Drawbacks of the Transgender Act, 2019

The author, Delicia Getzi, is a third year student at St. Joseph's College of Law, Bangalore.

A woman is strangled to death[1]. Another is raped and later commits suicide[2]. A third is murdered in the most horrific way possible[3]. All three of these deaths barely make the news, and all three of the victim are transgender women. Few will remember their suffering, and the law will not even punish the perpetrators of their rape with the same severity of the rape of a Cis-Woman[4]. The Transgender Act of 2019 is a travesty of justice; it not only humiliates transgender persons but also destroys years of progressive work by the courts with its regressive provisions.

The Act requires transgender persons to obtain their gender identity only through a certificate provided by a district magistrate[5]. The requirement for a certification violates a person's right to self-determination of gender, which has been upheld by the Supreme Court of India[6]. Furthermore, transgender individuals who wish to identify as male or female must undergo a sex reassignment surgery or an equivalent procedure, and they must be further examined by a chief medical examiner[7] on the "correctness of their gender"[8]. Forcing surgery to determine one's gender is regressive and wrong; it violates our dignity and takes away from us the choices that make us human.

Disturbingly still, in the case of rape of a transgender person, the Act provides for a lower sentence when compared to the rape of a Cis-woman[9]. There is no rational-nexus to decree a lower punishment for the rape of a transgender person, and this is indicative of the fact the lawmakers do not treat atrocities against transgender persons with the same gravity as against other persons. Ultimately, this shows that the Act still regards transgender persons as subhuman.[10].

Transgender persons are often pariahs in their own homes and ostracized by their birth families. They find acceptance and empowerment in the Transgender Community, which creates for them a bastion of refuge[11]. The Act however, places Transgender persons who face abuse in rehabilitation centres rather than in the care of the transgender community where they could be wholly accepted and supported[12].

The humiliating provisions requiring surgery, regressive gender identification, and the lax quantum of punishment, are but a few amongst the numerous drawbacks of the Act. Discrimination masquerades under the veneer of safeguards, and ultimately does more damage than good. Transgender persons have endured millennia of suppression and hate. It is paramount that their visceral cry for justice, be answered with a law that rightfully and comprehensively protects them.

References

1. NewIndianXpress, Tamil Nadu transgender's murder: Gowri was strangled to death, say police The New Indian Express (2017), https://www.newindianexpress.com/cities/kochi/2017/aug/20/tamil-nadu-transgenders-murder-gowri-was-strangled-to-death-say-police-1645615.html (last visited Sep 22, 2020).

2. Special Correspondent, Transgender ends life in Palani The Hindu (2015), https://www.thehindu.com/news/national/tamil-nadu/transgender-ends-life-in-palani/article7189510.ece (last visited Sep 22, 2020).

3. Transgender person found dead in Kerala under suspicious circumstances, The News Minute (2017), https://www.thenewsminute.com/article/transgender-person-found-dead-kerala-under-suspicious-circumstances-66866 (last visited Sep 22, 2020).

4. Section 18, The Transgender Persons (Protection Of Rights)Act, 2019, No.40.

5. Section 6, The Transgender Persons (Protection Of Rights)Act, 2019, No.40

6. National Legal Services Authority vs Union Of India & Ors, (2014), AIR 2014 SC 1863.

7. Section 7(2), The Transgender Persons (Protection Of Rights)Act, 2019, No.40

8. Bhalla, J., 2020. Examining the Transgender Persons (Protection of Rights) Bill, 2019. SPRF. Available at: https://www.sprf.in/post/examining-the-transgender-persons-protection-of-rights-bill-2019 [Accessed September 22, 2020].

9. Section 18, The Transgender Persons (Protection Of Rights)Act, 2019, No.40. Bhalla, Supra Note 8.

10. Paliwala, M., 2019. Transgender Bill, 2019: Empowerment or Institutionalised Oppression. iPleaders. Available at: https://blog.ipleaders.in/transgender-bill-2019/ [Accessed September 22, 2020].

11. Wintemute, R., 2019. Lesbian, gay, bisexual and transgender human rights in India. Human Rights in India, pp.152–178.

12. Paliwala, Supra Note 10.

Image Credits: https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating