On August 5, 2019, the Transgender Persons (Protection of Rights) Bill, 2019 was introduced in the Lok Sabha. The Bill is a far cry from the promises made to the trans communities in the wake of the Supreme Court’s pronouncement in National Legal Services Authority Vs. Union of India and Others (henceforth NALSA) verdict in 2014.
This is not the first time that the central government has introduced a Bill to ostensibly ‘empower’ the trans communities. Bills have been circulating periodically since 2014. However, none of them have seen the light of day. Most of these earlier Bills contained many problematic provisions which have been vehemently opposed by trans activists and their allies.
The 2019 Bill is another ‘milestone’ in this continuing trend. The criticisms of the Bill have been well articulated by members of trans communities and some are available here, here and here. In a nutshell, these criticisms pertain to the lack of clarity associated with the process of self-determination, exclusion of non-biological kinship networks such as Hijra households from the definition of ‘family’, creating a scheme of lesser punishments for persons inflicting violence on trans persons and enacting a powerless mechanism to address discrimination; and the invisibilization of intersex persons and their specific concerns are just some of the glaring problems with the Bill.
In addition, the Bill’s welfare framework has also been critiqued as inadequate. It uses the language of “rescue, protection and rehabilitation” which many fear can be misused by the State to undermine the autonomy of trans persons. Further, there is no provision in the Bill regarding reservation in education and employment, a long standing demand of the trans communities. The National Council for Transgender Persons does not have corresponding state councils to carry out work at the grassroots and does not have provisions for adequate representation of trans persons themselves. The central government has excessive control over the selection, composition and functioning of the council. This may lead to only powerful voices within the trans communities being heard and dissenting voices being further marginalized.
Constitutionality of the Bill
While there is a general consensus on the Bill being one that fails to meet the aspirations of the trans communities, here, I highlight two particular provisions that are particularly moot for constitutional challenge.
Getting a certificate of identity – violation of privacy and the principle of self-determination
Chapter III of the Bill lays out a framework for recognizing the identity of trans persons. Section 4(2) says that a person identifying as ‘transgender’ has the right to self-perceived gender identity. When read with the definition of ‘transgender’ in Section 2(k) of Chapter I, we see that it includes a trans man and a trans woman whether or not they have undergone any gender affirmative treatment or procedure.
However, Chapter III, Section 7(1) lays out that if a person who has obtained an identification of ‘transgender’ from the State thereafter chooses to undergo “surgery to change gender either as a male or female”, they must provide the District Magistrate with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the institution where the person has undergone the surgery. Once the District Magistrate is satisfied with this proof, they can issue a “certificate indicating change in gender”.
This creates a two layered step for identification. First, a person has to identify as ‘transgender’, thereafter, if they choose to undergo gender affirmative surgery, they must provide a medical certificate to that effect. Thus a trans person who has not undergone gender affirmative surgery cannot identify as ‘male’ or ‘female’ but only as ‘transgender’. This is in direct violation of the NALSA judgment, which had categorically stated that a person can identify in any gender of their choice even without gender affirmative surgery. This provision invalidates that pronouncement by making an expensive surgery a pre-requisite for identifying as ‘male’ or ‘female’.
In this manner, the provision violates the right to privacy in two fundamental ways. First, it hinders self-determination of one’s gender, which is an integral part of one’s personal autonomy, dignity and freedom under Article 21 of the Constitution. Everybody has a right to self-determine their gender identity regardless of whether their chosen gender aligns with their anatomy through a gender affirmative surgery or not. This provision thus serves to reinforce the biological basis of identity which had been expressly rejected in the NALSA verdict.
After the recognition of privacy as a Fundamental Right by the Supreme Court in 2017 in Justice K. S. Puttaswamy and Another Vs. Union of India and Others (henceforth Puttaswamy), there is another way in which Section 7(1) is unconstitutional. Self-determination of gender and any related surgery that one undergoes is private medical information over which one can have a reasonable expectation of privacy. In Puttaswamy, Justice D. Y. Chandrachud makes a distinction between privacy and anonymity when it comes to medical records of an individual.
He notes: “An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the State may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the State preserves the anonymity of the individual it could legitimately assert a valid State interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.”
However, the way Section 7(1) is drafted in the Bill is not meant to preserve anonymity. Instead, it is a violation of the Fundamental Right to Privacy by compelling an individual to disclose whether they have undergone surgery to identify as ‘female’ or ‘male’.
Prescribed punishments in the Bill
Another provision that is likely to fall under constitutional scrutiny is Chapter VIII of the Bill, which deals with offences and penalties. Section 18(d) of the Bill says that whoever “harms or injures or endangers the life, safety, health or well-being of a transgender person” or does any act that would amount to “physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse” shall be punishable with a minimum imprisonment of six months but that does not exceed two years, and with a fine.
There are several issues with such a provision. First, it can be argued that this provision makes the law ‘manifestly arbitrary’. This is a principle which enables a court to strike down a law if it appears to the court that the legislature has enacted a law ‘capriciously, irrationally and/or without adequate determining principle’.
The terms physical, economic, verbal, emotional and sexual abuse have not been defined. In the context of this Bill, where such actions of abuse can lead to imprisonment, clear definitions are essential. Second and more importantly, all the myriad acts of abuse have been clubbed together under one umbrella, to be meted out the same punishment. Arguably, this makes the law manifestly arbitrary. In the judgment on instant triple talaq, Justice R. F. Nariman had opined that a legislation can be struck down on the ground of manifest arbitrariness alone. If the Transgender Persons (Protection of Rights) Bill, 2019 is challenged in court, this could be a core argument against the Bill.
Perhaps the strongest argument against Section 18(d) is the fact that it violates the classification test embodied under Article 14 or the Fundamental Right to Equality. As per this doctrine, if a legislation creates two categories and treats them differently, it must show that the classification was on the basis of ‘intelligible differentia’, and second, there must be a ‘rational nexus’ between the differentia and the object that the legislation seeks to achieve.
The Transgender Persons (Protection of Rights) Bill, 2019 does not envision rape in the context of trans persons. It mentions sexual abuse in passing without defining it. Even if rape could be interpreted as a form of sexual abuse, there is a huge difference in punishment between sexual abuse under the Bill and rape under the Indian Penal Code (IPC), 1860. In the IPC, rape of a cis woman is punishable with a minimum of 10 years of imprisonment. The Bill, on the other hand, has a maximum punishment of two years for sexually abusing a trans person. This leaves a gaping hole when it comes to criminalizing rape against trans persons.
The Bill, therefore, leads to the creation of two categories of victims – ‘cis women’ and ‘trans persons’ – and treats them differently by acknowledging the possibility of rape for the former but not for the latter. If sexual abuse is interpreted as including rape, under the Bill, then also Section 18(d) creates an artificial distinction between the rape of a cis woman and that of a trans person by providing a much lesser punishment for rape than under the IPC.
This differential treatment of rape / sexual abuse does not satisfy the reasonable classification test under Article 14 of the Constitution. If the objective of the legislation is to ‘protect’ trans persons, that objective cannot be met when a heinous crime like rape is not only not defined, but has also not received a punishment commensurate with other similar provisions in the Indian legal system.
Potential next steps
Given that the Bill has now been passed in the Lok Sabha, the only obstacle in its enactment is its passing through the Rajya Sabha. I spoke to some of the members of the trans communities to ask them what could be a roadmap for future action against the Bill. Dr. Karthik Bittu, Associate Professor of Biology and Psychology at Ashoka University, Sonipat suggested that one way could be to get the Rajya Sabha refer the Bill to a Select Committee for a review of its provisions.
Sowmya Gupta, Deputy Program Manager with Humsafar Trust, Delhi felt that while referring the Bill to the Select Committee might persuade the legislature to make amendments, it would considerably delay the Bill being passed. She feared that this delay could be leveraged by the government as a political tool to divide the trans communities. She also pointed to the need for maintaining a dialogue with Members of Parliament supportive to their cause, such as Shashi Tharoor and Supriya Sule. As important it is for the law to be enacted, Sowmya Gupta emphasized the importance of collecting socio-economic data on trans persons, which would inform the welfare provisions in the law.
At this point of time, many in the trans communities are waiting to see whether the Bill passes through the Parliament before thinking of strategies to bring forth a legal challenge to the law. What is clear, however, is that while the law can definitely be challenged on some of the grounds discussed here, the project of bringing about a law that aligns with the aspirations of the trans communities is still distant.
It can only happen outside the court rooms through a process of dialogue with the State. That remains a battle for the long haul.