The Transgender Persons (Protection of Rights) Act, 2019 (the Act) came into effect on December 5, 2019 amidst much criticism and protests by the transgender community and activists in India. The Act is a revised version of the Transgender Persons (Protection of Rights) Bill, 2018 (2018 Bill), which had lapsed in the Upper House of the Parliament.
One of the main provisions of the Act provides that the issuance of a certificate of identity as a transgender person is conditional upon the “procedure” prescribed by the executive, leaving transgender people vulnerable to invasive procedures, which can be introduced at the whim of the executive. This fear is cemented by the fact that under Rule 4 of the draft rules, released by the Ministry of Social Justice and Empowerment, such a certificate will only be issued after a report of a government hospital psychologist is produced, and verified by a District Magistrate.
Furthermore, the Act requires transgender persons to undergo sex reassignment surgery, after which they would become eligible for receiving a certificate of identity as a member of the opposite sex to the one assigned at birth. The process of legal recognition of gender identity under the Act takes away the right of self-determination of gender and makes the recognition conditional upon the bureaucratic scrutiny of the body of the trans subject, which I argue is enabled by the contradictions in the Indian Supreme Court’s judgement in the case of NALSA v. Union of India (NALSA) on the right to self-determination of gender.
Under the Act, a transgender person has the “right to be recognised as such, in accordance with the provisions of this Act”. Since the recognition of the person as ‘transgender’ is subject to the provisions of the Act, the procedure of such recognition is of paramount importance. The 2018 Bill contemplated the constitution of a District Screening Committee (DSC) which, inter alia, included a government officer, medical officer and a psychiatrist/psychologist. The committee would consist of only one member from the transgender community. Pursuant to the recommendation of the DSC, the District Magistrate would issue a certificate of identity as a transgender person. The constitution of the DSC was one of the most criticized aspects of the 2018 Bill, since it would not only have forced transgender persons to consent to a psychological and medical examination, but would also have reinforced the notion that transgender identity is a subject of medical evaluation and not just another gender variation.
The Act does away with the constitution of a DSC. However, Section 6 of the Act provides that the process of issuance of the above certificate of identity by the District Magistrate is subject to “such procedure and in such form and manner, within such time, as may be prescribed” by the executive. This provides significant room to the executive to make rules in this regard that could equally violate a transgender person’s constitutional right to privacy and dignity recognised by the Supreme Court of India in the NALSA judgement (paragraph 66). As noted above, the draft rules introduced by the Ministry of Social Justice and Empowerment provide that the right of self-determination as a transgender person is conditional upon psychological evaluation.
The draft rules were released on April 18, 2020 for the purpose of public consultation and the deadline for submitting the comments was May 18, 2020. The release of the draft rules during the lockdown imposed due to the Covid-19 pandemic has made mobilisation against the provisions of the rules difficult. Further, Section 7 of the Act makes the legal recognition of a person, as a member of the opposite sex to the one assigned at birth, conditional upon “surgery to change their gender“.
The above provisions are at odds with the right to self-perceived gender identity provided under Section 4 of the Act. However, the contradictions between the bureaucratic screening and imposition of gender identity, and gender self-determination under the Act, is in continuation of the oscillatory approach towards the recognition of gender identity adopted by the NALSA judgement. Although the judgement was celebrated for its recognition of transgender identity and affirming the constitutional rights of the transgender persons, its interpretation and implementation by the lower judiciary, has been inconsistent, wherein the courts have used sex reassignment surgeries (SRS) or psychological evaluation as the basis of recognition of gender identity.
Under the operative part of the judgement, written by Justice K.S. Radhakrishnan and Justice A.K. Sikri, a transgender person’s right to decide their self-identified gender has been upheld and the Centre and State Governments have been directed to grant legal recognition of their gender identity, such as male, female or third gender (paragraph 129), without any mention of medical procedures as a requirement for legal recognition of the that identity. However, the ‘grant of legal recognition’ by the government has opened the door for policing of gender identity by bureaucratic committees.
Furthermore, Justice Radhakrishnan, while advocating for self-identification of gender, suggests a psychological test to determine sex and gender (paragraph 75). Justice Sikri’s opinion is even more restrictive and uses biological essentialism for the granting of constitutional rights. He opines that “a person has a constitutional right to recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well” (paragraph 106). The observations of the judges, hence, are open to interpretation enabling the Indian Parliament to pass an Act which is antithetical to the idea of self-determination of gender. Simply put, the process for recognition before the law and control over one’s own body should be separate from any medical interventions. But if in case, an individual’s personal identity or transition process requires medical support, those services should be made available and be accessible.
In addition, the process of legal recognition of gender identity, conditional upon bureaucratic screening and medical procedures, violates the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles), which although not legally binding, are considered as the international standard in combating gender identity based discrimination. Upholding Yogyakarta Principles as a part of Indian law by the Indian Supreme Court in the NALSA judgement and Navtej Singh Johar v. Union of India should be seen as a watershed moment for Indian Transgender Activism and the government must try to bring this Act in line with it to do justice to this community. Meanwhile, the Act has been challenged in the Supreme Court but, it is hoped that the principles such as self-determination of gender are adhered to in letter as well as spirit and are not violated under the name of psychological tests (which are typically based on binary frameworks e.g. “being trapped in the wrong body”) or a biological test, both of which are exclusionary and not inclusive of the varied ways in which gender is experienced.
ABOUT THE AUTHOR
Aishwarya Singh is qualified to practice law in India. She is interested in constitutional law, anti-discrimination law and international human rights law.