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Transgender Persons (Protection of Rights) Act, 2019: Is Gender Fluid?

Description of the Theme/Introduction
In numerous nations, the prohibition of discrimination against transgender people, including verbal abuse and physical violence, as well as the protection of their human rights, are essential aspects of the legal system. However, the legal system's breadth is restricted, and it does not encompass social protection, healthcare, education, or access to goods and services, leaving transgender persons vulnerable.

Transgender persons have existed in every civilization, nation, culture, and social class since ancient times, but it is only in the modern world that their rights have begun to be recognized. Their rights are unprotected, and they are subjected to discrimination in a variety of ways.

Non-recognition of the transgender community's status as a third gender denies them the right to equality before the law and equal protection under the law given by Article 14 of the constitution, as well as the rights guaranteed to them by Article 21 of the Indian constitution. In India, Hijras and other transgender (TG) people confront a number of challenges.

Until now, Hijra/TG communities have been barred from participating fully in social and cultural life, the economy, politics, and decision-making processes. The lack of (or ambiguity in) legal recognition of hijras and other transgender people's gender status is a key factor (and consequence) for their exclusion. It is a significant impediment to people practicing their civic rights in their preferred gender.

The Supreme Court of India took a significant step forward on April 15, 2014, when it issued a landmark decision recognising transgender people as the third gender. The Supreme Court acknowledged the legal and constitutional rights of transgender people as a third gender in the National Legal Services Authority decision.

This decision focuses on the legal acknowledgment of the transgender community, based on the Yogyakarta Principles' definition, and defines the difference between gender identity and sexual orientation. The court deals with both of these groups, but only with the transgender one. The court answers two main questions. To facilitate legal rights, the first step is to recognise a third gender category for hijras or related cultural identities.

The second point is that transgender people should be able to identify in the gender of their choosing for legal purposes, which could be male, female, or a third gender category. The court held in the operative section of the judgement that hijras and eunuchs should be treated as a "third gender" to protect their fundamental rights. The Court has also ruled that transgender people have the freedom to choose their own gender identity.

The Supreme Court has ordered the government to regard transgender people as a socially and educationally underserved group that is entitled to quotas in educational institutions and public positions. They will have all legal rights as an unique "third gender" category, including the right to marry, adopt, divorce, succession, inheritance, and claim benefits under welfare programmes.

We don't see this particular segment of society participating in various institutions and programmes for a variety of reasons. Despite the fact that everyone needs education, health, job, housing, banking, pensions, and insurance, transgender people appear to have restricted access to these services under the current system. However, in order for a society to develop holistically, it is necessary to recognise the needs of each section and work toward human development.

Relevance of the Theme
In the mid-1990s, the grassroots community of gender-different people coined the word "transgender." Anyone whose identity or behaviour deviates from stereotypical gender norms is considered transgender. Transgender has evolved into a "umbrella" term that encompasses a wide range of identities and experiences, including but not limited to transsexual persons; male and female cross-dressers (sometimes known as "transvestites," "drag queens," or "drag kings"); and transsexual people.

"Gender variation," "gender difference," and "gender non-conforming" are some of the contemporary synonyms for transgender. A transgender person is defined as "a person who chooses to identify with a gender other than that which was assigned to him or her at birth." Definitions have been supplied by a variety of institutions and individuals around the world.

Many of the rights and privileges that other citizens of this country enjoy are denied to transgender people. Transgender persons face major human rights violations in the areas of education, employment, health care, voting and election contestation, as well as personal freedom, legal protection, family, and marriage.

Because they are denied equal protection under the law, they are highly vulnerable to harassment, abuse, and sexual assault in public places, at home, and in jail, as well as by the police. They are harassed at work, at hospitals, public restrooms, markets, theatres, train stations, and bus stops, among other places.

Despite the introduction of the Universal Declaration of Human Rights in 1948, which recognises all human beings' inherent dignity, equality, respect, and rights, transgender people are denied basic human rights. There is a need to take a human rights approach to transgender issues, focusing on how they work as an interaction between a person and their surroundings, emphasising society's involvement and removing the stigma associated with them.

There appears to be no reason why a transgender person should be denied basic human rights such as the right to life and liberty in dignity, the right to privacy and freedom of expression, the right to education and empowerment, the right to be free from violence, the right to be free from exploitation, and the right to be free from discrimination, among others. Furthermore, the Yogyakarta Principles cover a wide spectrum of human rights principles and how they apply to concerns of sexual orientation and gender identity.

The Transgender Persons (Protection of Rights) Act, 2019 forbids discrimination[1] on the basis of cessation, denial, or unjust treatment towards transgender people in educational institutions, employment, and other situations. Every institution must appoint a Complaint Officer to handle complaints about these standards being violated. Transgenders have the right to reside[2] and be welcomed into their homes If this is not the case, the criminal may be sentenced to a rehabilitation centre by a competent court.

The government should take steps to ensure that transgender people have access to adequate healthcare. HIV surveillance centres and sex-reassignment operations must be set up separately. Transgender people require comprehensive medical insurance coverage that address their health issues and routinely review their medical curriculum.

In order to get a certificate of identity[3], a transgender person must file a request with the District Magistrate. The certificate will be issued by the D.M. without any physical or medical examination being required. This certificate will serve as identification proof and will be documented in official documents. The Act also directs the Central Government to set up a National Council for Transgender Persons (NCT)[4]. The Minister of Social Justice and Empowerment would serve as the chairperson of this advisory group.

The offences[5] included under the Act are:
  1. Forced or bonded labour (However, this does not include the compulsory government services for public purposes)
  2. Refusal to utilise public facilities
  3. Sexual, physical, mental, verbal, or economic abuse
  4. Expulsion from their home and/or community
Penalties under the Act might range from two to six months in prison. There is a chance that a fine will be issued.

Literature Review
By collecting and evaluating essential legal and other documents such as pertinent decisions and publications, a complete literature study of the current situation of the legal status (gender identity) and legal rights of hijras/transgender people in India was undertaken. Information about transgender people's legal rights in general, and transgender people's legal rights in particular, was gathered and studied in various countries (particularly those with progressive laws on transgender people).

Similarly, academic and UN databases on legal issues and human rights of transgender persons and other sexual minorities were examined, and relevant papers were studied, in order to provide possible legal models for the recognition of hijras and other transgender people's gender status in India.

Review Example
The creation of a third gender category in a legal and political framework in Nepal as a case study In December 2007, Nepal's Supreme Court handed down a landmark decision in favour of sexual and gender minorities. The verdict soon gained notoriety for establishing complete, fundamental human rights for all "sexual and gender minorities," including lesbians, gays, bisexuals, transgenders, and intersex persons.

The article examines the relevance of gender legal recognition, focusing primarily on identifying documents, and discusses what the choice to create a third gender category accomplished. It describes how the Nepalese third gender was defined by the court and compares it to non-binary gender definitions found in academic literature as well as other cases and systems that overtly or tacitly allude to a third gender category.

It continues by exploring how non-male and non-female gender categories are endorsed and provided safeguards under international human rights legislation, as well as the ramifications of such protections, after mentioning the path to legislative implementation that has taken place in Nepal.

Critical Appraisal of the Act
This act, however, poses significant challenges. The term "transgender" is assumed to have had a narrow definition. People who do not conform to the norm are said to lack a grasp of the intricacy. Intersex and transgender are phrases that are used interchangeably. The term intersex has been added to the list of transgender people. Because an intersex person may or may not identify as a transgender person, this is a dilemma. In its report, the Standing Committee recommended that the Act include intersex people as well as transgender people. They proposed renaming the Act "Transgender and Intersex Persons (Protection of Rights)" to make it more inclusive.

The Act is only progressive in name. It is thought to have given transgender people the ability to self-identify. In reality, it has made it mandatory for transgender people to obtain evidence of identity from the District Magistrate. This goes against the notion of self-identification. Furthermore, the Act contains no provision for recourse. If the D.M. refuses to deliver the certificate, the public will have no recourse.

The certificate will be issued by the District Magistrate "after following such procedure and in such form and manner, within such time, as may be prescribed specifying the gender," according to the Act. However, there is no definition of "process"[6] in the Act.

In addition, the Act states that if a transgender person undergoes sex-change surgery, they must apply to the D.M. for a updated certificate. A certificate attesting to the surgery from the Medical Superintendent or Chief Medical Officer of the institution where the procedure took place is required to get the modified certificate. Only after the DM is satisfied with the appropriateness of the certificate granted by the Chief Medical Officer[7] is the revised certificate issued by the DM.

As a result, a deeper look finds that the Act does include a "implied and indirect" screening procedure for transgender individuals seeking a certificate. The Supreme Court has ruled that those states must recognise transgender persons as "socially and educationally backward classes" and provide them with various accommodations. Scholarships, fee waivers, and free facilities are just a few of the benefits available as recommended by the Expert Committee[8]. The Act, on the other hand, just mentions an "inclusive education system"[9] and makes no mention of the resources available.

According to the Act, a transgender offender can only be sentenced to two years in jail, no matter how terrible the offence is. Reprehensible behaviour, such as sexual assault or endangering the life of a transgender person, can result in a sentence of up to two years in jail. These offences were planned to be prosecuted under existing sections of the IPC. On the other side, the Act is a diluted version of the IPC. The Indian Penal Code stipulates a minimum punishment of seven years in prison for rape. As a result, a trans person's right to bodily integrity has been violated.

Guarantees under the Fundamental Rights of the Constitution
The Indian state policy, which previously only recognised two genders, male and female, has deprived the third gender of their rights as Indian citizens, including the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport, and, most importantly, the right to education, employment, and health care.

Their fundamental rights under Articles 14, 15, 16, and 21 have been stripped away from them. The 2014 National service authority v union of India[10] (NALSA) Judgment was the first time that transgender rights were reviewed, with the supreme court emphasising the need of protecting and maintaining transgender rights under the Indian Constitution's principles of Article 14, 15, 16, and 21.

Equality before the law, or equal protection under the law, is addressed in Article 14 of the Constitution of India. Article 14 clearly covers the male, female, and third gender within its ambit, implying that transgender people are entitled to legal protection in all sectors of governmental activity under the Indian constitution. Article 15 of the Constitution, which prohibits discrimination on the basis of religion, race, caste, or sex, includes the third gender as citizens who have the right not to be discriminated against on the basis of religion, caste, race, or sex.

Article 16 relates with equal opportunity in public employment since it broadens the definition of sex to include Psychological Sex and gender identity. Citizens of India, transgender people have the right to employment and equal opportunity in the workplace, and they should not be discriminated against because of their sexual orientation. Article 21 of the Constitution, which deals with the preservation of life and personal liberty, provides that no one's life or personal liberty may be taken away except by legal means. Transgender people have been denied their right to life and personal liberty for a long time. As an Indian citizen, transgender people should have complete legal protection for their rights and personal freedoms.

The case Navtej Singh Johar v. the Union of India[11] the central issue was the constitutional validity of Section 377 of the Indian Penal Code, which stated that: voluntarily carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life, or with imprisonment for ten years with a fine.

In this case, the petitioner asserted that Section 377 was unconstitutional under Article 14 because it was imprecise in the sense that it did not define carnal intercourse as against the natural order and there was no discernible difference between natural and unnatural consensual sex. Section 377 further violated Article 15 by discriminating on the basis of a person's sexual partner's sex, and it also violated Article 19 by denying the freedom to express one's sexual identity.

In this case, the Supreme Court ruled that Section 377 should be repealed, stating that homosexuality is a variant of sexuality, not an aberration. The Court went on to say that discrimination based on sexual orientation is a violation of the right to equality and the right to privacy since sexual orientation is an intrinsic aspect of self-identity, and that denying the following rights is a violation of the right to life.

Violation of Rights which need to be restored:
  1. Education:
    The education of transgender people is just as important as that of other male or female genders, but the social stigma that transgender people face causes them to lose interest and focus in their studies, and they develop a sense of being avoided, ignored, and shamed. Transgender students are frequently denied admission to educational institutions because the institutions do not recognise their gender identities.

    The Transgender Person (Protection of Rights) Act of 2019 protects their rights by requiring educational institutions supported or recognised by the government to provide education, recreational facilities, and sports to transgender people without prejudice.
     
  2. Employment:
    Transgender people have been subjected to workplace discrimination and job discrimination. They are subjected to discrimination in the form of invasion of privacy, refusal to hire, and harassment, which results in unemployment and poverty. To protect them from discrimination, the Transgender Person Protection Act states that no government or private entity can discriminate against transgender people in matters of employment, including recruitment and promotions, and that every establishment should designate a complaint officer to handle complaints related to the act.

    In the case of Nangai v the Superintendent of Police [12] the petitioner applied for a position as a female police constable. The application exams were held at the Tamil Nadu Uniformed Services Recruitment Board in Chennai. The petitioner's application was approved, and the Superintendent of Police in Karur issued her an appointment order. She underwent a medical test as part of her training at the Vellore Police Recruit School.

    On the basis of her chromosomal pattern and genitalia, the testing determined that she was transsexual. Her birth certificate, medical records, and educational certificates all disputed the results of the medical examination. The Superintendent afterwards ordered her to resign from her position as a lady constable. The petitioner's right to choose a different gender identity as a third gender in the future was upheld by the Hon'ble High Court based on the medical declaration, and the impugned order of termination from service issued by the Superintendent of Police was set aside to protect her right as a transgender person.
     
  3. Health Care:
    Health care for transgender people does not just relate to the medical procedures involved in transition; it also refers to a comprehensive condition of physical, mental, and social well-being. Health care also refers to a variety of basic and secondary health-care services, such as job opportunities, housing, and public acceptance of transgender persons. As a result of significant health inequities and barriers obtaining proper health care services, transgender people have suffered from depression, attempted suicide, assault and harassment, and even HIV.

    To protect them and assist them in living a happy life The Transgender Person (Protection of Rights) Act of 2019 declares that the government should take appropriate efforts to provide transgender people with health care, including separate HIV surveillance centres and sex reassignment surgeries, as well as complete medical insurance.

Experiences of people from the Transgender Community
"Growing up as a child, I felt different from the guys (since I was born as a boy) of my age and was feminine in my ways", said Laxmi Narayan Tripathy, a Hijra. "I was subjected to constant sexual harassment, molestation, and sexual assault as a result of her gender, both within and beyond the family, from a young age.

I was lonely and had no one to talk to or express my thoughts while coming to terms with my identity because of my differences. Everyone called me a 'chakka' and a Hijra all the time." She later joined the Hijra community in Mumbai because she associated with other Hijras and felt at home for the first time in her life.

A eunuch, Siddarth Narrain, has similar sentiments. He conveys his emotions in the same way he does when, "When I was in the tenth grade, I recognised that joining the hijra community was the only way for me to feel safe. My family discovered that I frequently encountered Hijras in the city at that time. When my father was away, my brother, with the encouragement of my mother, began thrashing me with a cricket bat. To get away from the beatings, I locked myself in a room. My mother and brother then attempted to enter the room and continue to beat me up. My relatives interfered and escorted me from the room."

Madhu (name changed), a 22-year-old Madurai transgender woman, explains why she no longer gets tested for the disease. She admits it "I don't have the courage any longer. What if they say I'm infected with HIV and AIDS? What will I do now? And how am I going to learn? If I'm ever diagnosed with HIV, I want to die."

Other members of the Transgender Community have shared similar life experiences. Their vulnerabilities force them to put their health and safety on the line.

Hypothesis
H1: The meaning and scope of the term Transgender. Critical appraisal of the Transgender Persons (Protection of Rights) Act, 2019 with respect to various fundamental rights violation guaranteed under the constitution.

H2: Several ambiguities and lacunae in the statutory language of The Transgender Persons (Protection of Rights) Act, 2019 impedes the exercise of equal rights granted to transgender people and leads to reinforcement of stereotypical gender notions.

H3: Considering several instances of discrimination faced by transgender people in multiple spheres of domestic and public life.

Methodology
A mix of doctrinal and non-doctrinal research was used to perform the study. The field of study has a substantial amount of useful data that may be found through online research. For this study, a thorough examination of sources such as journal articles, books, and reports formed the basis for preliminary research, which was then supplemented by historic decisions, international conventions, and interviews with general public and legal opinion on the subject. As a result, the research study may be stated to be based on the aforementioned material and to be a unique addition to the present research on the subject.

Sources of data - Primary Sources (general public opinion from all spheres and legal professionals) and Secondary Sources (public opinion from all spheres and legal professionals) are the two types of data sources that were included. Books, Journal Articles, Judicial precedents, International Conventions make a part of the latter.

Information collection plan - The thoughts and perspectives of individuals in the legal field were used in this study. Journals such as the Indian Law Journal were consulted, as well as judgements issued by Indian courts.

Time and place of data collection - Online (19th December- 24th December, 2021)

References:
  1. https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf
  2. https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019
  3. https://clpr.org.in/wp-content/uploads/2020/03/Trans-Act-2019-ppt.pdf
  4. https://www.researchgate.net/publication/322012741_Transgender_Status_in_India
  5. legal-recognition-of-gender-identity-of-transgender-people-in-in.pdf
End-Notes:
  1. Section 3 of the Act
  2. Section 12 of the Act
  3. Chapter VI, Section 4-7 of the Act
  4. Sections 16 & 17
  5. Section 18
  6. Section 6(1) of the Act
  7. Section 7 of the Act
  8. Ministry of Social Justice and Welfare," Transgender Persons (Protection of Rights) Bill, 2016", available at accessed 16 November 2020
  9. Section 2(d)
  10. (2014) 5 SCC 438
  11. Writ Petition (Criminal) No. 76 OF 2016
  12. (2014) 4 MLJ 12

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