TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT & RULES – A CRITICAL ANALYSIS

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT & RULES – A CRITICAL ANALYSIS

NITESH MAHECH, Student, University School of Law and Legal Studies, GGSIPU

On 26.11.2019, the Transgender Persons (Protection of Rights) Bill, 2019 was approved by the Rajya Sabha, after having been passed by the Lok Sabha on 05.08.2019. There had been an impassioned debate for further scrutiny, in accordance with the demands of the transgender community. On 5.11.2019, the bill received presidential assent after which the Ministry of Law and Justice published it in the Gazette of India as Act No. 40 of 2019[1]. The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the “Act”) has been in effect since January 10, 2020 after notification of the same in the Gazette by the Ministry of Social Justice and Empowerment[2].

BACKGROUND OF THE ENACTMENT OF THE TRANSGENDER ACT

In the year 2014, the Hon’ble Supreme Court in the case of National Legal Services Authority v. Union of India[3] recognized a transgender person’s right to self-identify their gender as male, female, or the third gender. It was also stated in the verdict that the non-recognition of gender identity violates Article 15 of the Constitution, which prohibits discrimination on the basis of sex. The 2014 judicial mandate was affirmed by the judgments of the Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.[4] and Navtej Singh Johar v. Union of India. Then further in the year 2019, The Transgender Persons (Protection of Rights) Act, 2019 was passed that allowed persons to self observe their gender identity and provides the procedure to get the Certificate of Identification along with rights and benefits.

However, there had been a number of contentious issues, which reflected concerns of the community, civil society, and legal experts. In furtherance of the same, the Central Government on July 13, published the draft “Transgender Persons (Protection of Rights) Rules, 2020” (hereinafter referred to as the “Draft Rules”) which proposes to notify under the Transgender Persons (Protection of Rights) Act, 2019. Following the notification of the Act, the government circulated the Draft Rules to the Act on April 16, 2020 for public feedback.

SALIENT FEATURES OF THE TRANSGENDER ACT

Following are the salient features of the Transgender Persons (Protection of Rights) Act, 2019

1. The act defines a transperson as someone whose gender does not match the one assigned at birth and the act includes trans-men, trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra in the definition of a transperson.
2. It prohibits discrimination against them in employment, education, housing, healthcare, and other services.
3. It allows self-perception of gender identity but it mandates that each person would have to be recognized as ‘transgender’ on the basis of a certificate of identity issued by a District Magistrate.
4. It strongly focuses on transwomen and hijras, and also, criminalizes begging.
5. Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
6. A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. Also, a revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
7. National Council for Transgender persons (NCT)would be established to advise the central government as well as monitor the impact of policies, legislation, and projects with respect to transgender persons.

ISSUES WITH THE DRAFT RULES OF THE ACT

The Draft Rules released by the Central Government following the enactment of the Transgender Act is to provide some more clarity towards the provisions of the Act and therefore, published on Official Gazette for public feedback.

The said Draft Rules, firstly, provides the procedure by which the transgender persons may apply for a Certificate of Identity and the manner in which such a certificate will be issued to them. Secondly, it will be issued by the District Magistrate and such an application for the Certificate of Identity must include an affidavit, application form, and psychologist’s report. And thirdly, if the applicant is residing in an area under the jurisdiction of a District Magistrate for a period of one year as on the date of the application then the District Magistrate may only issue a Certificate of Identity.

However, there are certain issues in the said Draft Rules like an application for a Certificate of Identity to include a psychologist’s report is required. Since persons have the right to self-perceive their gender identity as also provided under Section-4(2) of the Act[5] which implies that the gender identity of a person cannot be determined by anyone other than themselves[6]. But, it is unclear why the Draft Rules require a psychologist’s report as part of an application for a Certificate of Identity as transgender. Since as per the Act, there is no need to ‘evaluate’ the person’s gender by the District Magistrate. Instead, his role is to issue a Certificate to any person that self-identifies as transgender. The Draft Rules do not specify the content of the psychologist’s report that is to be submitted when applying for a Certificate of Identity. Also, according to the National Human Rights Commission, as of 2019 there are 898 psychologists serving in government and private hospitals whereas the demand for clinical psychologists is 20,250 and at the same time, the total population of transgender persons in India is around 4.9 lakh. So it would be difficult for the transgender persons to obtain psychologist reports when applying for certification.

The Draft Rules state that a District Magistrate may only issue a Certificate of Identity to an applicant who has been a resident of the area under his jurisdiction for a period of one year as on the date of the application. But the transgender community faces ostracisation, unemployment, and homelessness[7] that makes it difficult for them to establish roots for a continued period of at least one year before submitting an application. It may also be argued that this provision increases the burden on transgender persons to apply for a Certificate of Identity. Further, it is unclear as to why the information such as educational qualification, name of school or college, source of income is required in the application for the certification of a person as transgender. And in case if there is a false application for a Certificate of Identity as transgender, the said Draft Rules do not provide the basis to determine the authenticity and even the Act does not specify a penalty for making such a false application.

As far as the welfare measures for transgender persons is concerned, the Draft Rules require government departments to review existing schemes and welfare measures to protect the rights and interests of transgender persons but still, such measures have not been clearly described. Since the Draft Rules also state that the appropriate government must provide separate washrooms in establishments within two years from the notification of the rules. But however, it is not feasible for the appropriate government to provide separate washrooms for transgender persons as the term “establishment” includes central and state government-funded or controlled bodies, an association of persons, firm, agency, or even institution.

Further, the bench in the NALSA judgment said that:

“non-recognition of the identity of Hijras in the various legislations denies them equal protection of law and they face wide-spread discrimination”[8].

The Draft Rules give immense power to the District Magistrate to reject the application for Certification of Identity which violates the decision in the NALSA judgment as the NALSA judgment allowed self-identification of gender.

The judgment of Arunkumar and Sreeja v. Inspector General of Registration and Ors.[9] cannot be ignored in these circumstances as it provided civil rights to the transgender community. The Madras High Court, in this case, held that a properly solemnized marriage between a male and trans-woman is valid under the Hindu Marriage Act, 1955, and the Registrar of Marriages is bound to register the same. It opened the door to the larger LGBTQ community for availing civil rights including marriage, succession, and inheritance. This verdict broadens the perspective of the rights of the transgender community that has been ignored from time immemorial.

Furthermore, many transgenders have undergone surgeries years ago and the Draft Rules do not talk about such transgenders since those who have already undergone surgery years ago may not be able to produce documentation at this stage. And with this major issue, many of such transgenders may not be avail the benefits available to them from the laws and schemes.

RECOMMENDATIONS IN THE DRAFT RULES OF THE ACT

It is to be noted that the Transgender Act has been challenged immediately after the enactment before the Hon’ble Supreme Court of India as the Act infringes the constitutional guarantees provided by the Supreme Court in NALSA verdict[10]. Therefore, postponing the procedure of making rules till the time the Court decides the case of the validity of the Act would be an effective step.

Also, the Draft Rules have been published by the Central Government in the Official Gazette but if in addition to the efforts of Central Government, if State Government will come forward with their rules keeping the issues of transgenders in their states into consideration then it would be a good step as the State Government is also empowered to enact rules to operationalize the provisions as per Section-22 of the Act. So, such a step would focus more on the issue at the local level and from state to state, the situation may also vary so such a step would be more effective to achieve the objective of the Act.

Further, under Rule 4, Clause 1, the requirement of the report of a psychologist of a hospital of appropriate government should be removed. The reason is that as per section-4 of the Act, it provides the right to self-perceived gender identity, and also this right has been recognized by the Supreme Court in NALSA verdict as a part of the right to live with liberty and dignity under Article 21 of the Constitution of India. So, making a requirement of the psychologist’s report infringes the decision of the Hon’ble Court. Also, under Rule 4, Clause 2, it restricts the applicant to file an application before the District Magistrate of an area where they have been continuously resident for one complete year. But such a requirement of continuous residence should be removed because the right to self-identification is a constitutional right and it should not be restricted in this manner. Hence, they should be allowed to approach the District Magistrate of an area where they are currently residing rather than where they have been continuously resident for one complete year.

Furthermore, under Rule 6, Clause 1, it requires the applicant to apply in Form 1 of these rules. But Form 1 only allows the applicant to request for change to “transgender” and does not allow the applicant to request a change to “male” or “female” gender. In order to avoid any confusion, it is suggested that a separate Form be prescribed for applications under Section 7 of the Act and with this regard, Form 1-A be introduced which specifically provides for change of gender under Section 7 of the Act.

Under Rule 8, the District Magistrate shall communicate the rejection of application to the applicant but the rule provides no such criteria for rejecting the application. Therefore, it is suggested that specific criteria be informed to the applicants before applying for certification of identity because in that case, there would be lesser chances of rejection as the application would be aware of the criteria and this step would also ensure no arbitrariness in the process.

Moreover, under Rule 9, even if the application is rejected by the District Magistrate, the applicant has a right to appeal as per Rule 9 but it does not provide that who shall be the appellate body in case of appeal. Hence, the rules should clearly identify the appellate authority and should not further delegate this function to the appropriate government since the right to appeal is a substantive right in the rules. Leaving it to the discretion of the appropriate government may lead to arbitrary decisions and adversely affect the rights of the applicants.

And lastly, as we all know, the World Health Organisation declared COVID-19 a pandemic on March 11, 2019[11] and in such a worse situation, the livelihood, and access to many essential services have been impacted. The concept of social distancing and health measures to prevent from this virus has now become a topmost priority and therefore, holding a public consultation amid this COVID-19 pandemic is inadvisable since members of the transgender community may not be able to fully participate in such a process thereby defeating its very objective. Therefore, consultations on the Rules should accordingly be postponed and in meantime, the Ministry should make efforts towards greater dissemination of the draft Rules in different regional languages so that the members of the transgender community can have the meaningful participation in the consultation process.

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Image sourced from – https://www.aclu.org/issues/lgbt-rights

[1] Ministry of Law and Justice, December 5, 2019, http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.

[2] Ministry of Social Justice and Empowerment, January 10, 2020, http://egazette.nic.in/WriteReadData/2020/215301.pdf.

[3] National Legal Services Authority and Ors v. Union of India, (2014) 5 SCC 438.

[4] Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors, Writ Petition (CIVIL) NO 494 OF 2012.

[5] Transgender Persons (Protection of Rights) Act, 2019.

[6] Id. at 3.

[7]  Report of  Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Empowerment, January 27, 2014.

[8] Id. at 3.

[9] Arunkumar and Sreeja v. Inspector General of Registration and Ors., WP (MD) No. 4125 of 2019.

[10] SC issues notice to the Centre on a plea against ‘Transgender (Protection of Rights Act), 2019’, The Leaflet (January 27, 2020), https://theleaflet.in/sc-issues-notice-to-centre-on-a-plea-against-transgender-protection-of-rights-act-2019/.

[11] WHO announces COVID-19 outbreak a pandemic, World Health Organisation, http://www.euro.who.int/en/health-topics/healthemergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a-pandemic.