Articles

The Current Status of Transgender Rights in India

Introduction

The aim of this paper is to provide an overview of the current situation of the transgender community’s rights in India, with a specific focus on the Transgender Persons Bill proposed in 2016 and amended in 2018. After analyzing the critical points of the Bill, Global Human Rights Defence (GHRD) will deliver some recommendations to India concerning some measures that the State should take, in order to comply with its international human rights obligations.

International standards on LGBT rights

At the international level there is no binding legal framework explicitly making reference to the principle of non-discrimination on the basis of sexual orientation, gender identity or sex characteristics. However, States’ obligations to protect LGBT rights is clear under human rights international law. Specifically, two fundamental principles enshrined in the Universal Declaration of Human Rights: equality[1] and non-discrimination.[2]Moreover, United Nations human rights treaty bodies have repeatedly confirmed that sexual orientation and gender identity are included among prohibited grounds of discrimination under international human rights law.[3]

Another relevant human rights instrument concerning LGBT rights are the Yogyakarta Principles[4] (published in November 2006 as the outcome of an international meeting of human rights groups in YogyakartaIndonesia), that identify specific rights of LGBT people and the related obligations of States, in order to ensure that they are able to exercise and enjoy those rights safely.[5]

National legal framework

In order to understand what is the current situation of the transgender community’s rights in India, it is fundamental to mention the judgment of the Indian Supreme Court in the case of NALSA v. UOI,[6] which was seminal in upholding transgender persons’ right to their chosen, self-identified gender identity, as well as introducing important specific welfare measures. The Court held that non-recognition of their gender identity denied transgender persons equality before the law, and that “gender identity” must be included within the “sex” category as ground of non-discrimination under the Indian Constitution (see art. 16).

In order to enforce directions and promises established by the NALSA judgment, in April 2015 the Rajya Sabha, the Upper House of Parliament, started to work on a bill ruling on the rights on transgender persons. After the Ministry of Social Justice and Empowerment made the draft available on the website and opened it up to public consultations, the amended text (named “Transgender Persons Bill 2016”)[7]was introduced in the Lok Sabha (Lower House of Parliament). Since then it has been referred to a Parliamentary Standing Committee.

Throughout the whole legislative process, the bill’s content has been of great concern among the transgender community and LGBT NGOs, mostly because the given definition of “transgender” deviates from the one provided by the ISC judgment, and the discrimination issue is only approximately treated.[8]

 Critiques and developments

In particular, the main reasons of concerns expressed by both jurists and NGOs are:

1. The definition of transgender[9] included in the bill is highly problematic, since it incorrectly equates gender identity with biological sex, and by doing so it also reinforces harmful stereotypes about transgender persons being part-male and part-female.

2. Even though the bill prohibits the denial or discontinuation of, or unfair treatment in areas such as employment, healthcare, and the right of movement (Chapter  II, art. 3), it does not provide a definition of discrimination on the basis of sexual orientation or gender identity, as set forth in the Yogyakarta Principles[10] and by the NALSA judgement. 

3. The bill provides a mechanism for gender recognition, which stipulates that transgender persons may make applications to a District Magistrate, who in turn is in charge of making recommendations to the ‘District Screening Committee’, composed of a medical officer and a psychologist or psychiatrist. After analyzing the application, the Committee issues a certificate of identity as a transgender person that people can use to change their first name in official identity documents.[11]

It has to be noted that the provision does not specify any grounds for the District Screening Committee to make its recommendations, in fact the procedure to be followed for legal gender recognition remains vague. Moreover, the whole medicalization process seems to be inconsistent with the right to decide one’s self-identified gender, as stated by the NALSA judgment and by the Bill itself (Chapter 3, art. 4(2)).

Despite all the concerns raised by NGOs,[12] as well as the recommendations provided by the Parliamentary Standing Committee, only a more reasonable definition of transgender persons was introduced in the 2018 version of the Bill[13](that now recognizes the right of individuals to self-identify their gender, and clarifies that there is no need for sex reassignment surgery), while the other problematic aspects have been retained.[14]

As largely reported, transgender people face harassment, discrimination and violence by the police on a daily basis. Furthermore, due to high rates of hostility and the existing social stigma, transgender people suffer from marginalization and are often forced into begging and sex work.[15] The fact that the Bill criminalizes begging by transgender persons[16] is therefore highly problematic, since at the moment it represents one of the few livelihood options available to them.[17]

Conclusion and recommendations

The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it. If the text was adopted in its current form, India would fail in complying with its human rights obligations, not only regarding to the international legal instruments which it is bound to,[18] but also in relation to the fundamental rights enshrined in its Constitution (as also emphasized by the Indian Supreme Court in the case of NALSA v. UOI).[19]

Therefore, acknowledging the concerns of the Indian transgender community, GHRD calls for the Indian Parliament to revise the problematic provisions of the Bill, by taking in more serious consideration all the amendments proposed by the Standing Committee. In particular, the Parliament should ensure:

1. The correction of the definition of transgender, because it still assumes that all persons with intersex variations are transgender persons;

2. The introduction of a broad definition of discrimination, according with the Yogyakarta Principles; 

3. The revision of Chapter VIII (“offences and penalties”),[20] that provides for a maximum of two-year sentence for all offences against transgender people, as in some cases, general criminal law punishes the same crime committed against others with a harsher sentence;[21] 

4. The removal of the application procedure for gender recognition, since it would effectively deny to most transgender people their right to self-identification and it is therefore inconsistent with the judgment in NALSA v. UOI; 

5. The decriminalization of begging, in line with the decision of the High Court of Delhi which declared its criminalization to be unconstitutional;[22] 

6. The inclusion of reservations for transgender persons in education and employment as specified in the NALSA judgment recommendations.[23] 

7. Simultaneously, the creation of a monitoring mechanism of police officers’ actions in order to make them accountable and prevent transgender people from fearing discrimination and attacks.


[1] “All human beings are born free and equal in dignity and rights”, Art. 1 of UDHR.

[2] “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”, Art. 3 of UDHR.

[3] See for example General Comments n. 18/2005, n. 15/2002, n. 14/2000 of CESCR; “Toonen v. Australia”, Communication No. 488/1992 of the CCPR;

[4] Alston P., Anmeghichean M., Cabral M., and others (2007). “The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity”. Available at: http://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf

[5] In this regard, see also the “Born Free and Equal” booklet, published in 2012 by OHCHR (available at: https://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf), and the OHCHR “Free and Equal” campaign launched in 2013 (available at: https://www.unfe.org/about/).

[6] National Legal Services Authority v. Union of India, (15 April 2014) Supreme Court of India judgment 5 SCC 438.

[7] Bill N. 210 of 2016.

[8] International Commission of Jurists (2017). ‘“Unnatural Offences”. Obstacles to Justice in India Based on Sexual Orientation and Gender Identity’. p. 27. ICJ, Geneva.

[9] “(A) neither wholly female nor wholly male; or (B) a combination of female or male; or (C) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.” Chapter I, art. 2(i) of the Bill N. 210 of 2016.

[10] See Principle 2.

[11] Chapter 3, arts. 7-8 of the Bill N. 210 of 2016.

[12] To read more about it, see the Amnesty International India submission on the Transgender Persons Bill of 2016, available at: https://amnesty.org.in/amnesty-international-india-submission-transgender-persons-protection-rights-bill-2016/

[13] Chapter 1, art. 2(k).’”Transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.’

[14] Bill No. 210-C of 2016, as passed by Lok Sabha on 17.12.2018.

[15] International Commission of Jurists (2017). pp. 33-37.

[16] Chapter 3, art. 19 of the Bill No. 210-C of 2016.

[17] Ibid.

[18] These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women.

[19] Art. 14 (equality before the law and equal protection of the law); art. 19 (the freedom of speech, expression and association); and art. 21 (protection of life and personal liberty).

[20] Chapter 8, art. 19 of the  Bill No. 210-C of 2016.

[21] International Commission of Jurists, ‘ICJ .briefing paper: ‘India: legal and jurisprudential developments on transgender rights’ (2018) p.6, Available at: https://lgbtiqainclusionindia.files.wordpress.com/2018/12/icj_2018_briefingpaper_transrights.pdf

[22] Harsh Mander & Anr. vs Union Of India and Others (8 August 2018) High Court of Delhi judgment 2018 SCC 10427.

[23] National Legal Services Authority v. Union of India, (15 April 2014) Supreme Court of India judgment 5 SCC 438, para 60 and 129.