Written by: Shaika Siddique, Student, Aligarh Muslim University
Alejandro Fearnhead said, “Life is not a competition between men and women. It is a collaboration”.
We all very well recognise the societal notion of gender that is male and female. But what we have awfully failed at realizing and validating is the third gender that is the trans community. Cecil Francis Alexander said, “All creatures great and small, the Lord God made them all”, does the “all” is exclusive of the trans people? The historic NALSA judgement delivered on 15th April, 2014 conferred the status of the third gender on the wide spectrum of the trans people. But what is disheartening is that the judgement has been greatly defined by both – legislature and society at large.
Harry Hyde said, “ Law is to protect the weak from the poor.” Despite the judicial confirmation of the trans as the third gender, the legislature has flouted the judicial pronouncement in letter and spirit and the TRANSGENDER PERSONS(PROTECTION OF RIGHTS) ACT, 2020 is in stark contrast to the NALSA decision and labelled as a draconian law by the trans community.
With such gender discriminatory law, it seems to be correct what Elizabeth Broderick said, “Gender equality seems to be an unfinished business of the 21st century”.
VARIOUS PROVISIONS UNDER THE INDIAN CONSTITUTION THE RIGHTS OF TRANSGENDER COMMUNITY
PREAMBLE OF THE CONSTITUTION
The Preamble gives a direction for the interpretation of the statute hence it is a guiding star of the Constitution.
Moreover remembering the Preamble is what we should not ignore as it commences with the word "WE THE PEOPLE......", which significantly addresses the inclusivity envisioned in our Constitution.
In Kesavanand Bharati v. the State of Kerala,Chief Justice Sikri narrated, " it seems to me that the Preamble of our Constitution is of great importance and the Constitution should be read and interpreted in the grand and noble vision expressed in the Constitution.
In Union of India v. Madangopal, the Supreme Court held that, “Our Constitution as appears from the preamble derives its authority from the people of India.”
ARTICLE 14
Article 14 envisages the principle of "equality" that is equality before law and equal protection of all before the law. The word "any person" used in art. 14 takes everyone within its gamut along with the binary notion of gender. Under Article 14 Constitution willingly recognizes every other person also, who could not fit themselves in the prejudicial social concept of gender. Most probably what the framers of the Constitution would have intended at the time of inserting the word "any person" is to make our Constitution cover the widest spectrum of the population be it a sexsual minority though.
ARTICLE 15 & 16
Articles 15 & 16 strongly condemn any kind of discrimination on ground of "sex". Any kind of discrimination on ground of sex in regard to access of hotels, restaurants, well, bathing tanks etc. or in terms of opportunity, employment will not be entertained. Constitution makers, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. By interpreting the term "sex" and confining it to the binary notion of gender will be a regressive move.
ARTICLE 19(1)(a)
Articles 19(1)(a)of the Constitution states that every citizen shall have the freedom of speech and expression albeit subject to reasonable restrictions foisted upon by the state under article 19(2). The freedom of expression inherently carries within itself the citizens right to express his self identified gender. The expression of self identification of gender could be furthered by way of dressing, speaking in different language or by other means. No restriction is to be placed on this expression until it attracts any of the parameters laid down in article 19(2).
There has been myriad foreign judgements which has upheld the right to dress in a way which is in alignment to one's self identified gender. Whereas dressing in a particular way which is in conformity to one's self identified gender is just a facet of celebrating the freedom of expression although there could be different ways in which one can enjoy the freedom of expression such as mannerism, speech etc.
The Supreme Court of the State of Illinois in the City of Chicago v. Wilson et al., struck down the municipal law prohibiting cross-dressing, and held as follows “the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy and personal integrity that ….. the Constitution was designed to protect.”
In Doe v. Yunits et al.,the Superior Court of Massachusetts, upheld the right of a person to wear school dress that matches her gender identity as part of protected speech and expression and observed as follows :-“by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with the gender. In addition, plaintiff’s ability to express herself and her gender identity through dress is important for her health and well- being. Therefore, plaintiff’s expression is not merely a personal preference but a necessary symbol of her identity.”
Expressing ones gender, is the basic ,which the freedom of expression could guarantee. Undoing it will be to force a soul in a body which it does not recognizes.
It's doleful that often the state and its authorities are seen ,either out of ignorance or purposefully, to mock the sexsual orientation of these people and even goes much ahead to the extent of harassing them physically and psychologically. The state has no authority to interfere with a person's way of expressing itself subject to article 19(2). The apathetic and inhumane treatment meted out to the transgender reminds me of a saying by Friedrich Nietzsche:
"And those who were seen dancing were thought to be insane by those who could not hear the music"
Simply it is rather the way they intrinsically feel which they express (constitutionally guaranteed).
ARTICLE 21
Considered as the heart and soul of the constitution, article 21 stands for Right to life & personal liberty. The article manifest itself in various aspects such as right to live with dignity etc. The word "life" connotes a life worth living and not mere animal existence. In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that, “by the term “life” as here used something more is meant than mere animal existence. Right to life is pertinent to our existence which makes life complete, meaningful and worth living. This right is guaranteed to every natural person which definitely surpasses the impediment of male-female.
Right to dignity, a facet of article 21 innately carries with it the right to recognise and assert ones gender without any interference. In, Francis Coralie v.Union Territory of Delhi , this Court held that the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes “expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings”.
Protection of “personal autonomy” of an individual, another facet of article 21. In Anuj Garg v. Hotel Association of India this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
DIRECTIVE PRINCIPLES OF STATE POLICY
Reference can be traced in Article 39(A) which speaks for the "citizens", male and female. The word "citizen" mention along with the male and female gender clearly contains an indication of encapsulating those who do not associate themselves to the male or female category.
The past years shows a clear picture of the plight of these transgender and the historical legal atrocities inflicted in guise of the Criminal Tribe Act, which is the manifestation of a draconian law and the diurnal humiliation and disgust of the society coupled with the indifferent treatment meted out by the police is sufficient to make them eligible to justify their presence as a weaker section of the society. Article 46 provides for the state to promote with special care the economic and educational interest of the weaker section.
LEGISLATIVE ACTION PURSUANT TO THE NALSA JUDGEMENT
Succinct Explanation of the story from a progressive(Rights of the Transgender Person Bill, 2014) to a regressive(Transgender Person (Protection of the Rights)Act,2020) legislation.
Aniruddha Dutta, an academic and transgender rights activist told The Wire: “Leave alone the implementation of concrete steps, even the spirit of the NALSA judgment is being blatantly disregarded.”
While the NALSA judgement was still pending, an expert committee report, after consultation with the Ministry of Social Justice and Empowerment, was published in 2014.
In this background, Tiruchi Siva of the Dravida Munnetra Kazhagam party introduced the Rights of the Transgender Person Bill, 2014. While bill was passed by the Upper House it continues to be pending in the Lok Sabha.
However the government tabled the Transgender Person (Protection of Right)Bill,2016. The provisions of the 2016 Bill was regressive as compared to the 2014 Bill. The 2016 Bill received criticism from the trans community across India and ultimately it was referred to the standing Committee, which submitted its report in July 2018. The Lok Sabha incorporated the suggestions of the Committee and tabled a new version of the bill, however it still received criticism and ultimately the 2018 bill lapsed.
The bill was reintroduced in July 2019. The bill was passed in Lok Sabha and Raj Sabha. It received the President's assent on 5th December ,2019 and came into force on 10th January,2020 as the Transgender Persons (Protection of Rights) Act, 2019 .
On April 16, 2020, following the Acts notification the government circulated the Drafts Rules for public feedback. Manner, form and process by which persons may be recognized as transgender are specifically provided by the Drafts Rule.
NALSA JUDGMENT v. THE TRANSGENDER PERSON(PROTECTION OF RIGHTS)ACT, 2020 – A WIDE GAP
The enactment of the Transgender Person ( Protection of Rights)Act, 2020 has received no rejuvenation from the trans community rather it has been termed as draconian legislation.
By the perusal of the Legislation and the Supreme Courts judgement it crystallizes out that the legislation has defied the NALSA judgement and some of the provisions of the Act are in stark contrast to what the Supreme Court laid down in its Judgement.
The two points which forms the core of the judgement and which has been not been bothered about in the Act are;
Self-identification of gender and
Reservation for the trans community in educational institutions and government appointments.
Various provisions of the Transgender Person (Protection of Rights) Act,2020 inconsistent with the NALSA Judgement.
Definition of "Transgender" and "person with intersex variation" conflated leading to confusion.
The word "discrimination" has not been defined.
No self-identification of gender- The Act does not advocate the self identification of gender, contrary to what the Supreme Court has asserted in its judgement , and demands for the documents as prescribed under section 5 of the said Act for getting a Certificate for being recognized as a transgender.
The deceitful provision in guise of section 7 to fall within the binary notion of gender- When the Act deals with the transgender, the provision stressing the Sex Reassignment Surgery(SRS) is a sham. No certificate, no recognition and benefits - Section 6(3) states "certificate issued to a person under sub-section (1) shall confer rights and be a proof of recognition of his identity as a transgender person.
Chapter 4 dealing with welfare scheme is vague - Nothing substantive could be derive by the perusal of section 8(1),(2),(3),(4)&(5).
Educational, Social Security and Health of the Transgender Person - There is no mention of reservation so far the education of the community is concerned. Even the medical care facility does not gives a clear picture of the benefits.
Penalties - A maximum of just 2 year penalty is given for any kind of abuse or injury caused to them. Whereas for the same offence the penalty period for the other gender is more than two years.
CONCLUDING REMARKS
Maya Angelou said ,“We shall all know diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal in value no matter what their colour is.” Gender inclusivity is benign, rather it will promote and will allow the nation to thrive towards excellence in all field with its entire man power. Their claim to be included in the gender gamut is their right, and it’s doleful that they have to beg for what they are entitled to morally and legally. What is that factor which makes them look inferior to the entire society? Did God created just Adam and Eve?
Indian have adhered for ages to the principle of “Vasudhaiva Kutumbakam”, the sanskrit phrase which means that “the whole world is my family”, is this not inconsistent to to our 21st century practice of excluding the trans community from being recognized as a gender.
Despite being judicially sanctioned as the third gender why has the legislature left them at the mercy of certain authorities for being recognized as someone what they internally feel as. Self identification of gender is a pertinent trait of Right to live with dignity as emphasized by the Supreme Court.
Sensitizing the society is yet another herculean task, as their belief and practice of of treating the trans people with contempt has hardened over the years. We have to understand and put our belief in the age old saying that, “ in unity there is beauty and strength.”
Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.
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