary step with other authorities and was vested with all the powers of Civil Court to try the suit under Civil Procedure Code, 1908.
- Special Transgender Rights Court for speedy disposal of matters related to them.
Draft Bill by the Ministry of Social Justice and Empowerment (MoSJE), 2015
Meanwhile, the MoSJE on December 3, 2015 uploaded the draft Bill on the Ministry’s website seeking suggestions from the public. The Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha on August 2, 2016. The provisions of 2016 Bill are as follows:
- Definition of transgender as: “a person who is (i) neither wholly female nor wholly male; or (ii) a combination of female or male; or (iii) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.”
- Right of transgender person to perceive ‘self-identified gender’.
- Certificate to be issued by District Magistrate on the recommendation of District Screening Committee under Chief Medical Officer.
- Right of transgender person to change gender in their birth certificate and its future validity for all official documents.
- Right of Residence with family and immediate family members.
- Constitution of National Council for transgender persons for protection of their rights.
Standing Committee Report, 2017
The Bill was referred to 31-member Standing Committee on Social Justice and Empowerment headed by BJP MP Ramesh Bais on September 8, 2016. The Committee after five sittings during the examination of Bill and after taking into consideration of views of NGOs, Lawyer’s Collective, who represented the transgender community and their issues and concerns, etc. submitted the Report in Rajya Sabha on July 21, 2017. The Committee made the following recommendations:
1. The Committee found that Bill does not address the interests of intersex persons, the community that is completely different from transgender persons and thus asked to rename the Bill as “The Transgender and Intersex Persons (Protection of Rights) Bill, 2016. The Ministry in its reply stated that ‘transgender’ is an umbrella term and would include ‘intersex’ persons within its affinity. The Committee convinced by the reply agreed with the government.
2. The Committee recommended below-mentioned definition of ‘transgender’ as:
“‘transgender person’ means a person whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of sociocultural identities such as – kinnars, hijras, aravanis, jogtas etc.”
The Committee recommended including the definition of ‘discrimination’ in Chapter I of the Bill which covers the range of violations the transgender persons face in line with Yogyakarta Principles. It also found that there is no grievance redressal mechanism has been provided in the Bill where complaints can be made for violation of rights of transgender in any establishment or by an individual.
3. The Committee objected to the inclusion of medical officer in the Screening Committee and procedure regarding the issuing of certificates as violative of Article 14, 19 and 21 of the Constitution and opposed to the SC’s NALSA judgement guidelines for ‘self-perceived identity’. It also found that no qualifications have been prescribed for being the members of the Committee and found no role of District Social Welfare Officer in the Committee. It further urged that if at all the DSW Officer has to be included; he should have experience of five years while working with transgenders and must be well acquainted with their specifications. And if no such person can be found, a renowned person from the same field can be appointed.
4. The Committee also proposed to incorporate the ‘Right to appeal against the decision of the Screening Committee in the Bill.
5. The Committee urged the clear demarcation of the roles of Centre and State government for the welfare of the transgender persons to be added in the draft to avoid unnecessary delays.
6. It advocated to clearly mentioning in Bill that all establishments, whether public or private, irrespective of the number of employees should designate a Complaints Officer to deal with the complaints of transgender persons and outlay the duties and responsibilities of such officer.
7. The Committee recommended to replace Clause 13(1) of the draft Bill as:
“No child who is a transgender shall be separated from his or her parents or immediate family on the ground of being a transgender except on an order of a competent Court, in the interest of such child.”
And Clause 13(3) as:
“Where any parent or a member of his immediate family is unable to take care of a transgender child or the child does not want to live with them, the competent court shall make every effort, if need be, by an order, to place such child with his or her extended family, or in the Community in a family setting or rehabilitation centre.”
The Committee also asked to set up specific rehabilitation centres for transgenders, separate from those of male, female and children to cater to their needs. It also found that there had been no mention of inheritance rights of transgender person wherein they can’t be inherited on the basis of their gender identity.
8. It urged to include a provision to impose obligate on private educational institutions in line with Right to Education Act, 2009 and provide vocational and technical training, counselling and career guidance.
9. The Committee recommended setting of State Councils for Transgender Persons also, the comprehensive layout of the duties of Council and vesting of enforcement powers with the Council rather than reducing it to a mere advisory body.
10. The Committee urged in reference to the NALSA judgement of SC to extend reservation to transgenders under the category of socially and educationally backward classes.
11. The provisions for marriage, divorce, adoption, etc. to be incorporated
12. Provisions for establishment of public toilets, separate check zones in airports, institutions, etc.
13. Inclusion of definition of ‘person with intersex variations’ at the end of Chapter I in the Bill.
14. Provisions for penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants.
15. A separate exercise to be included in determining census to know the whereabouts of the community.
There was a lot of criticism from opposition members who denied to vote, despite that the Bill was passed in Lok Sabha in its original form without incorporating the recommendations of the Standing Committee on August 5, 2019 and Rajya Sabha on November 26, 2019. The President assented to the Bill on December 5, 2019 and thereafter it was notified in the Gazette of India. Thus, the Act came into effect from January 10, 2020 onwards vide a notification in the Gazette.
However, the number of questions has been raised against these two Bills substantially:
- Rule 67 of the Rules of Procedure and Conduct of Business in Lok Sabha provides that “When a Bill is pending before the House, a notice of an identical Bill, whether received before or after the introduction of the pending Bill, shall be removed from, or not entered in, the list of pending notices, as the case may be unless the Speaker otherwise directs.”
Similarly, Rule 112(2) says “A Bill pending before the House shall also be removed from the Register of Bills pending in the House in case a Bill substantially identical is passed by the House or the Bill is withdrawn under Rule 110.”
Despite the pending of Tiruchi Siva’s Bill and these rules, the government laid down its own Bill for consideration. It was clarified that once the government introduces its own Bill, it takes priority over any private member’s bill on the same subject matter and thus, the latter is asked to withdraw his/her Bill. The priority is accorded because the government’s bill is more comprehensive than any private member’s Bill since it is drafted by professionals and experts instead of amateurs. But, Tiruchi Siva did not withdraw the Bill and yet legislation was passed.
- The questions have also been raised against such a long pendency of the Tiruchi Siva’s Bill in Lok Sabha. It was alleged that the delay was intentionally made because the former Bill has put “too much onus on the government” as it had provisions for giving reservation to the transgender community being within the limit prescribed by the Supreme Court.
- It has been claimed that the legislation passed by the government dilutes all the provisions of Tiruchi Siva’s Bill and remains completely unidentifiable. It was also claimed that this Bill is a complete betrayal of the rights of the transgender community and is expected to reverse all the gains they have achieved through long years of struggle.
Criticism of the legislation
st of identity: The Bill gave the degrading incorrect definition of ‘transgender’ as: “transgender person” means a person who is:
(A) neither wholly female nor wholly male; or
(B) a combination of female or male; or
(C) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and transwomen, persons with intersex variations and gender-queers.
The definition is in contravention to the Supreme Court’s definition in NALSA judgement, the Tiruchi Siva’s Bill and an expert committee of Union Government. And the 2015 version of the draft bill gave the below-mentioned definition:
‘Transgender Person’ means a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as — kinnars, hijras, aravanis, jogtas etc. A transgender person should have the option to choose either ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/ hormones.
The present Act of 2019 embodies the above definition but has excluded the last line which gave the right to transgender persons to determine their sex. The legislation has set up a District Screening Committee to ‘certify’ transgender persons. The provision lays down that the transgender person has to get a certificate of identity from the District Magistrate which will be issued on the basis of recommendations of the Committee. This is in clear violation of their right to decide their gender and is also against the right to equality guaranteed to all citizens under Article 14, freedom of expression under Article 19 and right to life under Article 21. This is again against the SC judgement where it stated that identity in mind. The said act of issuing a certificate for recognition of their identity is unfair and arbitrary in nature.
No concrete procedure has been specified to be followed for legal gender recognition nor does it states and grounds to be followed by the Screening Committee. The presence of medical professionals increases the risk of some medical or biological tests for gender recognition and thus, violates the right of transgender persons drastically.
The provisions are contradictory to international standards also- including those of United Nations agencies, the World Medical Association (WMA), and the World Professional Association for Transgender Health (WPATH) – that calls for the separation of legal and medical processes for gender reassignment. This includes denial of evaluation by medical experts, psychologists or physicians. A report published by World Health Organisation and the Asia-Pacific Transgender Network in 2015 also recommended the government to take all legislative, administrative and other measures to recognise each person’s self-identified gender without recourse to any medical tests.
The stakeholders had also suggested that the Screening Committee must comprise only of three persons: one representative from the Male to Female (MTF) trans-community, one representative from the Female to Male (FTM) trans community and one from the Social Welfare Ministry. The argument of the Ministry that exclusion of medical officer would lead to misuse of certificates is again indistinct. Further, the Act provides to receive a certificate as ‘transgender’ persons and this is a blatant violation of their right to self-perceived identity.
The Act has also included persons with ‘intersex variations’ in the same definition, whereas there exist a huge difference between transgender persons and persons with intersex variations. Sex and gender are not the same. They are unrelated to each other. While ‘sex’ is a biological term to signify male, female and intersex, ‘gender’ is a profound feeling of oneself as a gendered being and might not have a balanced co-connection with sex. For example, somebody allocated ‘sex female’ during childbirth, in any event, when upheld by all physical, physiological and chromosomal proof of being female, may not self-distinguish as ‘gender female’ and vice versa.
On the other hand, intersex variety alludes to the manners by which one’s sex supposedly is not quite the same as the idea of sex as male or female- an element of one’s outside genitalia. Not all intersex people may recognize as transgender. What’s more, not every single transgender individual should be intersex.
Individuals with intersex variations will require access to clinical consideration on the occasion they decided to look for it, and work and non-discriminatory treatment. These are the places transgender people and those with intersex varieties policy overlaps.
The bill needs to grow the scope for intersex person’s privileges, and have separate provisos that cover the need of intersex people. For example, it must be carefully authorized that no specialist or emergency clinic perform clinical or medical surgery to assign a person as either the female or male sexual orientation, for intersex newborn children and kids. Further, it must be guaranteed that sex/sexual orientation markers are not recorded on birth certificates of intersex newborn children. They should be issued legal documents that reflect their preferred gender.
Nonetheless, the present bill has overlooked these purposes of contrasts furthermore, have lumped transgender and intersex people into one classification. This could prompt future issues, particularly an overemphasis on medicalization of personalities and articulations. The Community had even asked to rename the bill as ‘Rights of Transgender and Intersex Persons Bill.’
Most legal systems have failed to give due recognition to the gender of a transgender person of their choice. Similarly, here is exactly where the Act fails as it puts this power at the discretion of the Screening Committee. The Act has also failed to recognise the fact that there exist plural ways of gender identification. The committee proposed to use the term ‘gender identity’ and ‘gender expression’ in tune with current developments in international law and Yogyakarta Principles in relation to sexual orientation and gender identity. The principles include both who have gone transition through medical intervention from one gender to another and those who express their gender through dress, speech and conduct impliedly.
2. The setting up of the National Council for Transgender Persons also does not satisfy the community leaders as there exist doubt on the transparency of any council filled with bureaucrats as only advisory body and without any enforcement powers.
3. The legislation has also left aside the provision for reservation in education and employment to transgender persons as was envisaged in SC’s NALSA judgement and private member’s Bill.
4. Criminalising transgender crimes: The legislation criminalises begging for the transgender community. The transgender rights activist has opposed this provision in two aspects. The first is said there is no alternative present with the community members, so they beg or engage in sex work. It is to be realised that begging comes up due to structural differences which have led to a lack of educational and employment opportunities.
Thus, if legislation has criminalised the act of begging, it should have provided any other alternative employment or skill development. Because not only this provision is violative of human rights but also gives powers to authorities like the police to criminalise transpersons who beg on the streets out of compulsion. Secondly, begging is essentially a traditional practice of this community which they are authorised to protect. As the Standing Committee noted, the provision could have been made as “criminalising transgender persons begging of their own volition”.
The Committee also asked for “penal provisions against abortions of intersex foetuses and forced surgical assignment of the sex of intersex infants”. The legislation has provided negligible protection against various acts of hate crimes, atrocities and offences.
The legislation also fails to establish any redressal system for transgender persons working in any establishment or company. The argument of the Ministry that the National Council constituted would take care of the same and Indian judiciary is enough is completely vague and discriminatory in nature. In comparison to the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Local Complaints Committee (LCC) should be established in unorganised sector where less than 10 people are working for transgender people where they can reach out with their complaints.
5. Solving family issues: The Standing Committee notes the violence faced by transgender persons in their family and peer groups. Most transgender children are homeless and are at continuous risk of sexual and physical abuse. It provides that the State should exercise due diligence to prevent, punish an