The Transgender Persons Act – A Legal Facade

A few months back, when Anjana Hareesh[1], a queer who died of suicide became the headlines of newspapers in the country, social media sprung to action to discuss the rights of LBTQ community in India. But where do we as a county stand in affording the legal protection and validation to this community?

HISTORY

The pre-colonial era of the country and its mythological history affords an entirely different status to the LGBTQ community from what we see today. From Ajunan to Shikandi in mythical stories to courtesans of the Mughal Kingdom, the community has always been treated at par, if not at a higher pedal. With the reign of colonial forces, the scenario drastically shifted. The colonial-era rules vigorously sought to criminalize the hijra community and to deny them civil rights. Hijras were considered to be separate caste or tribe in different parts of India by the colonial administration. The legacy of the rules continued to reflect in the Indian society in some way or other even in the post-colonial India.

POSTCOLONIAL STRUGGLE

Even after ages of human civilization, the LGBTQA+ community are not considered gender normal. They do not fit into society’s concept of normalcy. Transphobia, like all other socially constructed stigmas, has been successful in putting the minority community in constant distress discrimination and prejudice. From struggling with their own selves against the body that doesn’t fell their own, to a family that either disowns them, fails to accept their identities or sends them for therapy; to a society that ridicules, discriminates and ostracises them and to live in society build on notions of caste hierarchy, patriarchy and misogyny, they indeed live their lives like it is a crime to have been born.

The community’s struggle of finding a voice has been a long one. It was only in the year of 2014 that the transgender community was legally recognized as the third gender. The struggle to get the minimum right of recognition bore its fruits only in the year 2014 when the Supreme Court of India recognized the Transgender Community as a third gender through the NALSA judgment[2]. This was followed by yet another landmark judgment in Navtej Singh Johar case[3] wherein the courts decriminalized Section 377. The judicial outlook did seem to be a rainbow at the end of the tunnel. However, the legislative action heralded as a significant step in recognizing and protecting the transgender community has been met with great opposition and resistance from the community. The act is its very essence goes against the considerations of NALSA judgment.

DENIAL OF AUTONOMY

The legislation under the facade of protection combats every single thing that was aimed at through the landmark judgement. The NALSA judgement celebrated to be a vanguard of progressiveness, recognises the right to the self-identification of gender. This divorces the idea of one’s gender from the idea of an officially assigned identity. It essentially transcribes to liberate Trans and gender non-conforming individuals from medical surveillance and invasive procedures to withhold their gender identity.  The Act, in contrast, reduces a person to their genitals. The Act[4] mandates for the process of submitting an application to District Magistrate for the legal recognition of one’s transgender identity, and it makes getting an ID as male or female dependent on first registering as transgender, and then supplying proof of surgery. Even though the Act makes deviance from the earlier introduced bill that mandated for a test through a screening committee, this still continues to be antithetical to self-identification and adds more layers of bureaucracy and red-tapesim.

After years of battle for even the minimum of basic human rights, the 2014 judgment recognising transgender’s as the third gender and affording equal status came as a boon, but nevertheless, the act defeats this victory. The act reduces the community and treats them at a level inferior to others. The provisions of the act ranging from those affording lesser punishment to sexual abuse against transgenders to not prescribing penalties for discrimination at workplaces, the act disrobes the community of equality and dignity. The government has ignored and failed to build an awareness and sensitisation campaign around the verdict as stated in the judgment and has failed to address civil rights like marriage, adoption, social security benefits and lot more that would otherwise constitute the bare minimum of individual rights.

THE WAY FORWARD

The Act has been passed even after being vehemently criticised by the community. The prevalent transphobia and exclusion are not the only predicaments that fall upon the transgender community. The struggle of living in a body that doesn’t feel like their own to facing the stigma associated with the same, the individuals of the community often lives with shambled mental health. With a shocking statistic which shows, eighteen per cent of transgender’s to have suffered physical abuse, 62 per cent subjected to verbal abuse and 99 per cent of them have suffered social rejections on more than one occasion, the extend of mental health disorders they suffer are unfathomable. The lack of financial resources to access mental health facilities and the practice of “therapeutic counselling[5]” to reconfirm one-self into “normative” gender roles have kept the community at bay from having access to decent mental health care.  Even when the basic rights are divorced from their existence, the other prevalent social evils of caste, class discrimination are embodied in their day to day lives. The grips of silencing the voice of dissent have been fastened across the LGBTQA community as well. The current legislation has only contributed in adding more perils to their lives.

The judiciary and legislative should work hand in hand to confer to its citizen’s equal protection of their rights. The legal recognition of their rights and existence can in fact go a long way in creating an impact in the societal outlook. The biggest hurdle is the parochial attitude and social resistance to think beyond their ideas of normalcy and fitting things into neat brackets and include transgenders as a normal part of daily lives. The key is to sensitize the public and to create an impact in the mind-set of the legislatures.

[1] https://www.thenewsminute.com/article/kerala-student-dies-goa-death-puts-focus-inhuman-conversion-therapy-queer-people-124683

[2] https://www.livemint.com/Leisure/vSUXHq74FRGtAPTXDfsWGO/Supreme-Court-recognizes-transgender-rights.html

[3] https://indiankanoon.org/doc/168671544/

[4] https://www.indiacode.nic.in/handle/123456789/13091?locale=en

[5] https://www.livemint.com/mint-lounge/features/the-pain-and-cruelty-of-conversion-therapy-11591975439448.html


ABOUT THE AUTHOR

Chaithanya B Ampadi

Chaithanya Ampadi

Chaithanya is a fifth-year BA LLB (hons) student from The National University of Advanced Legal Studies (NUALS).  She has a keen interest in the field of Constitutional Law, Corporate Law and Taxation Law. She enjoys researching and writing articles about socio-legal issues. She can be reached at ampadichaithanya7@gmail.com.

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