By: Apurva Kandpal

Abstract– This article is a constitutional analysis of the landmark judgement NALSA v. Union of India and the developments that followed after it. After the Supreme Court’s mandate of the need for a law that protects the rights of the transgender community in India, the Transgender Persons (Protection of Rights) Act came out in the year 2019. The act aims to recognize the gender identity of transgender persons and prohibits discrimination towards them among other related matters. But the act falls short of upholding many facets of the judgement and also is violative of the fundamental rights laid down in the Constitution of India.

Introduction

The National Legal Services Authority (NALSA) v. Union of India judgement by the Supreme Court of India and the Transgender Persons (Protection of Rights) Act, 2019 can be considered milestones for transgender rights in India. The Trans community has faced decades of oppression in every corner of the world. Today in India, they are among the most vulnerable communities. Every day, transgenders have their fundamental rights infringed by society and the government. Trans people were central to the queer movement in the country but over the years, they have been alienated not just from the movement but by the community as well. When such landmark judgements and legislations are enforced upon a country that has a history of discrimination towards a section of society, what sort of regulations does one expect out of those laws? Are they aligned with the constitution or there are various contradictions and anomalies with the law implemented?

The NALSA v. Union of India

Article 21 of the Indian constitution talks about the right to life and personal liberty of a person. The self-recognition of gender lies at the very heart of the right to dignity and freedom that falls under the ambit of Article 21. Fundamental rights under the Indian constitution are the most basic yet the most important rights for a person. These rights are gender-neutral in nature, hence applicable to every gender identity including trans. The National Legal Services Authority of India, in the year 2012 filed a writ petition in the Supreme Court of India which mentioned a desperate need for the recognition of the rights of the transgender community. As citizens of India, they have a right to be equally treated and given similar rights that are available to the other citizens of India under Article 14 of the constitution.

The petition demanded the inclusion and legal recognition of the ‘third gender’ category in various identity documents. These documents would further help transgender people to avail the benefit of reservation in educational institutions and workplaces, recognize the right to marry and adopt and provide for free sexual reassignment surgery. The possibility of a negative outcome that might emerge after narrowing down the identities of every transgender person in India into a ‘third gender’ gave way to the filing of two more petitions by the NGO Poojya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan, a transgender activist. The petitions joined the matter and broadened the matter to include trans people who would prefer to be recognized as male or female. 

The final judgement was a historic moment for the transgender community in India. The court held that the right to recognise one’s gender identity is protected under Article 21. The transgender community came to possess the right to live a life of human dignity. They gained a right to their personal autonomy and privacy. Justice K.S. Radhakrishnan in the verdict gave a very apt description of what the transgender community suffer through,“Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces…they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change”. 

The Supreme Court stressed the need of preventing discrimination against people who do not conform to the stereotypical generalisations of the binary. Under Article 15 of the Constitution, the court observed that the government has the ultimate responsibility to take affirmative action to ensure the transgender community has the benefit of reservation in admission in educational institutes, public appointments, and sexual health centres. 

Flaws in the NALSA Judgement

The court decided on a broad definition of ‘transgender’; they used it as an umbrella term that included a wide range of gender non-conforming identities, “including but not limited to pro-operative, post-operative and non-operative transsexual people”. Such a wide definition did not specify how a transgender person may identify, but only that trans people’s gender identities and behaviour do not correspond to their socially assigned sex or gender role in some way. But they opted for a more restricted definition for the hijra and trans women. The final judgement had an insufficient representation of trans men and trans masculine identities. 

Justice Radhakrishnan had a somewhat open-ended interpretation of ‘transgender’ and was far more accepting towards the concept of self-recognition of one’s gender. Justice A.K. Sikri on the other hand, had a more narrow definition of ‘transgender’. He specifically mentioned that transgenders would mean hijras in the judgement, “therefore, we make it clear at the outset that when we discuss the question of conferring distinct identity, we are restrictive in our meaning which has to be given to the transgender community, that is the hijra etc.” This excludes other transgender or gender variant people from the judgement. Justice Sikri also left out transgender people who belong to the queer community, totally disregarding the fact that gender-variant people can also identify as lesbian, gay or bisexual. Such restrictions in the understanding of transgender identities have created multiple problems of interpretation regarding the implication of the judgement. 

The NALSA judgement came up with a charter of rights for the transgender community, in which the court mandated that its directions have to be followed by the government of India. The Transgender Persons (Protection of Rights) Act came into force in 2019, with its foundation laid out by the NALSA judgement. 

Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act was the first legislation in India that was enacted for the transgender community in the country. One of the most important sections in the act is Section 3, Section 4, Section 8, and Section 9. Section 3 talks about the prohibition of discrimination against a transgender person and mentions provisions of equal treatment for them. The section was formed to promote social acceptance of trans people into the society. Section 4 of the act states that a transgender person has a right to self-perceived gender identity. 

Section 8 mentions the welfare measures that are to be taken by the government. The government is required to take steps that will secure the full and effective participation of transgender persons and their inclusion in society. The welfare schemes will be framed to protect the rights and interests of the transgender people, and these schemes and programmes are required to be transgender-sensitive and non-discriminatory. Section 9 of the Act, talks about the obligations that need to be carried out by establishments. These obligations consist of non-discriminatory policies related to employment but are not limited to recruitment, promotion and other related issues.  

A Violative and Defective Statute

Despite being a major achievement for Transgender rights in India, there are several issues with the act that not only goes against the fundamental rights enshrined in the Indian Constitution but also the NALSA judgement. Section 5 and Section 6 of the act were the biggest issue that emerged, its provisions directly goes against Article 21 and Article 19(1)(a). The right to self-identify one’s gender is an integral part of the right to freedom of expression, life, dignity and autonomy under Article 19(1)(a) and Article 21, which was also held in the NALSA judgement. 

Under Sec 5 and Sec 6 of the act, the gender identity of a person was left on medical and psychological documentation to prove. The absolute mismanagement of gender dysphoria of a transgender in the act washed away the years of progress made in trans people’s rights. Section 5 vested absolute discretionary powers on the District Magistrate for the gender identity of a person. The District Magistrate had the ultimate choice to determine whether a person is transgender after being satisfied with the ‘documents’ given by that person. Before taking the decision, the District Magistrate has to take consultation with the registered medical practitioner of a hospital. The hospital is required to be that specific health centre where the sex-reassignment surgery was conducted on that person. The section basically concludes that the gender identity of a person will be decided by the government authorities. Transgender people do not conform to the gender that has been assigned to them at birth and many do not wish to be defined or put their genders into boxes. The right to self-identify and non-conform with your assigned gender at birth has been completely destroyed by these sections of the act. They are also violative of the right to privacy assured by the historic judgement, K. S. Puttaswamy v. Union of India, which declared the right to privacy a fundamental right of a person under Article 21 of the Constitution.

Under Section 7, the District Magistrate, after being ‘satisfied’ with the correctness of the document, will be required to issue a certificate which will indicate any change in gender of the transgender person within such time. The contention here is that no cisgender people are required to submit proof of their gender identity to the government authority, then why should a transgender person be required to do so? Discriminating between the two goes against the essence of the right to equality before the law under Article 14 of the Constitution. Another component of the act that was found problematic was Section 12 of the act, which states that no child shall be separated from parents or immediate family on the ground of being transgender, except on an order of a competent court, in the interest of such child. This section compels transgender persons to either live with their birth family or in rehabilitation centres, but many in the transgender community prefer to live with families that they have themselves chosen. The Section takes away the autonomy and the right to life and privacy of a trans person. 

Transgender people, due to their gender identities, are victims of abuse in their homes and in many cases they are abandoned by their families. In such conditions, trans people prefer to live with the families that they chose themselves, but Section 18(a) of the act has the potential to ‘target and attack’ these alternate family structures. The section criminalises any act which ‘compels’ or ‘entices’ a transgender person into forced or bonded labour. The act does not specifically define ‘forced or bonded’ labour. Under the same section, the act criminalises any act that harms or endangers the life, safety, or health of a transgender person, including sexual abuse. The maximum penalty for sexual abuse against transgender in this section is 2 years but under Section 376 of the Indian Penal Code, 1860, the punishment for sexual abuse against a woman is 3 years to life imprisonment. Such difference between punishments is violative of Article 14 of the Indian constitution.  

Post Transgender Persons (Protection of Rights) Act, 2019

Despite the passing of the landmark judgement NALSA v. Union of India, the government has failed to create welfare schemes for the transgender community. Trans people have faced extreme difficulties in securing public jobs. There is an alarming need for affirmative action by the government to ensure representation and equal access to justice for them. Trans people need the benefit of age relaxation for applying for government jobs. What the government fails to comprehend is that most transgenders are thrown out of their homes and left alone to fend for themselves. It takes them years before they can finally financially support themselves and by that time they are already older than the other binary genders applying for public jobs. In such situations, having the same age limit for both transgenders and cisgenders is extremely unjust and inequitable. People who fall under the gender binary have far better financial, social, and mental conditions than transgender people, which makes reservations for them immensely important.

Owing to hormonal therapy, trans people struggle during fitness training that is compulsory for the police and other physically challenging professional examinations. Another setback for transgenders is the exclusion of their community from the labour laws in India. Due to a lack of welfare policies and sensitisation, it becomes extremely difficult for a transgender person to get a job. In countless cases, they are left with no choice but to turn towards sex work for survival. One of the biggest reasons why such situations emerge is because the judgements and the acts that have been passed do not consult the transgender community before. There is a severe absence of trans representatives in the judiciary and legislative, who can not only empathise with the transgender community but also come up with laws that will help in improving their current situation. The laws are made and passed by heterosexual people who are unable to understand the intricacies and complexities of a transgender’s life. 

About the Author: Apurva is a second-year law student at Jindal Global Law School. Her areas of interest are gender studies, intersectional feminism, queer theory, and criminal law. 

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