Make legal frameworks inclusive

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Make legal frameworks inclusive

Friday, 27 December 2019 | Akshat Agarwal

The Transgender Rights Act indicates the many pitfalls in enacting legal frameworks without fully accounting for the realities and views of those they seek to protect

Despite nation-wide protests, the Transgender Persons (Protection of Rights) Act, 2019, received presidential assent on December 5, 2019 and became a law. Ostensibly enacted to protect the rights of the transgender community, the Act seeks to dilute core promises, including the right to self identification, which was the cornerstone of the Supreme Court’s landmark judgment in NALSA vs Union of India. There appears to be a unique situation, where a supposedly progressive law meant to further rights and ensure welfare of the transgender community has not only led to disappointment but will also alter their existing rights.

LGBT+ rights have made significant strides over the past decade, with the Supreme Court recognising transgender rights and decriminalising same-sex relationships. The decisions in both NALSA vs Union of India and Navtej Singh Johar & Ors vs Union of India marked the culmination of advocacy initiatives and years of struggle that the LGBT+ community had to undergo to successfully build their cases. The top court’s judgments not only expanded rights but were also cognizant of the realities of LGBT+ persons in India. Read together, both judgments lay the foundation for expanding the citizenship rights of LGBT+ persons.

Law reforms post these orders have not followed up on the court’s orders in responding to the lived realities of the community. Therefore, while the Transgender Persons (Protection of Rights) Act, 2019, should have been a step in the direction of progressive law reform, in its current form, it points to a glaring disconnect between lawmakers and the ground realities faced  by the transgender community.

For instance, the Act prescribes a long and complicated process to obtain a certificate of identity. This certificate is of immense importance as it confers rights and serves as a proof of recognition of identity as a transgender person. While details of how such certificates will be issued have been left to the delegated legislation, the possibility of introducing invasive procedures to prove one’s identity may have a detrimental effect on the right to self identification, which has been recognised by the top court and High Courts.

It is unclear whether applying for such a certificate of identity is mandatory. For instance, will those transgender persons, who already possess identity documents identifying themselves as such, also have to apply? The Act also does not envisage any streamlined appellate procedures in case the certificate of identity is not issued.  This may lead to costly and time-consuming litigation in case of denial.

Members of the transgender community have also pointed out how provisions on the right to residence with immediate families or in the alternative, requiring them to reside in rehabilitation centres, are ignorant of social realities. This because natal families are often sites of violence for young transgender persons, thereby forcing them to leave home and reside with the community members. Further, rehabilitation centres may not be an ideal alternative because often, such establishments do not possess the requisite degree of sensitivity to deal with the issues of transgender persons.

In the case of adults, such a provision ignores the fact that transgender persons above the age of 18 are competent to make their decisions. Further, community members have rued that while the Act provides for punishment for sexual abuse, the same is much lesser when compared to punishment for similar offences in the male-female binary in the Indian Penal Code. This creates a hierarchy of condemnation between offences against different identities that are otherwise similar in substance.

The structure of the legislation also renders it difficult to implement and does not provide realistic ways to enforce the rights guaranteed by it. For instance, the pan-India National Council for Transgender Persons is a mammoth body, which is unlikely to meet with any degree of regularity to address issues faced by transgender persons. Further, it only includes five representatives from the community.  This is too small a number when compared to the size of the council. The Act also fails to provide cogent methods for grievance redressal. Therefore, while one of the functions of the council is to redress grievances of the transgender persons, it is unlikely to redress individual grievances with any degree of reasonable efficiency given its complex composition. While the Act requires establishments to appoint a complaint officer to redress grievances for violation of the provisions, no powers have been conferred on the complaint officer. No details have been provided regarding how such an officer would redress complaints.

The definitions of the Act also indicate a lack of conceptual clarity regarding the realities of the transgender community. The definition of “transgender persons” includes “persons with intersex variations”, thereby conflating the two identities. Moreover, the definition of “family” by restricting itself to relationships of “blood or marriage or adoption”, continues to operate in a heteronormative context, thereby ignoring the many ways in which transgender families have been traditionally structured in India.

Deficiencies of the Act, therefore, make what would have otherwise been a welcome legislation, counterproductive, unresponsive and incapable of meeting the needs of the community. The Act, thus, fails to maintain focus on the concerns of the community and points to the lack of public consultations in its drafting process. Considering the progressiveness of the apex court judgments, law reforms seem like the obvious next step in realising equal citizenship rights. However, the Transgender Rights Act indicates the many pitfalls in enacting legal frameworks without fully accounting for the realities and views of those they seek to protect.  Any way forward for law reform, therefore, must keep the LGBT+ community front and centre and should proceed on the basis of extensive community consultations. After all, rights are only meaningful if in their operation, they respond to the realities of the right-holders.

(The writer is a Research Fellow at the Vidhi Centre for Legal Policy)

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