Rights of Transgender Persons Bill 2014, NALSA & Nangai decisions

Siddharth NarrainAug 2015

Ministry of Social Justice and Empowerment Committee 2013-14

• Transgender persons should have the right to decide their gender expression and identity, enacting comprehensive civil rights legislation for transgender persons

• Amending the constitution to include gender identity and sexual orientation as a ground for non-discrimination

• Enacting a special legislation to deal with transgender exclusion on the lines of legislation outlawing untouchability

NALSA v Union of India

• Judges- • Decided in April 2014, Intervenors: Poojaya Mata

Nasib Kaur Ji Women’s Welfare Society & Laxmi Narayan Tripathi

• NALSA JUDGEMENT 2014: Transgender - an umbrella category that includes those who identify as male to female, female to male, intersexed, and transsexual persons as well as those who identify as hijras, kothis, kinnars, aravanis/thirunangis, jogappas/jogta, shivshakthis and eunuchs (a term that is outdated).

• The term transgender includes ‘pre-operative, post-operative and non-operative’ transsexuals who strongly identify with persons of the opposite sex.

• Moves away from a biological evaluation of gender for purposes of the law.

• Hijras to be treated as a “third gender” to safeguard their fundamental rights.

• Transgender persons have the right to decide their self identified gender.

Yogyakarta Principles 2007• Sexual orientation is understood to refer to each person’s

capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.

• Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

EQUALITY/NON-DISCRIMINATION• Art 15. Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth • (1) The State shall not discriminate against any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them • (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth

or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and palaces of public entertainment; or

• (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

• (3) Nothing in this article shall prevent the State from making any special provision for women and children

• (4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Art 16• Art 16(2) : Equality of Opportunity in Matters of

Public employment: There shall be equal opportunity for all citizens in matters relating to employment or appointment to any office under the State

• No citizen, shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or nay of them, be ineligible for, or discriminated against in respect of, any employment or office under the State

Equality and Non Discrimination• The term ‘sex’ in the non-discrimination clauses of

Articles 15 and 16 to include ‘gender identity’• States that the intent behind the framing of the term

‘sex’ in these sections was to prevent the direct or indirect attitude to treat people differently, for not being in conformity with stereotypical generalizations of binary genders.

• The court’s ruling prohibits discrimination against transgender persons in public spaces like hotels, public restaurants, roads, shops and places of public entertainment.

Reservations

• Courts rely on Arts 15 and 16 to hold that :• Legally entitled and eligible to get the benefits of 'Socially

and Educationally Backward Class’• State is bound to take some affirmative action for their

advancement • TGs are also entitled to enjoy economic, social, cultural and

political rights without discrimination • Entitled to reservation in the matter of appointment, as

envisaged under Article 16(4) of the Constitution. • State is bound to take affirmative action to give them due

representation in public services.

Freedom of Expression

• The right to freedom of speech and expression to include the right to expression of one’s self identified gender

• Self-identified gender can be expressed through dress, words, action or behavior or any other form.

• No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. (which include ‘public order, decency and morality)

• Values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a)

The Right to Life• Art 21 includes the right to live with dignity and

the right to autonomy• The right to life includes the right to live with

dignity and the right to human development. Article 21

• Article 21, the court says, not only provides a negative right, but also places a positive obligation on the state to ensure that the transgender community is able to live a life with dignity.

Binary Genders & the Law

• Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.

• Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, (man=male; women=female) and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NREGA, 2005, etc.

• Non- recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.

Gender Identification

• Gender identification becomes very essential component which is required for enjoying civil rights by this community.

• It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health

SC Directions: The Nine Fold Path• (1) Hijras, Eunuchs, apart from binary gender, be treated as “third

gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

• (2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

• (3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

• (4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.

• (5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

• (6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

• (7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

• (8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

• (9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

Law, Family and Gender• THE JUDGMENT SQUARELY RECOGNIZES THE FAMILY AS A SITE

OF VIOLENCE AND DISCRIMINATION, SO THE REALM OF DISCUSSION GOES BEYOND THE STATE

Nangai Judgment (Madras HC)

• Petitioner born and brought up as female• Recruited as a Grade II police constable• In a routine medical check up, medical officer

marks her as “transgender”, sends her to be examined by an endocronoligist

• Diagnosed with ‘male pseudohermaphrodism’• Classified medically as ‘transgender by birth’• Action taken against her for failing to disclose

she was transgender

Madras HC (Nangai) Case• There is no definition of the term ‘male’ or ‘female’ in Indian law • There is no law in this country prescribing the mode to determine sex. • If the chromosomal test is held valid in this particular case, then

society should be using this test for all people in each every of these transactions.

• Female born persons who are held medically to be male have the choice to choose the gender of their choice- if she wants to be recognized as female then the government cannot force her to be declared transgender.

• Compelling an individual to undergo a medical examination is a violation of the right to privacy. (especially in the absence of legislation granting rights to transgenders). Court held that the petitioner was female and was eligible to be appointed a woman constable.

• NALSA did not declare MTFs to be ‘third gender’

• POTENTIAL TO RETHINK GENDER STEREOTYPES and the QUESTION OF BIOLOGICAL DETERMINISM - WHO IS A WOMAN, WHO IS A MAN?

Present Government Stand

• Re-emphasises the distinction between “LGB” and “T”

• Questions the logic of putting Transgenders as a whole in OBC category

• Asks for the National Commission of Backward Classes to look into this matter as they are mandated to do so, not the courts

• Jat Rajasthan Reservation case- SC observations

Rights of Transgender Persons Bill 2014 (passed in Rajya Sabha)

• Government shall ensure steps for reasonable accommodation (i.e. all steps to ensure that trans persons enjoy the same benefits as others but no undue hardship to government )

• ‘Discrimination’ defined widely – any distinction/exclusion/restriction which impairs the recognition on equal basis of all human rights and fundamental freedoms and includes denial of reasonable accommodation

• ‘transgender person' means a person, whose sense of gender does not match with the gender assigned to that person at birth and includes trans-men and trans- women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as —kinnars, hijras, aravanis, jogtas etc.

EMPLOYMENT

• (1) No establishment shall discriminate against any transgender person in any matter relating to employment including but not limited to recruitment, promotion and other related issues.

• (2) Any transgender person, if eligible for any post which is be filled, shall have the right to appear for selection and hold the post if selected.

• Setting up Employment Exchange mechanism• Mechanisms for provision of loans at concessional rates to

transgender persons for self-employment ventures, and for marketing of their products.

• Two percent seats for direct government recruitment• Incentives to private sector to ensure that 2 % of recruitments are

transgender within 5 years of law passing

HEALTH & EDUCATION

• Separate HIV/ Sero Surveillance centres• Free SRS • Barrier free access to health care

• Two percent seats reserved in primary, secondary, higher education

• Government institutions to admit and provide trans persons equal facilities

PERSONAL LIBERTY

• No person can be deprived of the right to liberty purely on grounds of being transgender

• Protection from torture, cruel, inhuman degrading treatment or punishment

• Executive Magistrate can take steps to intervene, provide shelter and provide maintenance

• All appropriate measures to prevent abuse, violence and exploitation against transgender persons

INSTITUTIONAL MECHANISMS

• COMMISSIONS: National and State Commissions with representatives from trans community

• Powers include: identifying procedures, policies ; coordinating government action; taking up complaints, intervening in courts, identifying laws inconsistent with this act, and recommending action, studying treaties, monitoring utilization of funds

• COURTS- for disposing off civil suits • EXECUTIVE MAGISTRATE

FOCUS ON TRANSGENDER CHILDREN• Trans children enjoy human rights at par with other children• Facilities for persons including transgender children who have

no families or have been abandoned, or are without shelter or livelihood

• No child who is a transgender shall be separated from his or her parents on grounds of being a transgender except on an order of competent Court, if required in the best interest of the child.

• Where the immediate family is unable to care for a transgender child, the competent Court shall make every effort to place such child within his or her extended family, or within the community in a family setting. ‘Family’ means a group of people related by blood, marriage or adoption to a transgender person.

Section 36A Karnataka Police Act, 2009

• Use of the term napumsaka/eunuch• Preparation and maintenance of a register of the

names and places of residence of all eunuchs residing in area who are “reasonably suspected” of

• (a) Kidnapping or emasculating boys• (b) Committing unnatural offences• (c) Or any other offences

Justice Verma Committee 2013

• Transgender communities are entitled to an affirmation of gender autonomy

• Our cultural prejudices must yield to constitutional principles of equality, empathy and respect.

• Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same.

• Recommended that the survivor/victim under section 376, Indian Penal Code be ‘person’ instead of ‘woman’

• Criminal Law Amendment Bill does not follow this suggestion, debate around terminology in law

Use of IPC Provisions

• 268: Public Nuisance• 294: Obscenity• 319: Hurt• 320: Grievous Hurt• 359: Kidnapping• 377: Unnatural Sex

• 1861: Section 377 IPC: 377. Unnatural offences.—Whoever voluntarily has carnal inter course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

• Interpreted over the years to criminalize all non peno-vaginal sex