“Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution.”

– NALSA vs. UOI (2014)

Introduction

Transgender (TG, hereafter) persons have been struggling endlessly to be recognised and accepted by law and society. Up until 2019, Gender Dysphoria which can be translated to ‘transgenderism’ was a diagnosable disease in the WHO manual.

Although, historically the TG persons were treated with respect and honour in various religious texts. The TG community finds a mention in the epic of Ramayana, which says that Lord Rama, was once so impressed by their devotion that he conferred upon the TG the power to bless people on special occasions like marriage, child-birth etc.

Things became worse for the community when during the colonial period, the government enacted the draconian “Criminal Tribes Act, 1871” which made their lives miserable.

The present society lacks awareness and sensitization about gender identity and attaches a lot of stigma with ‘transgenderism’. Due to social rejection and unacceptability, the TG community faces a lot of discrimination and harassment in all walks of lives.

Census 2011 revealed that around 99% of the TG population has suffered social rejection and 96% are denied jobs.

In India, the TG community had a major breakthrough when the SC delivered the historic NALSA judgement in 2014 recognising the TG people and their rights. It’s been six years since, but the government has still not acted to provide the TG community all the rights laid down in the judgement.

NALSA vs UOI

The SC in NALSA vs. UOI recognised the right of the TG community under article 14, 15, 16, 19(a) and 21 of the constitution. The judgement discussed that the ‘right to freedom of expression’ guaranteed under article 19(1) (a) is inclusive of the “expression of Self-identified gender in form of dress, words, actions, behaviour or any other form”. The judgement also stated that ‘gender – identity is the core of right to dignity and personal autonomy enshrined in the constitution under Article 21’. Right to self-determination of gender is also a basic dimension of the fundamental principle of “right to choose”. The SC also discussed Anuj Garg vs. Hotel Association of India which had already stated that “gender identity lies at the core of self-expression, personal liberty and autonomy given under article 21”.

Hence, the SC granted the right to decide self-identified gender and directed the state and the central government to grant legal recognition to TG as a male, female or third gender and declared any insistence on SRS declaring one’s gender as immoral and illegal.

Justice KS Puttaswamy vs. UOI

Another landmark judgement which spoke of the ‘Right to self-identification of gender’ was the popularly called “privacy judgement” of 2017. The SC in this case, stated “Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution.”

Hence, it was effectively reiterated by the SC that self-perceived gender identity is a core principle of the ‘life and liberty’ of an individual. Hence, under no circumstance, it can be curtailed.

TG Bill 2019

Following the NALSA judgement, three bills for the protection of rights of TG people were presented in both Rajya sabha and Lok Sabha, but none of those became an act.

Finally, the staging of Transgender Persons (Protection of Rights) Bill 2019 came as a glimmer of hope for the TG community. But what was supposed to protect the interest and needs of the TG, turned out to be the most regressive legislation ever. The TG community termed it as the ‘murder of gender justice’. This bill is inharmonious to the NALSA judgment in so many ways. The bill was drafted by 547 people and not even a single person belonged to the TG community. It is being highly protested by people and being called unconstitutional.

Section 5 of the bill states the TG person may make an application to the District Magistrate for issuing the certificate of identity.

Section 7(a) of the bill states that if a TG person undergoes Sex Reassignment Surgery to become a male or female, shall submit an application and medical certificate, as prescribed to the DM.

Section 7 (b) of the act states that the DM upon being satisfied with the correctness of such certificate shall issue a certificate indicating a change in gender.

On one hand, the bill grants the TG the ‘right to self-perceived identity’ as laid down in NALSA judgement, but on the other, it states that a person has to obtain a ‘certificate of identity’ from the government in order to be recognised. As said by Jaya Bachchan, member of Rajya Sabha “Certification itself is discrimination. It’s humiliation of a human being”.

And as stated in section 7, if a person wants to be legally recognised as a ‘trans man’ or ‘trans woman’, they have to submit a ‘proof of Sex Reassignment Surgery’ and then the DM will examine the ‘correctness’ of the same. The bill is silent on the fact that how the DM will check the correctness of the medical certificate and also what kind of surgery is needed as there are many types.

This section is wrong on so many levels. Firstly, the SC in NALSA case clearly mentioned that ‘any insistence on SRS for declaring one’s gender is immoral and illegal’ This has raised the problem of those TG who wish to be identified as ‘male’ or ‘female’, but cannot do so without surgery under the new bill. The bill unnecessarily pushes the TG community to undergo medical surgery in order to be granted their basic human rights. It goes against the dignity and bodily autonomy of an individual. Forcing surgery in order to be identified is a clear violation of freedom of speech and expression and privacy of an individual as many TG do not want to undergo surgery and also do not have resources to meet expenses of the surgery.

Moreover, the SC in NALSA judgement stated that the ‘TG community is prone to face abuse and sexual assault at the hands of law enforcement official’. Still, the bill has added many bureaucratic layers in the procedure of getting ‘certified’ which also increases the risk of corruption and red tapism.

By mandating SRS in order to be identified as male/female, the bill indirectly states that ‘gender is binary’. In order to be a male or female, people have to conform to the societal stereotypes of the gender otherwise they’ll be denied their legal and human rights. This also points to the fact that bill is unable to differentiate between ‘sex’ and ‘gender’ and reinforces the stigma that TG people suffer from psychological disorders and need medical intervention in order to be recognized.

Gender Identity Laws in other jurisdictions

Although, there are still 73 countries where homosexuality is illegal and around 8 countries where LGBT+ people are at risk of death penalty, some countries around the world have made some real progress when it comes to transgender rights. Inspiration can be derived from these progressive laws around the world.

ARGENTINA

Argentina was one of the first nations to recognize the rights of the TG community. In 2012, Argentina’s Senate passed ‘Gender Identity Law’ which made Sex change surgery a legal right. It also states that gender can be changed without the approval of any doctor or judge. For gender change, no hormone therapy, surgery or any medical alteration in the genitals is not required but they are provided for free by the state to anyone who requests them. Argentina has been actively cited by WHO as a pioneer in the field of TG rights.

DENMARK

In 2014, the Danish parliament allowed for legal gender recognition for people above the age of 18, solely based on ‘self-determination’ without any medical proof. With this, Denmark became the only country in Europe that does not mandate any psychological diagnosis or surgery, rather the right can be exercised by simply filling out a form.

GREECE

Although Greece still has a long way to go for TG rights, its gender identity law is very progressive. It has granted the legal right to change one’s gender without the requirement of surgery to a person of 17 and above. Even under-aged persons, between the age of 16 and 17 can have legal recognition of identity but they need to obtain a certificate from the medical council.

OREGON

Since 2014, the Oregon state of US has stated that sex-change surgery is not a requirement for changing one’s gender on the birth certificate. This ruling is believed to be the first of its kind in the US.

Conclusion

Certification, medical procedures or tests of any kind are straight-up violation of privacy and dignity of an individual. The requirement of certification and the mandate of SRS laid down by the TG Bill 2019 is a direct violation of the SC’s order in NALSA judgement. The bill, instead of protecting the rights of TG persons as suggested by its name, rips them off their basic human rights of dignity and liberty to choose. It entangles them in a web of bureaucratic layers due to which many TG people may get deprived of recognition and welfare schemes of the government.

The TG people have now been struggling from time immemorial, therefore the government finally needs to understand and cater to their needs and listen to their voices and make necessary amendments to the bill.

By taking inspiration from some progressive models around the world, the government can draft provisions for the TG people to self-identify and register with the government. Sex change surgery of any kind should be a choice as an art of their bodily autonomy not a compulsion.

The government needs to be clear with the gender identity laws and instead of reinforcing the ‘gender is binary’ stigma, should start sensitizing the society about the TG community. Instead of calling TG a ‘third’ gender, it needs to be stated that all genders are equal, there’s no first, second or third. This kind of acceptance will only come in society, when firstly it comes from the law. To provide the TG community their human rights is to uphold the spirit of the constitution.

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ABOUT THE AUTHOR

Anshika Saini

Anshika Saini is a first-year law student at RMLNLU, Lucknow. She is a member of the Moot Court Committee of the college and has a keen interest in the areas of Constitutional Law and IPR.