Fight For Their Rights: Implication Of The Transgender (Protection Of Rights) Act, 2019.

By Tamasi Biswas

SCC 438.

We always try to avoid circumstances that lead to agony and distress. On the different side of the coin, there are some people living in the society who are constantly on a struggle to establish their identity. The fear of being judged, neglected, tormented and being tortured wraps and moulds their entire life. It ruins their childhood, embarrasses their youths and results in a life which they are bound to abhor. In a pavement of struggling with society, family and friends, they sometimes end up hating their own self. We call them the transgender. We seclude them the moment we realize they are different from us. Different, definitely different, but only to the extent their patience and courage allow us to. I am lucky to have a parent who stand by me, no matter what happens. And then I look at a parent having a transgender child, not struggling against the society to make his child feel good, rather struggling against the child to make their status feel good. I too believe, it is not as easy done as easy to be said. But, somewhere it shall start. Somewhere, they shall feel secure. Somewhere, they shall feel the positivity that helps a life to lead.

Gender, refers to the combination of characteristics, expectations and roles usually associated with biological sex- often placed on a spectrum between masculinity and feminine. Gender identity is the self-image that one has about one’s own gender as masculine, feminine, or otherwise. Often, people assume that gender identity is congruent with biological sex; they believe that a female will identify as feminine, and a male will identify as masculine. However, this is not true for everyone, since some people with male biology feel strongly feminine, and some with female biology feel themselves to be masculine. Others do not consider their gender to be either feminine or masculine, but a blend of both; still others feel that they are neither masculine nor feminine, but some other third gender. It is important to remember that gender is a malleable and variable category.

The concept of not feeling comfortable in one's birth-assigned gender has been around since ancient days. Kinnar or Hijra people have historically been regarded as close to the gods in “Indian mythology”. In India, there has been a long-standing tradition of Kinnars coming to weddings or a child’s birth to offer blessings. It is forbidden in the Hindu religion to abuse a Kinnar, let alone hurt them physically. Going back to the epics of “Mahabharata” and “Ramayana”, we come across numerous instances of the third gender holding a significant position in our myths.

Transgender people are treated as strangers to society. It's quite puzzling to see that many centuries later; people still treat transgender people as an alien-like nature. Transgender people are discriminated on an almost regular basis. According to a study, a group of transgender people who have jobs and are prone to workplace-environment opinions that many respondents experienced harassment from co-workers and employers. Nearly 29% of the group experience verbal abuse and harassment in the workplace environment, and about 4% received physical abuse. About 7% experienced threats, and about 27% experienced some sort of different treatment due to their gender non-conforming ways. In another study, it was found that being mistreated in the school years would have a negative effect on future outcomes relating to employment.

In 2014, the Supreme Court of India delivered its judgment in National Legal Services Authority v. Union of India (also known as, NALSA v. UOI), in which it recognized the rights of the transgender persons in India and laid down a series of measures for securing transgender persons' rights by mandating prohibition of discrimination, recommending the creation of welfare policies and reservations for transgender persons in educational institutions and jobs. The judgment upheld the right of a transgender person to self-perceived gender identity guaranteed by the Constitution of India, in the absence of sex reassignment surgery. The Rights of Transgender Persons Bill, 2014 is a proposed Act of the Parliament of India which seeks to end the discrimination faced by transgender people in India. The Bill was passed by the Council of States on 24 April 2015. It was introduced in the House of the People on 26 February 2016. The Bill was introduced in the Rajya Sabha by “Dravida Munnetra Kazhagam (DMK)” leader “Tiruchi Siva” as a Private Member's Bill. The bill was unanimously passed on 24 April 2015 in the Rajya Sabha, where the Opposition had the majority but also received support from the treasury bench. The move was welcomed by LGBT-rights activist Simran Shaikh. The Bill is considered historic as for being the first private member's bill to be passed by any house in 36 years and by Rajya Sabha in 45 years. Finally, on 26 February 2016, the bill was introduced in the Lok Sabha for debate by “Biju Janata Dal (BJD”) leader “Baijayant Panda”. Panda argued that the bill would help extend constitutional rights and end the discrimination against transgender people, allowing them to live a life of dignity. BJP leader Jagdambika Pal also supported ending the discrimination against transgender people.

The judgment is being passed a long while. Even the legislature has passed an act in conformity to the judgment. But what is the implication rate put forward by the country’s administration regarding the upliftment of the third gender? Only some people having influence are getting the opportunities’ to claim their rights but the rural people are still standing on the same line as they were years back. The Act however is not warmly welcomed by the people of their community as a whole. They went on to protest against the bill claiming that “the unfairness with which history has dealt its hand would only be corrected through an active effort of the state, to recreate a discourse, the primary requirement being consultations with the community”. The Transgender Persons Bill, 2019 fails the community on various accounts, specifically:

• It lacks a proper definition of the term ‘transgender’ or the ‘third gender’;

• ‘Obligations by the appropriate government’ suffers from the same issues as the chapter on prevention of discrimination. The lack of any kind of punitive action against the state, or funds apportioned for such schemes, significantly raises questions on the efficacy of such provisions;

• The clause of ‘rescue, protection and rehabilitation’ has to be read in context of the experience of Trans persons in rescue/shelter homes. The amount of abuse, of various forms—mental, physical, emotional and sexual, faced by trans persons has had the community being extremely apprehensive about the manner in which shelter homes are established and run;

• Instead of protecting mechanisms from those who bent on violating our identities, bodies and lives, a merely restricted mode is imposed on the transgender by this bill;

• The provision of issuing papers is unclear. The elemental question that arises is that as to what are the documents that would allow transgender persons to be recognised with regard to their identity as a transgender person.

• The Transgender Persons Bill stipulates a complaint officer designated to deal with complaints under this law. The process of having a complaint officer is completely unclear, it could be through nomination, election or any other process, but as of now, the process of having the complaint officer is nonexistent.

• The restriction of movement with regard to trans persons in separating from their parents and allowing a person to move out only through an order of ‘a competent court’. The freedom to move and have a chosen family has been effectively restricted and dismantled through this clause. Furthermore, the only alternative made available to the community other than the family is a rehabilitation centre, the errors and fears of which have been reiterated multiple times.

The Transgender persons’ own opinion:

“THE TRANSGENDER PERSONS BILL HAS COME TO PARLIAMENT IN THE CONTEXT OF APATHY, NEGLECT AND SECRECY. A SERIES OF BETRAYAL OF ASSURANCES AND A CONVOLUTION OF A LAW THAT WOULD DO NOTHING FOR THE TRANS COMMUNITY BUT WOULD RATHER SNATCH AWAY THE BARE MINIMUM THAT EXISTED.”

“FOR YEARS, WE HAVE STAYED AND LIVED INDEPENDENTLY WITH SUPPORT FROM THE COMMUNITY, AMIDST THE DISCRIMINATION AND VIOLENCE. WE DON’T NEED AN UNNECESSARY POLICING OF OUR EXISTENCE BY THE STATE. DO NOT RESTRICT OUR LIVES; WE NEED PROTECTION MECHANISMS FROM THOSE WHO BENT ON VIOLATING OUR IDENTITIES, BODIES AND LIVES.”

The fight is not new. The struggle is not yet over. The government cannot reach a conclusion unless they consult those who are going through the pain. The pain is a lifetime ache unless properly dealt with. No imposition- good or bad, restriction or reservation can heal their lifelong demand. All a person wants is a dignified life with equal opportunity. A life where they can freely move without being judged, without being a topic of gossip and giggle - a normal life. A life with family, a life with education, a life with job, a life with security and ultimately a life of ease and dignity, which reminds me of our very own Article 21, which being said is easy, but we are very far from its destination.

By Tamasi Biswas