Rights of Transgender Persons Bill, 2014

Background

The Bill was introduced in the Rajya Sabha by Dravida Munnetra Kazhagam leader Tiruchi Siva as a private member's bill. Some Bharatiya Janata Party leaders initially tried to convince Siva to withdraw the bill citing anomalies and impractical clauses. Minister of Social Justice and Empowerment Thawar Chand Gehlot said that some clauses of the bill were impractical and too complicated. He promised future policies to benefit transgender people while requesting the Bill to be withdrawn. Mukhtar Abbas Naqvi, Minister of State for Parliamentary Affairs, and P. J. Kurien of Indian National Congress also made a similar request made person by Gehlot or the house should support the bill.

The bill was unanimously passed on 24 April 2015 in the Rajya Sabha, where the Opposition had the majority but also received support from the treasury bench. The move was welcomed by LGBT rights activist Simran Shaikh. The Bill is considered historic for being the first private member's bill to be passed by any house in 36 years and by Rajya Sabha in 45 years. Usually, the bills are withdrawn after a debate and the government's response. Until then, only 16 private member's bills had been passed since 1947.

On 26 February 2016, the bill was introduced in the Lok Sabha for debate by Biju Janata Dal leader Baijayant Panda. Panda argued that the bill would help extend constitutional rights and end the discrimination against transgender people, allowing them to live a life of dignity. Jagdambika Pal also supported ending the discrimination against transgender people.

NALSA Judgment 15th April 2015

The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female, or third-gender:

Legal Recognition for Third Gender  In recognizing the third gender category, the Court recognizes that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of the third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. is discriminatory to the third gender.

Legal Recognition for Persons transitioning within male/female binary As for how the actual procedure of recognition will happen, the Court merely states that they prefer to follow the psyche of the person and use the "Psychological Test" as opposed to the "Biological Test". They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one's gender is illegal.

Public Health and Sanitation: Centre and State Governments have been directed to take proper measures to provide medical care to Transgender people in the hospitals and also provide them separate public toilets and other facilities. Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgender people.

Socio-Economic Rights Centre and State Governments have been asked to provide the community with various social welfare schemes and to treat the community as socially and economically backward classes. They have also been asked to extend reservations in educational institutions and for public appointments.

Stigma and Public Awareness These are the broadest directions Centre and State Governments are asked to take steps to create public awareness so that Transgender people will feel that they are also part and parcel of the social life and not be treated as untouchables; take measures to regain their respect and place in society and seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, and social stigma.

The Court notes that these declarations are to be read in light of the Ministry of Social Justice and Empowerment Expert Committee Report on Issues Relating to transgender people.

Critical Analysis

The judgment delivered by Radhakrishnan, J, made a detailed analysis of the transgender status, not only in the international sphere but also in the Indian legal and cultural history. On the one hand, the judgment addresses various issues and problems faced by the community but on the other, certain obvious and important issues were superficially addressed.

The concurring opinion delivered by Sikri, J is almost as elaborate as the main judgment and defines the rights of the transgender community in a jurisprudential light. The learned judge made a detailed analysis of Kantian criterion of justice, Aristotle’s equalitarian theory, and Locke’s conception of individual liberties. Giving due Respect to these theories, the learned judge dismissed them as irrelevant in the present scenario. He has rightly done so, as all the theories are biased opinions of their thinkers, belonging to a different society and at a different time.

While agreeing to the reasoning put forth by his learned brother, Justice Sikri took into consideration the Directive Principles of State Policy to recognize the duty of the State in taking affirmative action for the upliftment of the community.

The learned judge recognized the intricate web of rights associated with the recognition of persons according to self-recognized gender. The transgender community, along with their right to self-recognition is deprived of educational facilities, medical facilities, the right to vote, the right to own property, the right to marry, the right to a formal identity, etc. The individuals of the transgender community are deprived of these basic human rights that are recognized everywhere in the world.

The judgment does not provide a long-term and extensive solution to the problems faced by transgenders. It merely gives a cursory glance at these problems. The judges provide no descriptive or comprehensive guidelines.

The transgender community is sensitive and vulnerable should be given special treatment that is meted out to the women in India. Special provisions of counseling and interrogation should also be provided to the ‘third gender’ and not merely individuals who recognize themselves as females. While the issue of separate public toilets was addressed by the judgment, the need for separate detention facilities was not taken into consideration. One of the biggest problems faced by the transgender community is atrocity and cruelty meted against them by the police force of the country; adequate measures to address this major problem must be taken up by the wings of the government.

Moreover, the issue of sexual intercourse though given a perfunctory glance was not looked deep into. Though it was not a direct issue in the writ petition, this is an issue that is inextricably linked with the rights of the TG community. The Yogyakarta Principles, which were relied upon by the judges, were not accepted in their true letter and spirit. Paragraph 22 of the judgment is a detailed reproduction of these principles. These principles call for an amendment of the criminal law of the country so that their sexual and reproductive rights are not affected. However, since this issue was already decided by the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation and Ors., upholding S. 377 of the Indian Penal Code, an opinion should have been made by the learned judges highlighting the importance of sexual relations for persons in enjoying a dignified and meaningful life.

An appreciable factor of the judgment was its recognition of the TG community as a socially and educationally backward community. Such classification, which acts as positive discrimination, is a much-needed action for the upliftment of the community.

Another significant aspect is the special medical attention that is sought to be given to this community. Also, the measures to provide them a sense of belonging in the society by educating the society, as well as the community, is a laudable solution put forth by the judgment.

This judgment was a long-awaited one not only by the transgender community but also by human rights workers. The TG community became the new ‘untouchables’ and the cruelties sustained by them were one too many. This was a first step to the amelioration of a community, marginalized and abused, and for too long a time.