Introduction
Today, the conversation around gender identity in India is very different than it used to be. The law has begun to recognize that transgender, and legally acknowledging a person’s rights is a major change to how they have previously been seen i.e., as being invisible until now. This change was represented by the passage of the Transgender Persons (Protection of Rights) Act, 2019 (“Transgender Persons Act”) which has been used by many as an example of the Indian government taking steps to ensure that persons have their dignity and equality protected. Despite the fact that the Transgender Act provides legal recognition to individuals as male or female they still continue to suffer from significant barriers to full participation in society.
As a result of these issues, the call for changes to the Transgender Act is a signal that the transgender rights movement is much deeper than just legal disparities. It raises important questions about the authority of the State to define or otherwise regulate identity.
The Constitutional Basis of Transgender Rights
India’s existing legal framework relating to transgender rights originates from an important Supreme Court ruling in NALSA Vs UOI[1]. The Court’s decision was a landmark ruling and marked an important step forward in the history of law, as it acknowledged for the first time that individuals identifying as transgender constitute a third gender.
This ruling confirmed that “gender identity” is an essential component of “personal autonomy”[2]. In coming to this conclusion the Court concluded that the constitutional right to “self-identify” one’s own gender identity is protected under Articles 14, 19 and 21 of the Constitution of India.
The Court also stated that dignity, equality and freedom of expression should not be recognized as privileges for a certain class or group; these characteristics should constitute a fundamental right for all persons irrespective of their gender identity or sexual orientation.
Most importantly, the Court also ruled that a person’s gender identity should be determined by “self-determination” – that is, the process through which a person’s gender identity is established through an individualized process of self-determination, without any requirement for external authorities to verify or validate that person’s gender identity. This ruling will act as the legal basis for cases concerning transgender rights in the future.
Legislative Response: Between Progress and Limitation
The Transgender Persons (Protection of Rights) Act, 2019 was enacted by the legislature as a response to court directives. It prohibits discriminating against transgender people as they relate to their education, employment, healthcare and use of public services, all of which should be provided on equal terms to non-transgender individuals.
The Act contains provisions that represent advances made in establishing rights for transgender individuals; however, there are also provisions that restrict the autonomy of individuals based on their gender identity or expression. Thus, this contradiction highlights the tension between recognition of and control over an individual’s identity. The Act sets out the basis for the legitimacy of an individual’s gender identity, while setting out conditional expectations for that identity to be recognized.
Certification Requirement: A Challenge to Self-Identification
One contentious issue related to the province’s sex and gender definitions, specifically regarding the requirement for transgender individuals to obtain a certificate of identification before accessing the rights associated with their gender identity, is the requirement that transgender people obtain a Certificate of Identity (CI) from a District Magistrate[3] before having access to certain gender-appropriate rights, even though this is framed as an administrative process, the requirements of this type of identification process will have implications in many areas of life.
By making an individual’s identity subject to state approval through the process of issuing certificates, the Act is contrary to the Supreme Court of Canada decision that affirmed self-identification as a basic right. The recognition of self-identification has a strong relationship to an individual’s right to privacy, dignity, and autonomy.
An examination of the Vader Act from a right-based perspective demonstrates that the requirement for a Certificate of Identity is not consistent with the basic framework of the Canadian Charter of Rights and Freedoms (Charter). In essence, a Certificate Of Identity transforms an individual’s right to be treated in accordance with their gender identity into a conditional right; therefore, in order to be treated in accordance with one’s gender identity, that individual must first meet the requirements of the state of obtaining a Certificate of Identity, which in turn will give him/her/them access to the “rights” associated with being a person of that gender. Therefore, there is a growing demand for reforms to the Act, such as repealing it or passing amendments to it, so that individuals do not have to seek government approval to access their rights, but can do so easily without any bureaucratic encumbrances.
Penal Provisions and the Question of Equality
Under the Act, there are penalties for the offence of committing a crime against a transgender person, such as denial of access to a public venue and various forms of abuse[4]. However, the punishments prescribed by the Act are usually less severe than the punishments for comparable offences under other criminal laws.
This disparity creates significant issues surrounding equality before the law, as everyone is entitled to equal protection under the law and the legal consequences for an offence must reflect this principle of equality. Weaker punishment of these types of offences may cause individuals to not see the seriousness of these crimes and will likely not deter them from committing further infringement on the rights of transgender individuals.
To strengthen the provision of legal protection for transgender persons, there needs to be a greater focus on the need for stronger and more effective punishing of offences against transgender persons.
Absence of Civil Rights
The legal system does not currently provide for any substantial civil rights such as adoption, marriage, and inheritance for transgender individuals. While identity has been accepted by the law with some measure of identification being given to transgender individuals, they presently lack meaningful access to the rest of the legal system based on this identity. Because of this absence of recognition, many of the basic aspects of our society remain inaccessible to these individuals. In addition to their legal recognition as having a distinct identity from other members of society, that identity must have substantive rights if these individuals are going to be able to fully engage in the participation of their communities. There is a clear necessity for an ongoing dialogue regarding the need to expand the law through amendments providing these substantive rights, moving from a mere symbolic recognition of individual identities to full inclusion.
Constitutional Morality as a Guiding Principle
The issue of transgender rights is closely tied to the notion of constitutional morality. The Constitution of India[5] includes values that include justice, liberty, equality and dignity as guides for all legislative action. The Supreme Court has continuously stated that constitutional morality should take precedence over social morality so that individuals can be protected from societal prejudice. It is here that the mandate of inclusive legislation for all individuals, including transgender individuals, is so important because without it, the law merely perpetuates the
existing discrimination faced by transgenders. As such, any amendments dealing with transgender rights must also adhere to the constitutional principles and have dignity as their basis.
Conclusion
India’s recognition of transgender rights is a significant milestone in the development of India’s constitutional law; however, there continues to be a large gap between both the legal recognition and the reality of day-to-day life. The Transgender Persons (Protection of Rights) Act, 2019 was a progressive piece of legislation but it still requires major reforms in order to meet the expectations of India’s Constitution.
Therefore, the need for a Bill for the amendment of the Transgender Persons (Protection of Rights) Act is not simply a matter of making corrections to existing laws; rather, this demand will serve to ensure that dignity, autonomy and equality are not abstract (theoretical) ideas, but actual lived experiences.
In addition to this, the principles laid down in National Legal Services Authority v Union of India must also be the guiding principles in the transformational change called for in the legislation. Ultimately, a just legal system will be one that acknowledges each individual’s identity, protects each individual’s rights and ensures that every individual is guaranteed the right to equality, thus living up to the promise of equality.
Author(s) Name: Anuradha Prashant Gaikwad (Manikchand Pahade Law College, Chhatrapati Sambhajinagar)
References:
[1] National Legal Services Authority v Union of India (2014) 5 SCC 438.
[2] Constitution of India, arts 14, 19 and 21.
[3] Transgender Persons (Protection of Rights) Act 2019, ss 5–7.
[4] Transgender Persons (Protection of Rights) Act 2019, s 18.
[5] Constitution of India, arts 14 and 21.