[This is a guest post by Manasi Bhushan and Gauri Nar. The first part of the article can be accessed here: Path to the recognition of the Third Gender]
Legal Provisions regarding Sexual Crimes against Transgender
Even after legal recognition as a Third Gender, transgenders are lacking legal measures to safeguard their community from sexual abuse. Transgenders’ right to equality, right against discrimination and right to life guaranteed by Article 14, 15 and 21 respectively of the Indian Constitution are violated due to lack of gender-neutral rape laws in the country. Section 375 of Indian Penal Code (IPC) states “A man is said to commit rape if he penetrates his penis, any object, and any part of his body to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person”. This Section clearly recognises women as a victim and has ignored transgenders as victims. Likewise Section 354, 354A, 354B and 354C of IPC deal with other sexual offences which are women-centric in terms of recognising them as victims and have blatantly ignored transgenders as victims. Thus the criminal jurisprudence has failed to provide enough protection to transgenders against sexual abuse.
Legislature passed The Transgender Persons (Protection of Rights) Act, 2019 which came into force on 5th December 2019. As the name suggests, this Act aims to protect the rights of the transgender and is meant for their welfare. However, many trans activists opine that the Act is detrimental to them as the bill does not specifically differentiate between transgender, transsexuals, intersex persons and genderqueer. The Bill has also not provided any self-identification rights, as was promised by the National Legal Services Authority v. Union of India [(2014) 5 SCC 438] judgment. They have removed the word ‘screening committee’ from the Act, however, the Act states that while issuing a gender identity certificate to a transgender the District Magistrate has to verify the required documents with the medical officer who eventually has to examine the body of the transgender which is nothing but practically a screening committee. Secondly, a transgender person has to get an identity certificate produced from a District Magistrate by submitting the required documents which include Sex Reassignment Surgery certificate and other related documents. Such surgery and procurement of the certificate wherein it requires approval from multiple authorities clearly invades the privacy of a transgender person. Also, there is no mention of a redressal or recourse in the eventuality of a District Magistrate refusing to grant such certificate. Moreover, the Bill does deal with the civil rights of transgenders such as Marriage, adoption, property rights and few more thus depriving them of their fundamental rights. As per Section 18(d) of the Act, it is stated that whoever sexually abuses a transgender will face imprisonment for a term of six months or two years considering the scenario. However, on the contrary, a punishment of imprisonment for life or death is granted in cases of rape of a woman. Such disparity in punishing a rape convict of transwoman and cis-woman is clearly violative of Article 14, 15 and 21 of the Indian Constitution. Unfortunately, Indian laws lack provisions for safeguarding trans-community against sexual abuse and violence.
Judicial Activism in Granting Equal Protection for Transgenders
A petition was filed in the Hon’ble Supreme Court of India seeking equal protection of transgenders against sexual violence and for Anti-Discrimination Bill penalising discrimination and harassment on the basis of gender. This plea was also filed to seek gender-neutral laws for sexual harassment. This petition challenged the constitutional validity of Section 354A of IPC that is outraging the modesty of a woman as it does not include transgenders as victims of sexual harassment and therefore are violative of Article 14, 15 and 21 of the Indian Constitution. The petitioner in the said petition proposed adoption and implementation of the Universal Declaration of Human Rights to protect the fundamental rights of the third gender by giving them equal protection before the law.
The said petition is pending for disposal before the Supreme Court wherein notice was issued to the Union of India after the judges found a good case of the petitioner.
Comparative Analysis of Global Legislation on Transgender Rights
Like India, Brazil is also a developing country. In the year 2018, Supreme Court of Brazil held that there was no need for transgenders to undergo medical surgery or judicial review in order to get their names and gender marked on identification documents changed as per their will and thus giving transgenders equal rights and protections similar to all cisgenders. Pakistan also has a Transgender Persons (Protection of Rights) Act, 2018 wherein there is no requirement for transgenders to undergo any medical and diagnostic surgeries in order to obtain legal recognition or preferred gender identity like in India. Even in developed countries like Canada, transgenders are legally recognized wherein their gender identity and gender expression are included in the Canadian Human Rights Act and the Criminal Code of Canada. In Australia, The Sex Discrimination Act, 1984 prohibits discrimination on the basis of sex. LGBT rights in the Netherlands are one of the most progressive in the world. The Dutch Parliament implemented The Equal Treatment Act, 1994 which bans discrimination on the basis of sexual orientation in employment, housing and both public and private accommodations. A bill was passed by the Dutch Parliament which explicitly add sex characteristics, gender identity and gender expression to the list of anti-discrimination grounds. In 2013, the parliament of Netherlands approved a bill that would allow transgender people to legally change their gender on the birth certificate and other official documents without undergoing sterilization and sex reassignment surgery, same-sex marriage and same-sex adoption. The progressive approach of different countries towards uplifting the transgender community who have been denied equal protection of rights since a long time now is clearly reflected in the aforesaid legislations. India as a developing country should take into consideration the legal provisions of different countries corresponding to transgenders and make gender-neutral laws and give the transgender community the status that any cis-gender is given.
The Transgender Person Protection Bill 2019 is an impetuous work leaving behind many crucial aspects and concerns for the community. The Bill has left many questions unanswered, there are a plethora of lacunae in the bill which needs attention.
The upliftment of the transgender community in India is possible only when the viewpoint of the society towards a trans individual will change. The laws that are made should be in line with the judgement of National Legal Services Authority v. Union of India [(2014) 5 SCC 438] of Hon’ble Supreme Court pertaining to transgender rights. Even after enactment of laws by the government, there is a strong need to educate the common masses about the transgender community so that they develop a sense of respect towards them. Provisions for punishment for violators of the provisions of the bill and the ones discriminating against the transgenders should be incorporated and executed in a swift manner. A speedy mechanism for enforcement of rights including harassment and discrimination of transgender should be incorporated in the Bill. Provisions for addressing the medical issues and providing adequate medical facilities to transgender persons should be mentioned in the Bill.
The proposed National Council for Transgender Persons does not give adequate representation to the community and as the Central Government shall nominate the members and it shall have great control over it.
The need of the hour is to spread awareness about the hurdles transgender’s face and the pain they have suffered. It time to put an end to transphobia in the society and help the transgender community to win their battles and get the rights and protection they deserve.