This article is Submitted By- Shweta Khandelwal,Amity University Lucknow.
Abstract: –
This research paper is a doctrinal and a comparative study on the nature of Transgender persons act, 2019. Which is somehow lacking behind in giving the desired rights that should be enjoyed by a trans and is also a bit controversial with our constitutional rights. After this law was updated in 2016 and fewer rights were granted, the Transgender Persons (Protection of Rights) Act, 2019 (hereafter referred to as “TPRA 2019”) was approved by both chambers of Congress. The TPRA of 2019 further toned down the 2016 measure. Because it has restricted many liberties that the community required to prosper, it does not excite the TGC. Significant obstacles have been put in the way of the community, which already faces harsh aspects of society. It runs counter to what the 2014 Bill aimed to accomplish. The community was against TPRA 2019 as a result. This paper will be dealing with the same issues.
Keywords: –
- Transgender persons act,2019,
- Constitution of India,
- Lavender Marriage,
- NALSA
Introduction
The Bill for Transgender persons act was introduced in the Lower House of the Parliament by the ministry of Social Justice andEmpowerment, Thawar Chand Gehlot the 13th Governor of Karnataka. An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.
For this the bill was passed in Transgender Persons (Protection of Rights) Bill, 2018 (Bill no. 210-C of 2016). According to the bill, a transperson is a person whose gender does not correspond to the gender assigned at birth. Transgender persons cannot be discriminated against in the workplace, in schools, in housing, in the healthcare system, or in any other setting. The measure permits individuals to define their own gender identities, but it requires that they be recognized as “transgender” on the basis of an identification certificate issued by a district magistrate. Transgender people can apply for a certificate of identification designating their gender as”transgender,” but they can only get a revised certificate if they have surgery to change their gender to either male or female. The act was approved by both the lower and upper houses of the Indian Parliament on August 5, 2019, and November 26, respectively.According to the Bill, a person who identifies as transgender is one who is (i) neither exclusively female nor exclusively male, (ii) a combination of both genders, or (iii) neither female nor male.
Historical Background
Our Vedas (1500 BC – 500 BC) gives us the evidence of existence of three categories of people in our society, which is basically, according to their nature or prakriti. The descent of transgender is also visible at the time of monarchial era, where these persons worked as officers for guarding women of royal families. The word originates from Greek language, which means “the keeper of the bed”. Ancient Hindu astrology, law, medicine, and languages all address the third sex. The biological theory is explained by Manu Smriti (200 BC – 200 AD). Beginnings of the three sexes:
“A male infant is generated by a man when more male sperm are generated, a female child by the bigger number of males gender predominance; if equal, a third-sex child is born but if either is feeble or a boy and a girl are born as twins a conception failure occurs when the quantity is lacking.
In the epic Ramayana also, when Lord Ram left his kingdom for exile of 14 years, upon the following of his followers, he asked them all the “men and women” to go back to the city but the third genders “Hijras” stayed there. After seeing this Lord Rama blessed them with the power to confer blessings on the people on auspicious occasions like marriage, childbirth etc.
If we see during the time of Mahabharata, Aravan, the son of Arjuna and Nagakanya, offered to be sacrificed to Goddess Kali to guarantee the Pandavas’ victory in the Battle of Kurukshetra. His only request was that he spend his final night married. No woman wanted to wed a man who was destined to die, but Krishna took the form of Mohini, a stunning woman, and wed him. The Hijras of Tamil Nadu refer to themselves as Aravanis and view Aravan as their progenitor.
Constitutional History
The Supreme Court of India ruled in August 2022 that same-sex couples can obtain rights and benefits as a live-in relationship (similar to cohabitation), even though India does not recognize registered marriage or civil unions for same-sex couples. In 2014 in the case National Legal Services Authority vs. Union of India there was a judgment for protecting the rights of transgender and recognizing them as third gender.
The judges mandated the creation of an expert committee after the NALSA case, but the committee had already been created and was investigating the issues the TGC was encountering in every state of India. The committee was given three months to submit the document addressing the TGC’s concerns. The committee has also created a report on the same topic in 2013. The Rights of Transgender Persons Bill, 2014 (hereafter “bill 2014”) was created as a result, and it wasn’t until April 24, 2015, that it was approved by the Rajya Sabha, the upper chamber of the Indian Parliament.
The bill was never discussed in the Lok Sabha. The requirements and representation of the TGC were considered when drafting the 2014 legislation. It is a known truth that this bill created joy within the community because it was so precisely crafted in accordance with their wishes and laid out all the rights and wants of the community. But there still have been some criticism about the rights entertained by the Trans.
Research Questions
- Whether the articles of the Constitution correspond with the rights of Transgenders?
- Whether Marriage rights be given to Transgenders or not?
- Whether the constitution provides them with adoption rights or not?
Literature Review
Some of the articles present in our constitution do favour theTransgender as per the recent Transgenders persons Act 2019, few do not favour them whereas few are ambiguous in nature.
Here are some key features of the Act: –
- Non- Discriminatory
The law is in the strict prohibits of discrimination against transgender persons at educational or professional institutions, healthcare and other public facilities as well as reinforces their right of movement, property and holding of offices.
- Certificate
The trans are required to register themselves as a Third person to the District Magistrate. There will be medical checkup and furthermore if the person that person wants to change their gender into male or female, the district magistrate is asked to perform so.
- Complaint Officer
The law requires every establishment to create a specific designation of a complaint officer.
- Medical Aid
The law also calls for the creation of special HIV surveillance facilities for transgender people. These facilities must provide care for hormone therapies, sex reassignment surgeries, and other related procedures, and they must be funded by an insurance plan tailored to the needs of transgender people.
- National Council for Transgender Person (NCT)
In accordance with the law, the NCT must be established in order to direct and advise government authorities on matters such as the auditing of current policies, the formulation of new ones, and the redress of grievances.
- Offences
Now covered by the legislation and punishable by law are offenses including coercing transgender people into labor, denying them access to public facilities, abusing them mentally, emotionally, physically, or sexually, and other related offenses.
The Transgender Persons Act is likely to remain unsatisfactory because it fails to provide a skeleton on a variety of other associated rights, such as marriage rights, adoption rights, pregnancy rights, and so forth – a missed opportunity to be even more comprehensive.
1) The Marriages in India are mainly governed under Hindu Marriage Act, 1955 and Muslim Marriage Act, 1939 For example: –
The Hindu marriage Act 1955, which governs marriage in India, only recognizes marriages between a man and a woman and does not recognize the existence of a third gender. However, in 2019, the Transgender person Protection of rights) Act was passed, which recognizes the right to the self-perceived gender identity of individuals and allow trans citizens to register themselves under the third gender category. In 2019, the madras high court in Tamil Nadu upheld the right of a trans women and a man to register their marriage under the Hindu marriage act 1955. This was the first judgment in India where the right to marry under article 21 of the constitution has been affirmed for transgender person and holding that ‘bride’ under the Hindu marriage act would cover transgender person who identify as a woman.
However, there are still no specific laws governing transgender marriages in India. The special marriage act, 1954 has currently been drafted in a way to allow the marriage of only heterosexuals under it. If not so, the transgender person (Protection of rights) Act can be used for registration of marriages by transgender person.
2) In India, there is no law that explicitly allows or prohibits transgender individuals from adopting children. The Hindu Adoption and Maintenance Act, 1956, which governs adoption in Indi, only mentions the terms “man” and “woman” and does not recognize the existence of a third gender. Therefore, it is unclear whether transgender individuals can adopt children in India.
However, there have been debates on whether transgender individuals should have adoption right or not. Transgender individuals face many problems in their daily life. It is important to note that having a family is not even an option for many transgender individuals in India.
Analyzing it with Constitution of India
The Constitution of India provides transgender individuals with various rights, including the right to equality and non- discrimination. However, there are some articles in the Constitution that contradict with the rights of transgender individuals.
Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the law. However, transgender individuals face discrimination in various aspects of
their lives including education, employment, justice, media and entertainment, politics, business opportunities, religion and medical care.
Article 15 of the Indian Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. However, there are no specific provisions for transgender individual in this article.
Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression to all citizens. However, transgender individuals face physical and emotional violence and abuse, including sexual assault.
Critical Review of Transgender Persons Act, 2019
The right of a transgender person to adopt their self-perceived gender is discussed in Section 4 (2). In a perfect world, this would imply that the transgender person has been granted complete
autonomy in choosing their own gender as opposed to what society has traditionally expected them to be. However, when we continue to read Section 5 (1), it becomes clear that a transgender person must visit the District Magistrate in order to obtain a certificate confirming their identification. However, the transgender person must first undergo a medical examination, which is carried out by medical professionals and psychologists to check the transgender person and then provide verification of their self-perceived identity.
Only then is this certificate issued. The TGC’s sovereignty in choosing their own gender identification has been removed, which is a violation of Section 4(2) itself. To confirm their membership in the TGC to the government, people must undergo a medical test rather than relying just on the TGC knowing about their identification. This medical exam is designed to demonstrate that a person who claims to be transgender is indeed a “male or female,” rather than to determine whether they belong to the TGC. It is being utilized to deny individuals of their rights rather than to grant them in any way. That is the committee’s unfavorable effect.
Even more unexpectedly, Section 18, discussion of sanctions only lists other probable violations of TGC rights at various institutions, leaving out any actions taken by the State that are contrary to the provisions listed in this act and subject to punishment. It fails to provide the state with the legal protection and responsibility to uphold the legislation.
Lavender Marriage: – In these types of marriages, a Trans is married to a man or woman because they are forced by their family or are afraid to open up to the society. They tend to have extra marital affairs due to these reasons. It not only affects that person’s life but even affects their future. Thus, there should be some provisions regarding such types of marriages so that the lives of the people cannot be destroyed.
Results of the Survey
A survey was conducted on how people see Transgender persons in our society and on Transgender persons act,2019. It was a sample survey done among almost 75 people.
https://forms.gle/HMJkNksfzYoJJh7o6).
The last question was an opinion-based question about Lavender marriages. So, there was a variety of answers received. Some people believe that Transgender people should not exist in the world whereas most of them said till the time it’s happening with their consent there should not be any type of tension in the society. The survey proved to be wholesome as it included both criticism and love and affection for the Transgender persons.
Conclusion
The land whose history is about equality and justice, where these values are core of our constitution, which help in the good governance of our society, then why these rights are not properly given to some section of people of our society. We don’t need to make it a worldwide issue because, they are also like us, “a living being” so who are we to allow them or constrain their rights or question them regarding how they want to live their lives. They should be given all the rights that we as humans should have in our society whether it concerns marital rights, adoption rights, property rights and so on. Try keeping yourselves in this place and looking at how society is treating you, will you be able to accept it then? Till the time we think they are different from us we will never be able to bring a change in our society or would be able to call ourselves developed. A society where acceptance and tolerance, rather than exclusion and intolerance, are the norm and where everyone, regardless of person, values their rights and has an effective and efficacious remedy to enforce those rights through a laid-out uniform mechanism must be encouraged.
References: –
ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf https://www.ibanet.org/article/0F3AE21B-0170-4BF7-95DD-45B07EF1CAF6 https://en.wikipedia.org/wiki/LGBT_rights_in_India http://egazette.nic.in/WriteReadData/2019/214518.pdf https://law.indiana.libguides.com/c.php?g=1071346&p=7800170 https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_India https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2016
https://quillbot.com/ https://blog.ipleaders.in/transgender-persons-protection-rights-act-2019-impact-third-gender Allinson BLRP No. 6 2020 – Merged.pdf
