Amidst the unforeseen, exaggerated pandemic of COVID-19, the Indian GDP hitting a new low in 40 years, Amazonian forests burning, glaciers melting, the environment in ruins, Lebanon in anarchy, it's almost appalling how people still, (at a point where we are faced with crises we need to address as the world as one family), have to fight for the proper representation, recognition, and exercise of rights as necessary as human and civil. Starting from the Black Lives Matter movement in the USA, to the thousands of reported cases of Female Homicide in Turkey, to the unending atrocities against the marginalized, the backward, and the trans community.

Despite the momentary celebration that was brought about with the Navtej Singh Johar vs. Union of India judgement, which not only decriminalized consensual sexual conduct between two adults of the same sex but also further interpreted through the same spectrum, the rights of individuals to express their sexual orientation openly which was protected under Article 21 of the Indian Constitution, under the umbrella of Right to Privacy, the virtue of the judgment resulted in being merely fleeting.

Soon after, the Transgender Persons' (Protection of Rights) Bill, 2019, was passed by the Rajya Sabha without much deliberation or debate. Upon the opposition's urge to send it for further scrutiny before passing off, what amounted to be a much controversial, criticized act, the proposal lost to one too many votes against it, and the Bill became an Act. This Act has been subject to heavy criticism by the transgender spectrum and other social activists and awakened citizens of our country. It was unable to capture the true essence of what being "trans" actually connotes, the practical implications of the same, and seemed like a very meager attempt by the legislature to give recognition to this community, defying the very objective of the Act.

It prohibits discrimination against transgender people in places ranging from educational institutions, government establishments, commercial transactions, healthcare, and public services. However, the Act fails to define what would constitute discrimination against the transgender community and entails no penal punishment. On the other hand, the Act talks about the recognition of 'self-perceived identities' of the transgender community. It lays down the procedure for securing such identity certificate by an application to the District Magistrate of the respective court of jurisdiction, but ironically, only identifies the trans community as "transgender" in these certificates and not the identity of their choice.

A transgender person can identify as one of the binary genders only in instances when they undergo a sex reassignment surgery; they're reinforcing the blurring of the lines between "sex" and "gender" and the pronoun implications of "he" "she," and "they," which is something inherently against principles of gender identification. Furthermore, the certificate issued at the end of a sex reassignment surgery is again subject to the Medical Superintendent or Chief Medical Officer's analysis and discretion, and a binary gender certificate is only issued if the former satiates the officials. Again, this is representative of the hypocritical acts and intentions of the legislature, where the literal and interpretative meaning of the provisions are contradictory to the objective of the Act and its claims.

Another one of the alarmingly unacceptable provisions finding pertinence in this Act is the punishment entailed for the physical or sexual abuse to a transgender individual, which ranges from six months to two years. This provision under Section 18 has not been extensively explained and denotes abuse as forced Act of bonded labour, obstruction of passage, ambush out of the house, village, or place of residence, and mentions something as crucial as "sexual abuse" without any further explanation of what such Act may constitute in context of the Transgender Community.

Secondly, the Act entails a punishment of six months to two years for all such acts stated above, bringing in offences like ambush and refusal of the right to use a common passage, emotional and economical, and verbal abuse on the same pedestal as sexual abuse. It is also important to note in this instance, that sexual offences ranging from rape, under Section 376- 376D( imprisonment ranging from seven years which may be extended to ten years and twenty in case of Gang Rape); Eve Teasing Section 509 (imprisonment of a term which may be extended to three years), sexual harassment Section 354A( imprisonment which may be extended to one year to three years), outraging the modesty of women Section 354 (imprisonment of one year which may be extended to five years), etc., entail a much greater, heavier and more comprehensive set of punishments for a range of acts, which the Transgender Persons' Act effectively lacks and it is to be put to question that if all human beings have the right to express their sexual orientation and get recognition, and in theory are considered equals, why are different gender identities subject to different levels of protection in this country?

Not only in terms of something as pivotal as sexual offences regulating the transgender spectrum, but also civil rights, to marry, to adopt, to have a chance at effective habilitation in society, as equals. To this day, despite the Supreme Court's verdict on the expression of every individual's sexual orientation being a fundamental right, the trans community has still not been granted enough protection of their interests in terms of rights. This renders their fundamental right and liberty to identify as who they want to, obsolete as the same is of no use until it can be exerted in the society just as much as a cis-gender individual would do.

In conclusion, even though India has progressed from its perception of non-recognition of the trans community in its entirety to a position that offers sexual orientation as a fundamental right, there exists substantial confusion and lack of education in these lines in the country to this day. The on-paper "rights" offered for the protection of this community is ceremonial at best, and cannot be sufficiently applied in practicality for this community to be protected as much as any cis-gender individual. The principle of equality remains sacrosanct in the Indian Constitution till date; however, in essence, it is barely upheld in respect of the rights offered to this community, the treatment that is meted out in everyday life, and minimalistically even in terms of the humanistic identity of the community over their sexuality in general.


Ranjini Ghosh

Symbiosis Law School, NOIDA

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