Transgender Person: Need for Special Provisions

Introduction

Transgender persons are not treated equally since they are not recognised by society. Transgender people are frequently abandoned by their families and society. They have fewer opportunities to make a living and fewer means of survival. However, via numerous laws and legal rulings, they have been granted the same rights as any man or woman. The Supreme Court deemed transgender people to be the ‘third gender’ in the case of National Legal Services Authority v. Union of India (2014). The Supreme Court ruled that fundamental rights guaranteed by the Indian Constitution apply equally to them. It was also determined that people have the right to self-identify as male, female, or third gender. The verdict called for transgender persons to be given preference in the workplace and schools, as well as the right for trans people to publicly display their gender identity without undergoing sex reassignment surgery.

In order to protect transgender people from being discriminated against, a special legislation by the name of the Transgender Persons (Protection of Rights) Act, 2019 has been passed by the legislature. The Act aims to solve the issue of discrimination faced by transgender people. It also provides for their welfare. Some of the key features of the Act have been discussed below-

Definition of a Transgender person

Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, genderqueers, and persons with socio-cultural identities, such as kinnar, hijra, aravani, and jogta. Intersex variations is defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body. Explanation to Section 2(10) of Bharatiya Nyaya Sanhita, 2023 also states that “transgender shall have the same meaning as given in the Transgender Persons (Protection of Rights) Act, 2019”.

Protection from Discrimination

The Act protects transgender people from various kinds of discrimination. Section 3 of the Act provides that discrimination against transgender persons is prohibited on certain grounds. These grounds include-

• The denial or discontinuation of education in educational institutes
• In employment or occupational opportunities
• Healthcare services
• Public facilities and benefits
• Unfair treatment with regard to the right to movement
• Unfair treatment with regard to the right to reside, purchase, rent, or occupy any property
• Unfair treatment in opportunities related to public or private offices
• Access to a government or private establishment in whose care or custody a transgender person is.

Certificate of Identity

The legislation follows the NALSA judgment and provides the right to self-identification to transgender people. A “certificate of identity” as a transgender person must be issued by the district magistrate (a designated government official) without the need for a medical or physical examination, and it guarantees the right to self-perceived gender identity. A person undergoing surgery to alter their gender to either male or female may apply for the issuing of a revised certificate showing the change in gender, according to the law.

Welfare Measures

The Act provides that the appropriate government shall take steps to secure full and effective participation of transgender persons and their inclusion in society. It shall take all the necessary welfare measures to protect rights and interests of transgender persons, and also ensure that the transgender persons have access to the government welfare schemes. It should keep in mind that all such schemes are transgender sensitive, non-stigmatising and non-discriminatory. It must also take steps for their rescue and rehabilitation, vocational training and self-employment, and promote their participation in cultural activities.

Right of Residence

Section 12 of the Act provides that every transgender person has the right to live with and be a part of their household. They also have a right to enjoy the facilities of such household in a non-discriminatory manner. A competent court may order the placement of the transgender person in a rehabilitation facility if the individual’s immediate family is unable to care for them.

National Council for Transgender Persons

The Act provides for the constitution of National Council for Transgender Persons by the Central government. The Council will advise the government on formulation of policies, legislations, etc. It will also work to redress the grievances of transgender persons.

Offences and Penalties

The Act not only provides certain welfare measures for the protection of transgender persons, it also provides for penalties for certain offences. Such offences include – forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. The period of imprisonment for these offences varies from six months to two years, and a fine.

Drawbacks

Though the Act is a significant step towards ensuring that transgender persons are protected against all kinds of discrimination, it has certain provisions which sparked a negative reaction from the concerned community. It has been a point of contention that even though the Act provides that transgender people will have the right to self-identification of their gender, in practice, it falls upon the District Magistrate to issue an identity certificate to them so that they can be entitled to various welfare measures. If a transgender person is denied a Certificate of Identity, the Act does not provide a mechanism for appeal or review of such decision of the District Magistrate. Thus, the provision of self-identification is only provided in the Act in theory, and not in real terms. This defeats the purpose of the NALSA judgment.

Right Against Self-Incrimination: Legal Framework

Article 20(3) of the Constitution protects individuals from being compelled to self-incriminate. In the context of transgender persons, the requirement of undergoing medical examination and producing proof of identity in Section 7 of the Act may be seen as contrary to this constitutional right.

Conclusion

In conclusion, the Transgender Persons (Protection of Rights) Act, 2019 is a very noteworthy step by the Government of India to consider the plight of transgender people. At least in law, the Act attempts to find recognition, inclusion and protection for transgender persons. It has tried to bring transgender individuals into the mainstream by introducing the “third gender” as in the definition of “transgender” in Section 2(k), providing legal protection against discrimination, and safeguarding their rights.

However, the Act falls short in a number of crucial aspects. It might be claimed that making transgender people go through identification processes like medical examinations, as well as study committees, defeats the idea of self-identification and respect for dignity as upheld in the NALSA judgment.

To develop more inclusive society, public and private sectors, and the transgender community should work collaboratively. Healthcare, schools and colleges, workplaces, should be gender sensitive and offer equal opportunities. The government should also look into the concept of self-identification more seriously, so that Acts like this Act are not only theoretically implemented, but also in practice. For transgender persons to achieve full equality, concerned legal professionals, educators, and employers must be sensitised. Most importantly, transgender persons should be given practical protections so that they can be integrated into the fabric of society.