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The Murder of Gender Justice

The sole purpose of a social welfare legislation should be to protect the rights of the marginalized community. The Universal Declaration of Human Rights (UDHR) provides protection of life and dignity to all individuals. UDHR safeguards the right to be treated equally in all spheres of human life be it social interaction, healthcare services or legal system. Sadly, all of these above-mentioned rights have been denied to the transgender community through the course of history. The public, law and even their families have failed this community. Their stories have been erased and atrocities have been committed on them that go unpunished and even unseen by the world. This unfairness would only be corrected and compensated through active measures by the state.


HISTORY OF THE TRANSGENDER PERSONS’ (PROTECTION OF RIGHTS) ACT, 2019

In 2014, the Supreme Court in a landmark judgement (National Legal Services Authority versus the Union of India) recognised the rights of transgender persons, their right to non-conformity to their birth-assigned sex and their right to determine their gender identity. The Transgender Rights Bill was introduced by Tiruchi Siva which was passed in 2015 in Rajya Sabha in order to initiate a legislative action that would follow this progressive judgement. However, this Bill was forgotten. Instead Lok Sabha introduced another Bill which was highly criticized and opposed by the Transgender Community for starters because it defined 'transgender' as 'wholly female nor wholly male. The government brought a total of 27 amendments in the bill and passed it. The Bill was passed in Rajya Sabha in 2019.


Grace Banu, a Dalit transgender rights activist contended that the bill was a “murder of gender justice.” “As a community, we have opposed this bill from the beginning, we do not want it. It does not uplift us.”

Even though this Act has the purpose of "protecting the rights" of transgender persons, it does the complete opposite and further oppresses them.


The Transgender Persons' (Protection of Rights) Act fails the Transgender Community and is the cause of their oppression for several reasons:

{The mentioned Chapters and Sections are in relation to THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019, NO. 40 OF 2019}


1. Section 2(c)(i)(k): Multiple definitions that are given in the Act are problematic and redundant concerning the problems faced by the community. For instance the definition of “family”, it is of utmost importance to understand that this community faces rejection and hatred from their birth parents and family. There are majority instances where such persons live with their chosen families. It is essential to include the same within the ambit of "family" as per this Act. Anotheo problematic definition is w.r.t. the lack of distinction between intersex persons and transgender persons. Even though there is a separate definition for intersex persons, the scope has been merged throughout the Act without realizing the distinctiveness of health concerns and social problems.


2. Section 3 : Even though discrimination against trans persons is prohibited by this Act, it lacks structure and completion. The Chapter which prohibits discrimination does not include any specifics regarding the same. There is no mention of enforcing authority. Remedial measures, be it compensation or otherwise, are not mentioned either. Lastly there is no indication of the punitive measures that are to be taken against their violator.


3. Section 4 - Section 7: The process of recognition of a trans person is highly problematic and violates the right to self-determination. The recognition of a transgender person’s identity is to be decided by the District Magistrate who issues the certificate based on the prescribed documents. These documents are quite unclear. Another problematic approach in this Act about identification is about changing one's preferred gender. This Act enforces the need to go through a very risky, costly and unnecessary surgery (Sex Reassignment Surgery) to change one's gender. Even after such a process, the clarity of its acceptance is unclear, as the Magistrate would decide on it. This process of identification is too complex and often raises the possibility of Red Tapism hindering with justice.


4. Section 7 : An alarming part of this Act only allows the person to change their first name and under no circumstances can alter their last name under this Act giving more importance than needed to the caste validity depicted through the last name.


5. Section 8 : Even though there's a supposed obligation on the government to ensure welfare of the transgender persons and to make welfare schemes regarding the same, there is lack of any punitive action against the state or any notification regarding the funds for the upliftment of the community. The overall reading of this section makes the hollowness and lack of intention to create any tangible changes, perceptible.


6. Section 11 : There is a vague and brief mention of appointment of a complaint Officer, who shall be designated to deal with complaints under this Act, however the appointment process of such officer is unclear and ambiguous as it gets consigned to oblivion while implementation.


7. Section 12 (1) (2) : The wordings of this clause makes it an unnecessary obligation on the child to live with their birth family unless they are separated by an order of the court. This section, similar to the entirety of this Act, takes no cognizance of the problems faced by the transgender persons. The violent, emotional and physical abuse faced by them by their birth families. This clause can only work on the assumption that every transgender person belongs to a class that can afford to go to court or has the knowledge to do so. This obligation fails to protect and invariably restricts movement of these persons.


8. Section 12 (3): The clause of 'rescue, protection and rehabilitation' completely ignores the current scenario and does not recognise the veritable problems faced by the transgender persons. The various forms of severe abuse, mental, physical, emotional and sexual, faced by the entire community from the society is not taken into consideration while introducing a 'shelter home'. This clause, resembling the entire Section 12, focuses more on policing their lives rather than protecting them. It restricts their way of life and is completely violative of their fundamental rights.


9. Section 14, 15 : Even though, there's a comparatively elaborate clause addressing the health issues of transgender persons, this Act fails to mention any conclusive measures that are to be taken regarding the same. There is zero to little mention of the problems faced by intersex persons while seeking healthcare.


10. Section 16, 17 : The National Council for Transgender Persons is primarily problematic in two ways. Firstly, it lacks independence to carry out its functions. The autonomy of the persons in this Council shall be compromised as they are to be Nominated by the Central Government. This would entail little to no power to raise questions and hold the government accountable for its inefficacy. Secondly, there's lack of representation of transgender persons in the committee. The National Council which comprises at least 30 persons, has a trifling representation of 5 persons from the transgender community.


11. Section 18 (a) : This clause can be a veritable evidence of how biased and prejudiced this Act is, against the transgender persons. Even though the skeleton of this Act supposedly aims to protect the rights of transpersons, this clause highlights the discrimination and oppresses them further. First and foremost, the provison criminalizing begging and sex-work. Even though the first-hand provision has been removed, the intended effect of criminalizing still exists due to the vague wording of the Act. Section that criminalizes ‘compelling or enticing’ a transgender person to indulge in forced labour is already covered by the Bonded Labour System (Abolition) Act which criminalises those employing bonded labour that's applied across persons with no gender discrimination, hereby obliterating the need for this section. The foreseeable objective of this section is to criminalize begging and sex work. Altering the words of this section doesn't absolve the legislators, the liability of its misuse and misinterpretation during implementation.


Secondly, the punishment for violence and offences committed against trans persons are just watered-down versions of what is provided in the existing criminal law. For instance, violence that endangers a transgender person’s life is punished by a term of a maximum of 2 years whereas Section 325 Of Indian Penal Code punishes grievous hurt with imprisonment up to 7 years and fine. This shows the mockery that's been made ignoring several years of oppression and violence that's been replaced with this product of tokenistic legislation.


CONCLUSION

The Act is nothing but a blatant mockery of protection of rights. It does more policing of transpersons' lives than protecting. “When a transgender woman gets raped in this country, cops first mock her, saying she doesn’t have the organs to be sexually assaulted; and what follows is a barrage of injustices – perhaps greater than the first one,” says Khushi, 30, who now lives in Mumbra, a city on the outskirts of Mumbai.


The understanding of this Act shows how tokenistic legislation is thrown at the community instead of tangible positive actions when a marginalised Community faces problems. The multiple protests, the lives lost and resistance of this Act should never be forgotten. The losses that the Transgender Community faced weren't losses in Courts, they lost the lives of their kin and members of their community. We must mourn these losses, not by mere silence but by active and loud resistance to this murderous legislation.


ENDNOTES

Caselaw:

National Legal Services Authority v. Union of India AIR 2014 SC 1863


Bills and Legislations:

1. Universal Declaration of Human Rights (UDHR) https://www.un.org/en/universal-declaration-human-rights

2. The Transgender Persons (Protection of Rights) Bill, 2018 by Loksabha

3. The Transgender Persons (Protection of Rights) Bill, 2019, Bill No. 169 of 2019.

4. The Transgender Persons (Protection of Rights) Act, 2019, Act No. 40 of 2019


Other references:

https://www.scmp.com/week-asia/society/article/2154077/india-no-country-transgender-women


ABOUT THE AUTHOR

This blog has been authored by Bhoomi Ajay Sandesara who is a 3rd Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.



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