On 25th September 2020, the Union Ministry of Social Justice and Empowerment notified the Transgender Persons (Protection of Rights) Rules, 2020 which removed the mandatory medical examination requirement that the previous draft of these rules (issued in July 2020) had created. The earlier draft was heavily criticized by the transgender community for taking away their dignity by virtue of mandating a third person (for instance, a District Magistrate) to verify and certify their gender identity. In addition to being an infringement upon their constitutional right to bodily autonomy and their protected right to privacy, the previous draft also flouted the provisions of the Transgender Persons (Protection of Rights) Act, 2019, which unequivocally reaffirmed the transgender persons’ right to self-perceived their gender identity. Consequently, in light of such criticism and unconstitutionality, the new rules now state that the District Magistrate could process an application for a transgender person to declare gender, based only on an affidavit submitted in that regard by the person and without any physical or medical examination.
However, an isolated reading of these rules does not authentically portray the entire spectrum of issues involved in this arduous struggle to establish an equal rights paradigm. To acquire a holistic perspective, one must begin with the 2014 Judgment of the Supreme Court of India in NALSA vs Union of India, wherein the apex court, for the first time, accorded the transgender community an equal constitutional status under the Indian legal matrix and recognized their fundamental rights under Part-III of the constitution to include, inter alia, right to gender equality and self-dignity importance. The non-recognition of such rights was perceived as a “human rights issue” and a capital violation of Article 15 of the Indian Constitution, which explicitly prohibits any discrimination on the basis of the sex of an individual.
Although in line with the cherished tenets of equality, liberty, and freedom of expression, the judgment was not complemented with any legislative framework that could operationalize the rights propounded by the court. This sought-after legislative clarity only ensued in December 2019 when the Transgender Persons (Protection of Rights) Act, 2019 was enacted with the aim of providing a statutory basis for constitutional rights and establishing procedures to be followed in enforcing them. Notably, the previous three drafts of this Act, introduced in 2014, 2016, and 2018 lapsed in the parliament and were condemned for their regressive provisions such as establishing a “screening committee” to ascertain if an applicant qualified as transgender. Consequently, the 2019 Act removed many such reprehensible provisions and sought to prohibit discrimination against transgender people while advocating for the introduction of welfare provisions for the historically marginalized communities.
Notwithstanding the multiple revisions, the 2019 Act and its associated rules of procedure, when tested against the touchstone of the NALSA judgment and the right to equality, dignity, bodily autonomy, privacy, self-identification, and freedom against unwarranted medical intervention, collapses colossally. To begin with, important terms such as “transgenders” and “discrimination” have been vaguely defined in that act. It not only allows for the inclusion of individuals with intersex variations into the category of transgender people but also does not lay down provisions for any civil or criminal remedy in the guarantee against discrimination. Moreover, in the case of sexual abuse of a transgender person, the act provides a punishment of up to two years imprisonment coupled with a fine. However, sexual assaults upon cis-women attract more stringent punishments that may even extend to life imprisonment. The extension of different punishments depending upon the sexual orientation of the individual does not exhibit any intelligible differentia and fails to satisfy the reasonable classification test and the standard of arbitrariness as envisaged by Article 14 of the Indian Constitution that guarantees equal protection of law to all persons. Another issue in this regard is that of the requirement of the transgender person to be a resident of the jurisdiction of the Magistrate for a minimum period of one year before filing the application to declare their identity as transgender. This raises two concerns: firstly, other certificates and licenses like the ones required in cases of a civil marriage or by the road transport department have a much lesser period of residence requirement (for instance, 30 days). This onerous one-year requirement has only been in place for transgender people. Secondly, the Expert Committee on Issues Related to Transgender Persons (2014) and the Supreme Court in NALSA Judgment opined that the transgender community faces ostracization from family, unemployment, and homelessness in the society and therefore, it is argued that it becomes strenuous and burdensome for them to reside continuously in an area for seeking certification. Moreover, it has been argued that the act is in violation of Principle 6, 12, 18, and 32 of the Yogyakarta Principles.
From a social welfare perspective, although the new rules advocate for welfare schemes, programs, and protection cells for transgender people, they remain enigmatically equivocal as to what exactly these welfare measures would be and what would be the time duration under which the state would be bound to implement them. Additionally, in a scathing attack on their right to privacy, the act does not place an explicit restriction on any authority to disclose confidential information regarding the applicants. Lastly, notwithstanding the observations of the apex court in the NALSA judgment that the transgender community is socially and economically backward and hence entitled to the benefit of affirmative action policies in education and employment, the act does not talk about the implementation (or lack thereof) of the reservation policy vis-à-vis the transgenders.
Therefore, it can be said that although the new rules, whereby the mandatory medical examination requirement has been removed, are a step in the right direction, the perennial struggle of the transgender community to secure for themselves an inclusive, equal, supportive, legally protected and respectful ecosystem still has a long way to go for the accomplishment of the constitutional guarantees of liberty, equality, freedom, and justice.
Ayush Mishra is an Advocate at the Hon’ble High Court of Allahabad, India, and a graduate of the National Academy of Legal Studies and Research, Hyderabad, India.
Suggested citation: Ayush Mishra, Restoring Dignity: Nuances of Transgender Rights in India, JURIST – Professional Commentary, October 12, 2020, https://www.jurist.org/commentary/2020/10/ayush-mishra-transgender-india/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org
