Transgender Persons (Protection Violation of right) Act, 2019
Photograph via @KAYY_MANN
Written by Vidhi Arora
On 5th December 2019, the Government of India signed the Transgender Persons (protection of Rights) Act, 2019 amidst massive opposition by the LGBTQ+ community.
The government proposes that the bill was passed with the objective to provide for protection of rights of trans people, and to assure social and economic mobility, and yet not only does the Act fall short in application, it is also a reflection of the transphobic functioning of the current authority.
Not a single member of the Trans community was asked or consulted while this Act was being formulated. The government aimed to solve a problem that it has no idea about, it set out to understand the lived experiences of a Trangender without ever listening to them and the result was this abysmal and horrifyingly prejudiced Act.
The Act prohibits discrimination against transgender people but the most problematic aspect is that requires trans people to register themselves with the government to be recognised as a Transgender in the first place. In order to receive a certificate of Identity as a ‘transgender’ under Trans Act 2019, you require to fill in an application and provide a psychologist’s evaluation. Whereas, an individual must submit proof of gender confirmation surgery to the government officials in order to register themselves as ‘male’ or ‘female’. The reason why it is so problematic is because it does not take into account the harassment and structurally placed obstacles that they would be required to go through in order to acquire that certification. The entire ordeal of letting a stranger “inspect” your body for scars for gender reassignment surgery as a proof of your identity is demeaning and horribly intrusive.
This clause also violates the 2014 National Legal Services Authority of India (NALSA) judgement to legally recognise people who fall outside the gender binary, including those who identify as Third Gender. This landmark decision assured the right of an individual to self identify their gender. Furthermore, due to courts acceptance of self identification, it assured that no third gender individual would have to be subjected to medical examinations to provide proof of their gender. The NALSA judgement ensured Right to Privacy to the Third gender and now the Trans Rights Act 2019 violates it.
Another disadvantage of the certification clause is that the district magistrate can only issue the Identity Certificate if the individual has been a resident of the area under jurisdiction of the district magistrate. Blithely assuming that establishing roots and setting up a safe household for a Trans person to stay at place for a period of an year is a given and easy feat, when Trans people have been the victims of constant harassment and consequent displacement for ages. The process of “identification” is not only intrusive but also expensive, another aspect that the government does not take into account.
Additionally this Act overlooks the struggles and structural barriers to institutions and access to facilities by the Trans Community by not making provisions for affirmative action programs and reservations for Trans, intersex and gender nonconforming people in imperative institutions such as education, healthcare and employment.
This makes the community extremely vulnerable to exploitation and further marginalisation and hence the result is antithetical to the Act’s objective to integrate the Trans community in the society. Most members of the trans community turn to Sex work due to lack of access and employment opportunities, where the chances of them being exploited, assaulted and often killed remain high. Reservations and Affirmative action plans were the life support for the Trans community that allowed them to the opportunity to work and earn a living without turning to sex work as a last resort.
The UNDP report of HIJRAS/TRANSGENDER WOMEN IN INDIA, December 2010 stated that almost 71% of trans women were diagnosed with atleast 1 sexually transmitted infection (STI), hence the access denied to the trans community by taking away affirmative actions may also have life threatening consequences.
This Act also discriminates against the Trans community on legal grounds in terms of the punitive measures for sexual violence. The Act claims imprisonment for 6 months - 2 years as punishment for sexual violence against Transgender as opposed to 7 seven years for sexual violence against women. This ruling implicitly values the dignity, security and life of a Transgender as being less important than that of a woman, While the already existing transphobia amongst the society makes it difficult for sexual violence against a Trans Person to be reported and taken seriously, this Act also takes away the deterrance against such crimes being committed.
Perhaps the most thoughtless and yet dangerous aspect of this Act is that requires Transgender people to reside with their Birth Family, without considering that in 90% cases the family is responsible for voilence against the Transperson and the general lack of acceptance of the Third gender in the Indian society. Families more often than not choose to abandon their children in such cases and hence living with Birth families is not a possibility let alone a choice for many. Shock Therapy, forced Gender confirmation surgery, abuse and physical violence are some of the reasons why trans people choose to leave their families in the first place. The Act recommends measures for “rehabilitation” in extreme situations yet does not consider the lack of such safe spaces for the community. Not only does it take away the right of trans people to choose their own family but It also highlights the ignorance of the lawmakers to the plight of the Majority of Transgenders.
The crux of dissonance between the Trans Rights Activists and the lawmakers lies in the fact that the Lawmakers have willfully chosen to ignore the demands and requests of the Trans community and the blatant discrimination and severly harmful consequences that they have to face because of this Act.
The continuous and brazen violation of Right to Equality, Right to Privacy and the NALSA judgement of self-identification emphasizes the harmful and transphobic behaviour of the authorities.The Government’s meagre and parochial understanding of gender, the constant belittling of the dignity and safety concerns of the Trans Community indicates the poorly thought out structure of the Trans Rights Act 2019.
The Act has almost no provisions for protecting the Trans community against discrimination, it does not provide an clear details as to how exactly would this Act achieve its sole purpose ensure protection against discrimination and social and economic mobiltiy. It is considered to be extremely harmful and has been condemned by Trans Rights Activists all across the Nation and the world as being a tokenistic move on the government’s behalf to garner ‘woke points’ with the general masses. This Act does not even provide the bare minimum of safety and protection to the Trans community, instead it aims more towards establishing guidelines of control and behavior determined by stereotypes for a trans person.
While after this bill was passed in the Rajya Sabha in November 2019, it saw vigorous protests, activists all across the country voiced the problematic features of the bill and several information dissemination sessions were conducted to spread awareness and garner strength for opposition, the Government still managed to get it signed in December 2019.
Sadly, immediately after signing of this Act, the nation fell into chaotic dissent over political blunders by the Modi Government. Amidst the protests against Citizenship Amendment Act, NRC, failing economy and political crises, and now a deadly Pandemic, this Act remains largely ignored and continues to fester and harm the Transgender community.