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Pride Month Special: From NALSA Judgement To Transgender Persons Act, 2019, Where Does India Stand In Protecting Transgender Persons?

The transgender people in India have been fighting for equality and their rights for years. A look at some of the legal provisions that are there to protect their rights and for their welfare, and where are the gaps between the policy its implementation

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From NALSA Judgement To Transgender Persons (Protection of Rights) Act, 2019, Where Does India Stand In Protecting Transgender Persons?
The transgender people in India have been fighting for a place in the mainstream for decades and for their rights for the past 15 years, seeking a legal declaration of their gender identity rather than the one assigned to them (male or female).

New Delhi: Seldom does the society realise the trauma and pain the members of the transgender community undergo on a daily basis. For decades, the community has faced rejection, humiliation and neglect, be it in public places, education institutions or hospitals, being shunned, bullied and even assaulted the failure of the society in being open, inclusive, aware and accepting of realities of gender identities that are not binary as widely believed.

The transgender people in India have been fighting for a place in the mainstream for decades and for their rights for the past 15 years, seeking a legal declaration of their gender identity rather than the one assigned to them (male or female). their voice was recognised in 2014, when the Supreme Court of India passed the National Legal Services Authority (NALSA) judgement, a landmark verdict that declared transgender people the ‘third gender’, affirming that the fundamental rights granted under the Constitution of India will be equally applicable to them, including the right to self-identify their gender as male, female, or third gender.

This judgement came as a fresh ray of hope for the transgender community, which has long suffered in silence in the face of large-scale discrimination and social injustice. It helped the community receive social recognition and entitlement, addressed the significance of possibly providing reservations to the community members, issue identity cards, including the Aadhar card, Pan card, etc., and ensure access to legal rights, among others.

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Talking about the judgement, Abhina Aher, Transgender activist and President of TWEET foundation (pronouns: She/Her), said that from being sidelined, this legal recognition brought them into the realm of the society.

The community was extremely stigmatised. Coming under the law gave the right to approach the police to file a complaint if a community member was sexually abused, like any other person, which was not the case earlier.

Taking the initiative forward, the government came up with the Transgender Persons (Protection of Rights) Bill 2019, which was formed into an Act by January 2020 after the President’s approval. The Act aims to protect the rights of transgender people and cover their welfare.

Transgender Defined Under The Act

The Act has defined a transgender person as one whose gender does not match the gender assigned at birth, which includes trans-men and trans-women, gender-queers, persons with socio-cultural identities such as kinnar and hijra, and persons with intersex variations (a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of a male or female body).

Being Recognised As A Transgender Under The Act

In order to be recognised as a transgender person, an individual has to apply to the District Magistrate for a certificate of identity. In the case of a minor applicant, a parent or a legal guardian must submit the application. The District Magistrate shall issue the certificate after following the procedure prescribed under the Act.

Provided by the Ministry of Social Justice and Empowerment, the Transgender Certificate and Identity Card (TG Card) is nationally recognised and is a mandatory document to avail of the welfare measures being provided under the SMILE (Support for Marginalised Individuals for Livelihood and Enterprise) scheme. The certificate will be put on record for all the official documents of the person.

In a case, where individuals undergo surgery to change their gender, they may make an application, along with a certificate issued either by a Medical Superintendent or Chief Medical Officer of the medical institution, where the person underwent surgery, to the District Magistrate for a revised identity certificate. The person holding a certificate of identity is entitled to change their first name on the birth certificate and all other official documents.

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Provisions Related To Education, Social Security And Health Of Transgender Persons

Prohibition On Discrimination: A transgender person should not be discriminated against for recognising their identity. Besides, transgender people should not be denied employment opportunities, access to any goods, accommodations, facilities, or healthcare services available to the general public, along with the right to movement, purchasing or renting a property, or standing for or holding public office. A transgender person shall not be denied access to education. Additionally, the institutions funded or recognised by the government must provide inclusive education and opportunities for sports, recreation, and leisure activities for transgender people.

Establishment of the National Council for Transgender Persons: The Act talks about the establishment of a statutory body, ‘National Council for Transgender Persons’. The Council will be responsible for advising the central government on the formulation of policies, programmes, legislation, and projects with respect to transgender persons; monitoring and evaluating the impact of policies and programmes designed for achieving equality and full participation of transgender persons; reviewing and coordinating the activities of all the departments; redressing grievances of transgender persons; and performing other functions as prescribed by the Centre. It was established and the government also conducted almost three to four meetings in the last two years.

The council was established, but the members of the committee felt they were chosen to just give tick mark for the government agenda. The council members, Laxmi Narayan Tripathi, Aryan Pasha, Zainab tried to push the government on pending funding for ‘Garima Greh’ shelter homes, but it has not been taken seriously, Abhina Aher said.

Establishing Welfare Measures: The Act mandates the central and state governments to formulate measures for the welfare of transgender people to ensure their inclusion in society. There must also be measures that are transgender sensitive and convey the message of non-stigmatisation and non-discrimination. Under the Act, the government shall also take appropriate steps to ensure the rescue, security, rehabilitation, and protection of the rights of the transgender person.

According to the Supreme Court, all transgender persons are entitled to fundamental rights under Article 14 (Equality), Article 15 (non-discrimination), Article 16 (Equal Opportunity in Public Employment), Article 19(1)(a) (Right to Free Speech), and Article 21 (Right to Life) of the Indian Constitution.

According to the Act, the central and state governments shall set up separate Human Immunodeficiency Virus (HIV) Sero-surveillance centres to prevent the spread of HIV among transgender persons, in accordance with the guidelines issued by the National AIDS Control Organisation (NACO).

The governments shall provide medical care facilities, including sex reassignment surgery, hormonal therapy, laser therapy, etc., along with counselling before and after medical procedures. The governments shall also conduct research for doctors to address the specific health issues of transgender people, facilitate their access to hospitals, and cover their medical expenses.

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Penalties Under The Act

Punishable offences under the act are: if anyone compels or entices a transgender person to take part in forced or bonded labour, other than any compulsory service imposed by the government; denies a transgender person the right of passage to a public place, or obstructs such access; forces or causes a transgender person to leave a household, village, or other place of residence; or harms or endangers the life, safety, health, or well-being – whether mental or physical – of a transgender person, or engages in physical, sexual, verbal, emotional, or economic abuse against them. In all such instances, the person or persons shall be punishable with a fine, and imprisonment of at least six months and up to two years.

Reservations To The Act

The Transgender Persons (Protection of Rights) Act, 2019, has met with opposition from transgender activists and members of the community. The reasons for the opposition range from bizarre punishment clauses, to humiliating identification conditions and a lack of reservations for trans people.

Harish Iyer, India’s prominent equal rights activist, who identifies as a genderfluid person, said that the Act had intent and content but no application.

From the NALSA judgement to this Act, we have not seen their implementation successfully at ground level. The Act was brought to end discrimination against community members in accessing education, employment, and healthcare, and recognise the right to self-perceived gender identity, but their harassment continues endlessly, from daily living to job scouting.

Abhina Aher, said that availing a transgender certificate itself comes with its own hassles.

Many transgender persons have faced refusals from the District Magistrates for availing of the identity certificate. They have been victims of bureaucratic red tapism, while others have been scared to go to the DM because they have been asked unusual questions about their genitals, sexual preferences, and the kind of surgeries they have undergone.

Talking about the minor application, Mr. Iyer said there are no provisions under the Act for minors who experience sexual violence, abuse, or assault by a parent or a local guardian.

What is the guarantee that the application for the minor will be filed? How are we gauging that and what happens if parents or the guardians are the perpetrators of the violence?

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Abhina Aher detailed other lapses in the Act. The 47-year-old said that the penalties mentioned in the act are mild.

For discrimination against the community, the imprisonment is of at least six months and lasts up to two years, irrespective of the kind of crime committed against the transgender person. So, if any of the members is discriminated against or sexually abused, the punishment for the acts remains the same, which is unfair. Even now, there are multiple unreported and under-reported cases of murders and rapes of transgender persons in India, and these penalties do not serve the purpose.

Secondly, the Act talks about the protection of transgender people by rehabilitating them. But instead, people need to be empowered, Ms Aher said. Let us look at some of the government welfare measures:

Garima Greh: One of the welfare measures that the government took under the Act was the establishment of Garima Greh, the shelter homes for transgender persons with basic amenities like shelter, food, medical care, and recreational facilities. About 12 such shelters were established in Delhi, Bengaluru, Maharashtra, and other states and union territories. These were handled by the National Institute Of Social Defence (NISD) and the watchdog was the District Magistrate (DM). Ms Aher informed that during the first six months of the establishment, the government provided the finances, but there has been no financial inflow since then.

No money came in despite providing multiple audit reports for almost one and a half years.

Ms Aher takes care of two shelter homes: Garima Greh shelter home in Mumbai’s Goregaon for transmen and transwomen, and Aasra in Gurgaon for transmen. These shelter homes provide skill development courses, life skills, career counselling programmes, and other grooming sessions. Additionally, Aher and her team also prepared the community members for moc interviews and made them computer literate. All the training and programmes are conducted under the initiative called ‘Gurukul’.

In the span of one and a half years, these shelters have trained more than 55 community members, and 60 per cent of them are employed. Mr. Aher has been able to continue the functioning of only one of the 12 Garima Grehs, as most of them have now shut down.

Almost 30-25 per cent are already shut down, and the remaining shelter homes are functioning with minimal financial assistance. Every time we ask about the reports submitted; the officials say that file is stuck in the Social Justice Ministry. Now they say the money will come this July. We are just hopeful.

Ayushmann Transgender Health Card: Under the National Institute Of Social Defence (NISD), the government also launched the Ayushman Transgender Card (TG Card), which was supposed to provide financial support of up to Rs 1 lakh for Sex Reassignment Surgery (SRS). But it never saw the light of the day, as there has been no financial grant provided to put the initiative into implementation till now.

Speaking of the healthcare facilities in the hospitals, Ms Aher said that there are hardly any hospitals that have a specific ward for the transgender people, including the ones that conduct sex reassignment surgery, hormonal and laser therapies. Only one hospital in Mumbai has seven to eight wards, and currently, there are talks that Delhi’s All India Medical Institution (AIIMS) is in the process of kick-starting sex change surgeries.

Sero-surveillance Centres: There are zero separate ‘Human Immunodeficiency Virus Sero-Surveillance centres’ by the central and state governments, which, under the Act, were aimed to contain and prevent the spread of HIV among transgender persons.

Transgender activist Rudrani Chettri, informed that the prevalence of HIV among transgender people in India is very high.

The rate of infection among the community is still higher than that of the general population. Knowing the vulnerability, the state of the country is poor, she added.

But there are a couple of private clinics in the country that have proven helpful for the community, for example, the MITR clinic, which was started by ‘Safe Zindagi’, an organisation raising awareness about HIV-AIDS. It is working closely with the help of ‘Programme ACCELERATE’ and the National AIDS Control Organisation.

In the healthcare facilities, community members have faced discrimination, due to which many drop out in the middle of treatment. Abhina Aher gave an example of known case,

A transgender person who was receiving HIV treatment in Mumbai dropped out in the middle because the doctor was calling from the ‘dead’ name (the name given to the person at birth and now changed after the sex reassignment surgery). Many of us are misgendered, and this shows the level of insensitivity in our community.

She further spoke about the silent stigma that prevails around the transgender community in healthcare facilities.

The doctor may not come to visit even if it is an emergency, or they may provide the basic medication and avoid admission in the hospital. I have been told about several such incidents by my peers.

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Measures For The Welfare Of The Transgender Community

  • Harish Iyer said that the government needs to invest in normalising the existence of the transgender community, by conducting multiple sensitisation programmes about the transgender community and reaching out to the general public with the message of non-discrimination.
  • Ms Aher emphasises the need for more resourcing to establish more shelter homes like Garima Greh graphs, which will help the community relive their lives with dignity.
  • She also urged the government to accelerate employment opportunities for transgender people within the government machinery. For example, the Chhattisgarh Police have recruited around 13 transgender persons as constables; in Pune, the Municipal Corporation (PMC) has appointed 25 transgender people on a contract basis to provide security to various civic establishments, including its headquarters.
  • Dalit transgender activist, Grace Banu, who has been fighting for the reservation for the transgender community has reiterated time and again about the need for a horizontal reservation for the community in education and employment, rather than vertical. Horizontal reservation means separate reservation within each category including general, scheduled tribe, scheduled caste, etc.  Whereas in veritcal category, everyone is clubbed together and in this mode, the trans community has to compete with other categories for reservations, which further minimises their chances of getting a seat. Several transgender persons have taken examinations of Public Service Commission, Eligibility Tests, etc., but they have been unemployed due to lack of reservation.
  • Ms Aher highlighted the need to reserve a seat for transgender people at the Rajya Sabha. “Who will talk about the ordeal of the community members if not someone from the community itself?”
  • Both Mr Iyer and Ms Aher emphasised the need for stringent penalties for abusing a transgender person.

Several petitions have been filed at the Supreme Court by the LGBTQIA+ activists and the persons from the community, stating that the Transgender Persons (Protection of Rights) Act, 2019, violates the fundamental right guaranteed under Articles 14, 15, 16, 19 and 21 of the Constitution. However, if the above measures are taken into consideration, the community can look towards progress than just focusing on combating the decades-long discrimination.

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