The Transgender Persons (Protection of Rights) Act - Legal Analysis

With the scrapping of Section 377 as well as the larger number of pride parades throughout the nation with ever larger populations attending them, recent years in the eyes of many have been landmark years in terms of achieving equality for the LGBTQIA+ Community. And even though the path ahead is still very long, actions are already being taken, it seems, to undo what all has been done. One of these actions is the passing of the Transgender Persons (Protection of Rights) Act, 2019, which ‘promises’ to ‘attempt to uplift the transgender community’. But, will it? This article aims to answer that question by taking a deep dive into the provisions of the act and explain why its provisions as well as the act as a whole are deeply problematic.

Firstly, the law defines a ‘transgender person’ as “someone who does not match with the gender assigned to them at birth, is genderqueer, is a part of the kinner, hijra, aravani, jogta community or is a person with intersex variations.” However, what this law fails to take into consideration is that the term ‘intersex’ and the term ‘transgender’ are not equivalent or interchangeable. A transgender individual is one whose gender does not align with their sex while an intersex individual is a person who is born with reproductive organs or sexual anatomy that does not fit the boxes of ‘male’ or ‘female’ very clearly.

Not every transgender individual is born with intersex variations and not every person born with intersex variations is a transgender person.

However, a basic and common mistake that the act makes is the distinction between the terms ‘sex’ and ‘gender’.The World Health Organisation’s regional office for Europe describes ‘sex’ as the characteristics that are biologically defined, whereas ‘gender’ is a concept based on socially constructed features. They recognise that there are variations in how people experience gender that are based upon self-perception and expression, and how one behaves. However, the act throughout all of its provisions conflates the two terms, legitimizing the misconception that the two mean the same thing.

The act also outlines an extremely problematic process of getting oneself declared as a ‘transgender individual’ and/or belonging to another gender. First, an individual has to submit an application along with requisite documents {highlighted in the Draft Transgender Persons (Protection of Rights) Rules 2020, discussed below} to the District Magistrate of the locality they reside in, asking for a certificate that declares them as a ‘transgender individual’.

Then, to get oneself declared as belonging to another gender, the person HAS to undergo ‘Gender Affirmation Surgery’ (which is not something everyone wants to do and is also cost prohibitive), and an application along with a certificate sent by the Medical Superintendent or Chief Medical Officer of the medical institution where the operation was conducted must be sent to the District Magistrate who upon being ‘satisfied’ upon the legitimacy of the certificate may then allow the person to change their gender in all legal documents.

The important thing to keep in mind is that this act only takes into account two genders: men and women while ignoring the multitude of other trans gender identities like non-binary, agender, genderfluid etc.

Now, what needs to be understood is that this law is in clear violation of the 2017 Supreme Court Judgement that held ‘Right to Privacy’ as a fundamental right. The judgement stated that if the violation of privacy under a specific law is deemed unnecessary, then the law is deemed illegal. Now, according to the 2014 NALSA judgement given by the Supreme Court, the power of self determination is imperative when it comes to declaring one’s own gender. The judgement also stated that compelling or forcing an individual to undergo ‘Gender Affirmation Surgery’ for changing their gender is illegal. This clearly demonstrates that this provision of the act is unnecessary and is thus, in clear violation of ‘Right to Privacy’, which as stated before, is a right that now holds a statutory position and goes completely against the 2014 NALSA Judgement.

In addition to the Transgender Persons (Protection of Rights) Act, 2019, the Draft Transgender Persons(Protection of Rights) Rules, 2020, was also released. It highlighted many logistical processes needed to be properly established for the proper implementation of the act, one of which was that one of the documents that needs to be submitted for a certificate of Identification is a psychologist’s report which is again against the very principle of Self - Determination by fully dismissing the individual’s agency and ability to know what is right for them.

Even more, as highlighted before, applications can be made ONLY to the District Magistrate of the area that an individual has been living in for a year or more. This is deeply problematic. The transgender community is deeply ostracised and in many occasions upon coming out, individuals have been kicked out of their homes and thrown to the streets leading to them having no documentation in the first place. This often leads to them having to live in extreme poverty due to them not being able to avail employment either due to the lack of documentation or more often, societal ostracisation which in turn, contributes to them having no documentation. On top of that, due to the likelihood that they are living in poverty, it is very unlikely that a transgender individual will live in a residential address in the first place, let alone for an extended period of time. Thus, submitting an application to be recognized as a transgender individual to the District Magistrate becomes extremely unlikely and incredibly tough for someone who doesn’t technically ‘live’ in a place.

The act also states that whoever harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender individual or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, is to be punished by imprisonment for a term to not be less than six months and may extend to two years and with fine.

Why is this problematic? Well, if a cisgender woman is sexually assaulted, then the perpetrator is jailed for a minimum of seven years, a sentence which can be extended to a life sentence. Thus, under this law, the maximum punishment for someone who abuses a transgender indivual is almost only 1/4th of the minimum punishment for an abuser of a cisgendered woman.

The law also states that if a family is unable to take care of a transgender individual, then the person may be moved to a ‘rehabilitation center’ which denies them the opportunity to live with their community. Even more, with the terrible reputation of many rehabilitation centers, the move may not in many occasions be preferable and with no personal agency being provided to the individual in question, the law forces them into a situation which in most cases may not be desirable.

Adding onto it, the act has zero mentions of property rights, marriage rights, reservations in institutions and other provisions which are desperately needed if some progress needs to be made in terms of uplifting the transgender community, leading to the law failing in the principles it is saying that it is ‘trying’ to establish.

You see, all of this stems from the fact that the law when drafted was made without the consultation of the community it was going to impact. It was then passed hurriedly through a voice vote in the parliament. This, along with the incredibly problematic provisions of the law, one fact is very clearly demonstrated: that the law is based on preconceived notions and stereotypes in regards to the transgender community and the law therefore, is itself oppressive in nature while being ‘liberating’ in name.

Not only that, despite the constant cries from the LGBTQIA+ community about making the law more inclusive in nature and thus, incorporate concepts such as ‘genderfluid’ and further intersectionality within the community as a whole, those voices have gone unheard leading to not only a social denial, but, a systemic denial of their identities which does nothing but add onto the oppression that the LGBTQIA+ Community faces.