January 2021 — Constitutional Renaissance

[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 5^th 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.

Conclusion

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.

[This is a guest post by Manasi Bhushan and Gauri Nar]

Introduction

The Constitution of the world’s largest democratic country, India, believes in gender equality and non-discrimination. ‘Equality’ and ‘Justice’ as mentioned in the Preamble are the pillars on which the Indian Constitution rests. Article 14 and 15 of the Constitution being fundamental in nature guarantees equality before the law, equal protection of law and non-discrimination. As per the Census of 2011, India had a total population of 1.21 billion people out of which transgender persons were 4.88 lakh in number i.e. 3.34% of the total population. India, with time, has adopted the western culture however even in the 21^st Century, in India gender incongruence is a taboo.

Transgender is an umbrella term that describes people whose gender identity or expression does not match the sex they acquired at birth. It is interesting to note that the existence of such persons is not emanated from recent history, rather the ancient Indian history and mythology recognized transgender persons. For instance, the androgynous composite of Shiva and Goddess Parvati is known as Ardhanarishvara which represents masculinity of Shiva blended with the femininity of Parvati. In Mahabharata, Shikhandi who was born with a female body but recognised herself as a man and later with the help of a Yaksha became a man. Sudyumna, a King was cursed by Shiva and Parvati to be gender fluid and transform from a man to a woman and was known as Ila. The term “transgender” refers to a person whose sex assigned at birth (i.e. the sex assigned by a physician at birth, usually based on external genitalia) does not match their gender identity (i.e. one’s psychological sense of their gender). Some people who are transgender will experience “gender dysphoria,” which refers to psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity. Though gender dysphoria often begins in childhood, some people may not experience it until after puberty or much later. Usually, transgenders face social stigma and are derecognized as persons because of which they are compelled to leave their homes for escaping restrictive families and seek support within their community. They often live in a ghetto-like existence in their own communities.

However, in the year 2014, Transgenders were socially recognized when the Hon’ble Supreme Court of India in the case titled as “National Legal Services Authority v. Union of India [(2014) 5 SCC 438]” gave transgenders an equal status by declaring them as “Third Gender” and granting them their constitutional rights.

Classification of Transgenders

Transgenders or eunuchs are generally addressed as ‘hijras’ or ‘chhakkas’ in India. They can be known by different names based upon different regions and communities, such as-

Other categories of transgenders are Transexuals, genderqueer/non-binary gender which also include individuals identifying as moving between male or female (bigender) and some individuals who identify as beyond gender or genderless (agender) or simultaneously exhibiting multiple genders (pangender). There are also Transvestite or cross-dresser, drag kings and drag queens.

History of Sexual Crimes against Transgender in India

For decades transgenders have been suffering horribly and facing health issues relating to sexual violence. These include rape, stalking, sexual harassment, outraging the modesty, voyeurism, violence (physical, emotional and sexual). Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2,811 incidents of violence i.e. an average of three incidents per person between April and October 2015. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In a research conducted in different parts of India by a health resource centre ‘Swasti’, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood. In most of the cases, the person to sexually violate a transgender is someone known to them, a client, partner or those for whom they are employed as sex workers. Majority of people in our society are transphobic, and therefore lack sympathy towards the community facing sexual violence on a large scale. The police and government officials are the ones imposing tremendous sexual violence on the transgender persons when they approach them for help. A transgender woman stated that the police chase away them (transgenders) whenever they see them, even if they are just sitting and having a chat, Police verbally abuse them and beat them. Another trans woman stated that the police takes rounds and arrests kinnara women for no fault of theirs, assault them and insert lathis into their bodies. Deepak Kumar, a social worker, told about one such incident, where 17 policemen allegedly had “forced sex” with a transgender woman at a police station.

In 2004, in Bangalore, a eunuch was at a public place dressed in female clothing who was gang-raped and forced to have oral and anal sex by a group of hooligans. He was later taken to a police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity. This was brought into light in the landmark judgment of Apex Court in the case titled as Naz Foundation vs. Govt. of NCT & Ors. [2010 CriLJ 94]. Hon’ble High Court of Madras even raised concern in the case titled as Jayalakshmi v. The State of Tamil Nadu [(2007) 4 MLJ 849], wherein a eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he was arrested being accused of theft. In this case, evidence was produced before the court indicating that in police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forced him to have oral sex. This person immolated himself inside the police station and later succumbed to burn injuries. A compensation of Rupees Five Lakh was awarded to the family of the victim.

In 2015, a fact-finding team of activists from the Telangana Intersex Transgender Hijra Samiti found that more than 10 cases of attacks against transgender persons each month were reported in the State, including the murder of Pravallika, a hijra who was brutally attacked. During the interrogation, another hijra was picked up by the police and was humiliated, stripped and detained for four hours while dismissing her plea to be released as she was also HIV positive. Another instance in 2017 occurred in Hyderabad wherein a transgender woman was raped and was attacked with acid. She was the sole breadwinner for her family. A study by the National Human Rights Commission, India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school.

This was the Part I of the two-part series on Sexual Crimes against Transgenders. Stay tuned for the next post by the authors which will highlight the legal provisions for the protection of transgenders and judicial approach towards them.

Month: January 2021

Guest Post: Roadblock in Protection of Transgenders in India