Introduction

Understanding what it is like to be transgender can be very challenging if one has not lived through the experience; however, understanding and accepting the very concept of trans people is far from difficult. As the term states, transgender people are those who do not identify or align with the gender they were assigned at birth. When people are born, especially in places where birth certificates are issued at birth, they are categorised as either male or female or if the hospital is progressive enough, intersex. Intersex people are those that have a discrepancy between their external and internal genitals; they fall under neither category of male nor female technically, but more often than not they are forced into one of these by way of surgery at a young age as well as social conditioning. 

However, some people find early on that they do not feel comfortable in their own bodies, with the gender they are forced to conform to, or with the names and pronouns that are imposed upon them. At this point, it is essential to note that while the terms sex and gender are interchangeably used, they do not, in fact, not have the same meaning. Sex refers to the biological aspect of a person – whereas gender is a social construct built based on sex. They might feel like they are either the “opposite” gender or gender-queer, meaning they do not fit in with the binary of man and woman.  Under the umbrella of trans identity, there are various other labels that exist; people could be non-binary, bigender, agender, demi gender, and more, according to their comfort and liking. Little to none of these identities are accepted or recognised by legislation or society – an unfortunate circumstance, considering the toll it takes on people from these communities. The only identity that is accepted to an extent is transgender people – however, the stereotypes and hate surrounding them lead to questions of whether they are indeed welcomed by society. In addition, the already minimal acceptance is only extended to trans women; trans men are almost entirely neglected.

Trans women, more commonly referred to as “Hijras”, historically meaning eunuch, are people assigned the male label at birth, but who identify as and are actually women. There are estimated to be around five lakh Hijras in India today – however, these statistics do not cover even minimally those persons who do not have the opportunities, freedom, or knowledge to express themselves, and those actively being oppressed and silenced for their identities. 

Issues and Discriminations: what is plaguing trans people?

People who do not conform to gender identities and gender norms are automatically discriminated against, not only by society but also the structure of the institutions present as well – as they are strictly designed to work with the gender binary of men and women. This means that not only are trans and genderqueer not allowed to express their true selves, but also if they dare to do so, they are faced with immediate backlash and threats for their life. Some of the issues trans people face include:

1. Discrimination in the education and occupation institutions – of the vast amount of trans people, less than half are educated and literate. 
2. Social Ostracization and Homelessness.
3. Psychological and mental duress, and transphobia.
4. Lack of Legal protection – even though trans people are minorities and are victims of high amounts of hate crimes, they are very rarely provided with legal remedies or protection. Worse, they are further victimised by the enforcers of the law, such as the police. 
5. Corrective rape and therapy.

The impacts of these issues are vast and severe – debilitating mental illnesses, self-harm, suicide, forced heteronormative roles and marriages, unemployment, dropping out of school and education, and much more. The first step that was taken by the judiciary with regard to solving this is in the case of National Legal Services Authority vs Union Of India, where the Supreme Court held that Hijras were to be considered as a third gender. The next step, a long-waited one, was the passing of the Transgender Persons (Protection) Act, in 2019. 

Key Provisions

The Act is comprised of 23 sections – these key provisions and features attempt to protect and uplift transgender people.

Definitions (section 2)– the act provides for various definitions of important words and phrases in the act, including that for “appropriate government”, establishment, institution, family, inclusive education, persons with intersex variations, national council, and transgender persons. The act defines transgender persons in a manner that can be considered inclusive and expansive – it states that they are people whose genders do not match the sex they had been assigned at birth, regardless of whether they have had corrective surgery or not; it also includes the concept of intersex and genderqueer people.

Prohibition against discrimination (section 3) – This section strictly mandates the aspect of non-discrimination of trans people, as well as active inclusion in educational, occupational, healthcare, and public institutions; their rights to life, liberty, freedom, and holding office must be recognised and enforced. 

Identity (sections 4-7): recognition, application, and certificate – certificates are to be issued to trans-gender persons, on the basis of self-perception and remove the necessity to undergo a medical evaluation to be recognised as transgender. The act also provides for the changing of outward sex characteristics for trans people. 

Obligations (sections 8-10, 13)– various entities, including the government, educational institutions as well as other establishments are required to cater to the needs of trans people, to ensure their safety and equality.

Grievance and Complaint Redressal (section 11) – all establishments must set up forums for the redressal of issues that are in violation of the Act.

Right to residence (section 12) – this crucial section provides for the right of transgender people to live in their parent’s homes in peace, and to be treated in a non-discriminatory manner. If the parents are unable or unwilling to care for their child, then the person is to be placed in a rehabilitation centre at the discretion of the government.

Inclusivity and reformation (sections 14-15) – the act mandates that policies and policy-making should be inclusive of trans people; the appropriate government should work towards providing for vocational-training and self-employment opportunities for transgender people. Healthcare institutions should ensure to not discriminate against the community as well as provide them with necessary aid. 

National Council for Transgender Persons (Section 16-17) – a council under the Central Government that is established for the welfare of transgender people; the act instructs the members and duties of the council, especially suggested improvements and solutions. 

Offences and remedies (section 18) – the act sets down the offences that can be carried out against transgender people, including forced or bonded labour, forced removal from their/their parents’ homes, denies any fundamental rights due to discrimination, or does anything to harm transgender people in any manner, be it physical, emotional, financial or otherwise. The penalties for these issues are also mentioned.

Power of government (sections 19-23) – these sections outline the power of the government with regard to protecting transgender people.  

Implications

The very aim of the act itself is to ensure positive implications or effects for transgender people, which in turn, would automatically mean good for all people. Ideally, the implementation of the Act would mean the recognition of all transgender, genderqueer, and intersex people, and their inclusion and involvement in all aspects of society. When it comes to individuals, it can be said that there are absolutely no negative impacts that are inflicted – in fact, this allows for other persons to explore themselves without the discriminations and constrictions of society. Businesses and entities that implement these policies and are inclusive towards trans people are likely to improve their brand image, internationally, if not in the domestic environment. 

However, leaving out the aspect of conservative beliefs and ideologies, there are various struggles that establishments may face with regard to being mandated to be inclusive; this includes increased turnover rates, potential loss of customers, and other issues. While this is certainly not much compared to the ostracization faced by the transgender community, it does mean establishments must take extra steps to ensure inclusivity; this goes for governments as well. 

Criticisms: Subsequent Amendments 

The current version of the Act has been through intensive changes; the bill that was initially introduced in 2018 by the parliament received severe backlash and criticism for its crippling inadequacies and crudity. The provisions were protested against, with transgender people arguing its violation of the judgement passed in the landmark case of NALSA vs UOI, as well as terming them regressive. Of the provisions that were vehemently disagreed with was the section that criminalised begging – people rarely choose to beg to survive – they are driven to it; criminalising begging would not strip people of their source of income, but also label them as criminals, pushing them further down the spiral of unemployment.

In addition, the act previously stated that transgender people could only be provided recognition and certification upon examination by the appropriate district magistrate – protestors argued that this was an unsavoury fetishization of trans people’s bodies. They stated that physical appearance did not determine whether a person was trans – and the magistrate deciding a person was not “trans enough” would not automatically make them cisgender. Being transgender is not limited or defined by a person’s physical characteristics or surgeries. 

The act also provides that transgender people and children be moved to rehabilitative homes if their homes are not conducive environments for them – while the provision may seem to be for the benefit of transgender people, it also perpetuates the idea that transgender people need to be rehabilitated. An amendment that should be made is the terminology that is used in the legislation, with special regard to the aforementioned one. 

In yet another discriminatory move, the penalty that the legislation provides (even now) for persons who sexually abuse transgender people is very minimal, as mentioned in section 18 of the act – it is set to a minimum of six months and a maximum of two years and a fine. This is considerably lesser than the penalty that is imposed upon persons that sexually abuse cisgender women – this not only places transgender people on a lower pedestal than others, but also creates a rift between the two communities. Unfortunately, this section is still a part of the act – it must be amended immediately to be equivalent to the punishments provided for regular sex offenders. 

Other amendments that need to be made include removing the vague nature of the sections and the act; while the concept of the sections is commendable, the content of said provisions is not. They are very broad and vague, and merely call for inclusivity for transgender people – this can very easily be taken advantage of by making bare minimum efforts. Specificity is necessary to bring about tangible changes and inclusivity – the legislation should mention specific and particular acts that establishments must carry out.  

Judicial Interpretation

While there are currently only cases that deal with the sections of the act itself, it is hoped that there will be others that revolve around any violations of the act. This would mean that not only are people aware of the existence of the act and its provisions, but are also willing and able to take legal action and seek remedies against those who infringed upon their rights. 

Conclusion

It is essential that with the rapidly developing and changing world, and the increased importance that is given to human rights and the LGBTQ+ community, India needs to keep itself and its legislations updated to ensure the safety and upliftment of its citizens. The first step towards this goal is unblemished and unconditional acceptance to be provided for all persons. While the Transgender Persons (Protection) Act, 2019 was established for this very same reason, there are various aspects that not only passively but also actively cause the community harm. The goal in mind of eradicating transphobia and providing all transgender people with the opportunities and aid they need will only be achieved if the voices of transgender people themselves are heard and their suggestions implemented.