(In this Guest Post, Vasudev Devadasan concludes his analysis of the Transgender Bill.)
In the last post (here) we defined transgender persons as individuals who experience a conflict between the ‘gender identity’ assigned to them at birth, and ‘gender identity’ they develop through the course of their lives. Thus, an individual may be designated ‘male’ or ‘female’ at birth, but over time may come to identify with the opposite sex, or even outside the male-female binary as a transgender. In NALSA v UoI (NALSA) the Supreme Court affirmed both the right of the individual to choose their own gender and the existence of a third gender (transgender). The Court also ruled that discrimination against transgender persons for failing to conform with gender stereotypes (by choosing an alternative ‘gender identity’) amounted to discrimination on the grounds of ‘sex’ and was prohibited by Articles 15 and 16 of the Constitution. Lastly the Court held that transgender persons were members of ‘backward classes’ deserving of reservations under Articles 15(4) and Articles 16(4) of the Constitution.
When making these statements the Court had the benefit of speaking in the abstract. In implementing these guarantees the government faces the task of conferring benefits on a group whose membership is based on a subjective determination of conflicting ‘gender identity’ experienced only by the individual in question. How does the government provide reservations to ‘transgender persons’ when the only way to know whom a ‘transgender person’ is, is an internal conflict experienced by the transgender person?
In this post, I examine the anti-discrimination provisions in the new Transgender Persons (Protection of Rights) Bill and explore the difficulty of securing equality and affirmative action for a group whose membership cannot be objectively determined. I also examine the current Bill’s provisions on begging and residence (prohibiting transgender persons from being separated from their families) and question whether they are in tune with the developing concept of ‘autonomy’ under the Constitution.
The current Bill provides a procedure for the ‘Recognition of Identity of Transgender Persons’. While we discussed the shortcomings of this procedure on the last post, the rationale for having a recognition procedure is clear. Non-discrimination rights arise when citizens belong to a class or category of citizen as distinguishable from other citizens. A claim to non-discrimination will be acknowledged when a citizen can demonstrate belonging to this class or category and then show that such belonging is the “ground” for the discrimination in question. Therefore, the current Bill provides a definition of ‘transgender person’, provides a procedure to recognise a ‘transgender person’, and then Section 3 of the Bill states, “No person shall discriminate against a transgender person…” by denying education, unfair treatment in employment etc. The provision thus protects individuals who are recognised as transgenders under the scheme of the Bill.
Before moving on, two points should be noted. Firstly, the Bill does not create reservations for transgender persons in education or employment. While the National Commission for Backward Classes did formally recommend that transgender persons be included in the category ‘Other Backward Class’, and while these recommendations are ordinarily binding on the Government, the current Bill does not create reservations for transgender persons. Secondly, the Bill does not define the term “discrimination”. By not defining “discrimination” the Bill is silent on how and when the protection guaranteed by Section 3 would be violated. In contrast, the 2014 Rajya Sabha Bill defined discrimination as “any distinction, exclusion or restriction on the basis of gender identity and expression which [restricts the exercise of human rights] on an equal basis with others.” Just as the Supreme Court did in NALSA, this definition states that where a person is treated differently because of their ‘gender identity or expression’, and such different treatment affects their enjoyment of rights, discrimination is deemed to have occurred.
The problem facing the government is that by creating a recognition procedure that the State controls, they have severely restricted the individual’s ability to self-identity with the gender of their choice (a choice the Court in NALSA held to be protected by Article 21). There are two seemingly conflicting goals here: (a) to fix and regulate the categories of sex (male, female and transgender), and (b) to allow individuals to freely move between these categories by choosing their own ‘gender identity’. The current Bill seeks to filter the subjectivity so essential to the transgender identity through a lens of legal certainty. The question is therefore whether the actual or potential mobility of ‘gender’ that NALSA and the very definition of transgender espouse can be accommodated within a regulatory non-discrimination framework.
Victoria and New South Wales for example dispense with the requirement of having a fixed legal identity when determining whether transgender persons have been discriminated against. The Victorian legislation (the Equal Opportunity Act) prohibits discrimination on the grounds of ‘gender identity’ which is defined as:
…the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):
- by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
- by living, or seeking to live, as a member of the other sex.
Thus, what matters is not whether the individual is recognised in law as a transgender person. Rather, whether they are perceived by society as being a transgender person. Thus, rather than the law having to recognise an immutable characteristic of ‘transgender’ which both violates the principle of self-identification and aims to ‘normalise’ transgender persons by creating a fixed gender/legal identity, discrimination occurs when an individual is discriminated against because they are perceived to be transgender, irrespective of whether they are actual transgender. For example, if an individual is denied employment on the ground that they are perceived to be transgender, a valid claim for discrimination can be made against the employer. Sharpe terms this the “interplay of performance and gaze” and this provides a framework within which the law is able to comprehend the fluid nature of the transgender identity and yet protect transgender persons from discrimination. Conferring rights without requiring a fixed legal identity.
While this solution may work for non-discrimination simpliciter, it still leaves the question of affirmative action open. Where legal benefits are positively conferred on a group, the State has a legitimate interest is ensuring that the individuals who are availing of these benefits belong to the group. The current Bill creates a ‘screening committee’ which includes medical personnel to verify and recognise an individual as a transgender person. This is likely to expose individuals to unwanted and intrusive scrutiny. Thus, a balance needs to be struck between the State’s interest to curb the abuse of affirmative action benefits, and an individual’s freedom to change genders with dignity.
In Secretary, Department of Social Security v HH, Justice Brennan moves the needle away from biological verification, to a slightly more holistic test. In determining an individual’s gender, he notes, “the respondent’s psychological and social/cultural gender identity are the matters of primary importance not sex chromosomal configurations or gonadal or genital factors…” The understanding that ‘sex’ is not a determinant factor, and that “psychological, social and cultural” factors can determine gender seems to be a step in the right direction. This ties in with the Indian Supreme Court’s understanding that an individual’s psyche is part of ‘sex’ within the meaning of Articles 15 and 16. If the ‘screening committee’ that the Bill creates was to examine this, a balance maybe struck.
Provisions on Residence
The current Bill also seeks to secure the right of transgender persons to stay in their own home. Section 13(1) states that, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court…” Sub-clause 3 of the same Section goes on to note, “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall […] direct such person to be placed in a rehabilitation centre” The framework created by the Bill compels a transgender person to either continue living with their family, or be placed in a rehabilitation centre. The section makes no distinction between a ‘minor’ and an adult and creates a rather intrusive mechanism of regulation where a transgender person cannot choose where to live.
The Parliamentary Standing Committee raised concerns that the two options provided by the Bill would not guarantee protection given the realities present on the ground. Several transgender persons face significant abuse at the hands of their own families who deny them the right to self-identity with a gender of their choosing and restrict their gender expression. The nature of the rehabilitation centres is also unknown. The Committee noted that several transgender persons choose not to live at home, but rather within transgender communities where they form an alternative network of friends and family.
The Committees observations on Section 13 raise interesting constitutional questions given the understanding of ‘autonomy’ articulated in the Right to Privacy (Puttaswamy) earlier this year. At the core of the Court’s rationale in Puttaswamy was the idea that privacy protects an individual’s liberty by securing ‘dignity’ and ‘autonomy’. Privacy in the Court’s articulation is the right to determine how one should exercise the freedoms guaranteed by the Constitution. Thus, ‘autonomy’ guarantees “the right of every person to make essential choices which affect the course of life.” (⁋113) The State cannot interfere with an individual’s decisions concerning several core areas that the Court describes (non-exhaustively) as including family, marriage, procreation, and even what to eat and drink.
By compelling transgender persons to either live at home or in a State run rehabilitation centre Section 13 seems to deny them the right to choose the community they wish to live in. Deciding to live at home or not would fall within an ‘essential choice’ relating to ‘family’. And by denying transgender persons the third alternative (of living within a transgender community) the case could be made that the State is interfering with their ‘autonomy’ as protected under Puttaswamy.
Provisions on Begging
Lastly, Section 19(a) of the Bill makes it an offence to ‘compel or entice a transgender person’ to commit the act of ‘begging’. Transgender persons have a well-documented history of suffering abuse at the hands of anti-vagrancy provisions such as this, simply because begging is often the only choice of income generation available. As the Standing Committee noted, transgender persons are often booked under analogous ‘begging’ provisions merely because they are present in public places. While the provision only penalises the offence of compelling a transgender person to beg, there is a thin line between criminalising an individual for begging out of their own volition and compelling another to beg, with the latter often being used against the former.
In Ram Lakhan v State, Justice Ahmed examined this distinction in the context of the implicit defences to the offence of ‘begging’. He noted that when an individual begs out of the sheer compulsion to stay alive, he is protected under the defence of ‘necessity’. Where an individual is compelled to beg he does so under threat of violence and even death and is thus protected under the defence of ‘duress’. In both cases, the individual has no real choice, and it is this involuntariness that provides the basis for both the defence of ‘necessity’ and ‘duress’ making it a “distinction without a relevant difference”. In the course of practical policing there may be obvious benefits to the distinction between a begging racket and a person begging to prevent the onset of starvation. However, the inclusion of the legislative provision as it is currently framed may be counter-productive, especially given the existence of parallel anti-begging laws.
We have seen how the current Bill fails to understand the core principle of ‘self-identification’ in defining a transgender person, how it struggles with the question of non-discrimination, and takes an approach to residence and begging that doesn’t appreciate the nuances of the law and its relationship with the ground realities faced by transgender persons. Creating a regulatory framework for transgender persons is undoubtedly a complex and delicate task. Certain questions, such as legal recognition for transgender persons, and the prevention of discrimination pose questions that expose the limits of law as crafted within the male-female binary. On the points of residence and begging however, the Bill seems to lack an understanding of ground realities required to upturn generations of neglect towards transgender persons. Even in their best possible forms, these provisions would require sensitive administration to have a meaningful impact in the long run. Perhaps what is most troubling is that none of the criticisms raised in this piece or the last are new. Given the excellent platform created for the government with the NALSA verdict, the original Rajya Sabha Bill and the various committee reports, the fact that the Bill remains in its current form is lamentable.