ANALYSIS LGBTQIA+

Halt Implementation of the Trans

Act 2019: Activists
G. Ram Mohan
05/Jun/2020 5 min read

Not only is the community unable to meet the feedback deadline due to the
lockdown, trans activists say the rules being framed violate the Act itself.
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File photo of a protest against the trans Bill. Photo: PTI

Hyderabad: With the lockdown for the novel coronavirus making travel
nearly impossible, the Central government has sought feedback on the
rules it has framed to implement The Transgender Persons (Protection
Of Rights) Act, 2019.

Aside from the fact that trans people are unable to meet and discuss the
Act for comprehensive feedback, a group of trans activists has said that
the rules being framed violate the provisions of the Act itself.

This group points out that after the government published the rules on
April 18, it sought responses by April 30 when Lockdown 2 was in force.
The deadline for responses was then extended to May 18. Since
Lockdown 3, which continued to restrict movement, was to end only on
May 17, the activists found this unacceptable. They have now written to Latest
the Ministry of Social Justice and Empowerment, listing their objections.
GOVERNMENT
“The attempt by the government to unveil new rules now is not FSSAI Increases
acceptable,” says Bittu, assistant professor of biology and psychology at Permissible
Pesticide Levels
1 min in
Ashoka University. “The trans community is struggling for basic The Wire Sta!
Spices by 10 Times
read

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 survival at this time and there is an urgent need to provide social U N C AT E G O R I S E D

security, food security and accessible healthcare, both general The Modi Order
Has Regressed Into
healthcare and trans specific healthcare. Given restrictions on
a Great
Harish
Disorder
Khare
movement, the objections we raised in our letter to the government are
5 mins read

not comprehensive because we have only been able to consult POLITICS

transgender people with internet access to the government’s rules, which Interview |
are provided only in the English language.” 'Yediyurappa,
Devegowda...BJP
Tamanna Naseer7 mins
Has
read
No Right to Talk
The Trans Act 2019 was supposed to be the culmination of the Dynasty':
P O L I T I C S Karnataka
community’s long drawn efforts to get legal sanction for its rights via Minister Laxmi
'Women Bearing
Hebbalkar
parliament. But trans activists say the Act has actually removed many of Brunt of PM's
Support to 2 mins read
the gains the community had achieved in the NALSA (National Legal The Wire Sta!
Criminals': Rahul
Services Authority) judgment in 2014. “We have challenged the Gandhi
P O L I T I C Son Prajwal
constitutionality of the Trans Act 2019 in the supreme court (SC). But Revanna 'Sexual
Fearing Political
Abuse'
the government is bent on framing and formalising rules for its Damage, Congress
implementation in the midst of the lockdown. So can the rule-making Govt
N. Rahul
in Telangana
5 mins read
Reopens Rohit
process even proceed, pending a challenge to the very constitutionality
Vemula
D I P L O M ACase
CY
of the Act?” asks Meera Sanghamitra, trans rights activist and convener
Canada's Foreign
of the National Alliance of People’s Movements in Telangana. Interference Report
Says GOI
The Wire
Proxy
Sta! 2 mins read
Trans Act 2019 violates NALSA judgment Agent May Have
Tried to In!uence
'21 Poll
When it delivered its judgment in the NALSA Vs Union of India case in
2014, the Supreme Court bench had called for legislation to safeguard
the rights of transgender persons. The bench said: “Non-recognition of
the identity of Hijras/Transgenders in the various legislations denies
them equal protection of law and they face wide-spread discrimination.”

The 2019 Act gives the district magistrate (DM) the power to recognise a
person as trans, while the NALSA judgment allowed self identification of
gender. The NALSA judgment had further said that any insistence on
SRS (sex reconstruction surgery) was immoral and illegal. It stressed
that self-determination of gender is integral to one’s personality and
dignity. However, the 2019 Act specifies that to identify as male or as
POLITICS ECONOMY WORLD SECURITY LAW SCIENCE SOCIETY CULTURE
female, one must supply proof of surgery to the magistrate. Activists say
this gives immense power to the DM, leading to the possibility of
arbitrariness and misuse. We need your support to keep journalism independent. KNOW MORE

The 2019 Act also institutionalises legal discrimination by making

punishment for sexual abuse against transgenders imprisonment of “not
less than six months but which may extend to two years and with fine.”
This is much less than the punishment for rape against women under
the Indian Penal Code (IPC), which is imprisonment of “not less than
seven years but which may be for life or for a term which may extend to
ten years and shall also be liable for fine.”

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 Furthermore, the 2019 Act which was purportedly enacted to eliminate
discrimination against transgender persons by other persons or
establishments does not even prescribe a punishment for discrimination.
It states that if the immediate family is unable to care for a transgender
person, the person could be placed in a rehabilitation centre after an
order from a competent court. This violates Article 21 of the constitution,
which guarantees the right to life and dignity. The 2019 Act fails to
recognise that transgender persons are capable of making their own
decisions.

The Act also violates the NALSA judgment by failing to provide

reservations in admissions to educational institutions and public
appointments by treating the transgender community as socially and
educationally backward classes of citizens. Fervent appeals to send the
draft Bill to a select committee were brushed aside and the Trans Act
was passed in 2019 on the day Article 370 was repealed. The Rajya
Sabha had only half of its members in attendance when the Trans Act
was passed.

Rules are beyond the scope of the Act

The 2019 Act fails to recognise persons with intersex variations, gender-
queers, and persons with socio-cultural identities like kinner, hijra, nupi
manbi/nupi manba, thirunambi/tirunangai, jogta/jogappa,
mangalamukhi, aravani and shivashakti among others.

Its rules, say activists, are beyond the scope of the Act. The rules
empower the DM to reject an application for a trans certificate and also
criminalises what the Act calls ‘false claims.’

“By giving arbitrary power to the DM to reject the application, the 2019
Act violates the NALSA judgment. The time limit for the appeals process
is also limited. A person can apply to the DM for a Trans certificate and
the DM must grant or reject the application within 60 days. Based on this
certificate, starting from the day a trans person applies to the DM for a
certificate in the male/female binary supported with a surgery
certificate from a medical superintendent, the DM must grant the second
certificate within 15 days. We want the time limit to come down and a
fixed deadline set,” says Bittu.

The rules further violate the NALSA judgment by making SRS

mandatory. The form prescribed by the Act has only one column headed
‘transgender,’ thereby failing to recognise culture specific multiple
gender identities.

Also read: Coronavirus Has Compounded the Ostracisation of LGBTQ Community

“In fact Section 4 (2) of the Act recognises the right to self-identified
gender, but the rules constrain the gender and thereby violate the act
itself,” says Bittu. “It is bizarre for the government itself to fill in the
answer to the one question they are asking of us – what do we want to
identify as? In which other government have you seen the government
ask a question and answer it itself? The Act upholds this right only in

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 the definition portion, but not in the section where ‘recognition of
identity by State is mandated.’”

The rules say that even for self-identification as a transgender person,

you need psychologist’s certificate. This violates the 2019 Act itself. The
NALSA judgment had stressed that self-identification is enough and
rights should flow from it. This has been held as part of the right to
equality. But the rules of the 2019 Act, particularly from Section 2 to
section 9, only focus on identity and an exclusionary process around it.

Only one section is devoted to welfare, but there is no list of specific

ways in which welfare benefits must be provided and no word about
reservations and other form of benefits. The rules only hover around the
identity question, not the welfare issues that follow. According to trans
activists, the Act is a mere bureaucratic exercise which has destroyed
the spirit of the NALSA judgment.

Clause 8 of the rules says the DM shall inform the applicant if the
application has been rejected, but there is no time limit. Clause 9, which
talks of the right to appeal, does not say who is the appellate authority
and in how many days the appeal should be closed.

“The application seeks too many intrusive details like where we stay. It
looks like the product of a colonial hangover, giving the bureaucracy too
much power over human life,” says Meera. “The insistence on getting an
SRS certificate from the medical superintendent of the hospital is
unjustified. Many trans persons have undergone surgeries years ago and
SRS is not a monolithic, single surgery. The rules leave many things
unclear, such as the status and rights of trans persons who have already
undergone surgery years ago and may not be able to produce
documentation at this stage.”

The activists also object to the rules about penal action against
transgender persons who make ‘false claims.’ “Our fundamental demand
is a law to protect transgender people. Why is a provision like that
necessary?” asks Meera. “The general penal law of this country (the
IPC) already has such provisions. A large number of trans people are
illiterate and unlettered. There is a likelihood of confusion and errors.
To say such mistakes could lead to penal action is deeply problematic
and against the spirit of NALSA.”

The activist groups recognise that they do not represent the entire
community at this time. Many voices among transgender persons have
not been heard because of the restrictions on movement during the
various lockdowns. They have thus also sought to halt the process of
feedback while the case remains pendant in the Supreme Court till such
time as the entire community is able to meet in groups and discuss the
Act.

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