Transcript Rights of Transgender Persons Bill 2014, NALSA & Nangai decisions Siddharth Narrain Aug 2015 Ministry of Social Justice and Empowerment Committee 2013-14 • Transgender persons should.

Rights of Transgender Persons Bill
2014, NALSA & Nangai decisions
Siddharth Narrain
Aug 2015
Ministry of Social Justice and
Empowerment Committee 2013-14
• Transgender persons should have the right to
decide their gender expression and identity,
enacting comprehensive civil rights legislation for
transgender persons
• Amending the constitution to include gender
identity and sexual orientation as a ground for
non-discrimination
• Enacting a special legislation to deal with
transgender exclusion on the lines of legislation
outlawing untouchability
NALSA v Union of
India
• Judges• Decided in April 2014, Intervenors: Poojaya Mata
Nasib Kaur Ji Women’s Welfare Society & Laxmi
Narayan Tripathi
• NALSA JUDGEMENT 2014: Transgender - an umbrella
category that includes those who identify as male to
female, female to male, intersexed, and transsexual
persons as well as those who identify as hijras, kothis,
kinnars,
aravanis/thirunangis,
jogappas/jogta,
shivshakthis and eunuchs (a term that is outdated).
• The term transgender includes ‘pre-operative, postoperative and non-operative’ transsexuals who strongly
identify with persons of the opposite sex.
• Moves away from a biological evaluation of gender for
purposes of the law.
• Hijras to be treated as a “third gender” to safeguard
their fundamental rights.
• Transgender persons have the right to decide their self
identified gender.
Yogyakarta Principles 2007
• Sexual orientation is understood to refer to each
person’s capacity for profound emotional, affectional
and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender or the
same gender or more than one gender.
• Gender identity is understood to refer to each person’s
deeply felt internal and individual experience of
gender, which may or may not correspond with the sex
assigned at birth, including the personal sense of the
body (which may involve, if freely chosen, modification
of bodily appearance or function by medical, surgical
or other means) and other expressions of gender,
including dress, speech and mannerisms.
EQUALITY/NON-DISCRIMINATION
• Art 15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
• (1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them
• (2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to (a) access to shops, public
restaurants, hotels and palaces of public entertainment; or
• (b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public
• (3) Nothing in this article shall prevent the State from making any
special provision for women and children
• (4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent
the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes
Art 16
• Art 16(2) : Equality of Opportunity in Matters of
Public employment: There shall be equal
opportunity for all citizens in matters relating to
employment or appointment to any office under
the State
• No citizen, shall, on grounds only of religion,
race, caste, sex, descent, place of birth,
residence, or nay of them, be ineligible for, or
discriminated against in respect of, any
employment or office under the State
Equality and Non Discrimination
• The term ‘sex’ in the non-discrimination clauses
of Articles 15 and 16 to include ‘gender identity’
• States that the intent behind the framing of the
term ‘sex’ in these sections was to prevent the
direct or indirect attitude to treat people
differently, for not being in conformity with
stereotypical generalizations of binary genders.
• The court’s ruling prohibits discrimination against
transgender persons in public spaces like hotels,
public restaurants, roads, shops and places of
public entertainment.
Reservations
• Courts rely on Arts 15 and 16 to hold that :
• Legally entitled and eligible to get the benefits of
'Socially and Educationally Backward Class’
• State is bound to take some affirmative action for their
advancement
• TGs are also entitled to enjoy economic, social, cultural
and political rights without discrimination
• Entitled to reservation in the matter of appointment,
as envisaged under Article 16(4) of the Constitution.
• State is bound to take affirmative action to give them
due representation in public services.
Freedom of Expression
• The right to freedom of speech and expression to include
the right to expression of one’s self identified gender
• Self-identified gender can be expressed through dress,
words, action or behavior or any other form.
• No restriction can be placed on one’s personal appearance
or choice of dressing, subject to the restrictions contained
in Article 19(2) of the Constitution. (which include ‘public
order, decency and morality)
• Values of privacy, self-identity, autonomy and personal
integrity are fundamental rights guaranteed to members of
the transgender community under Article 19(1)(a)
The Right to Life
• Art 21 includes the right to live with dignity and
the right to autonomy
• The right to life includes the right to live with
dignity and the right to human development.
Article 21
• Article 21, the court says, not only provides a
negative right, but also places a positive
obligation on the state to ensure that the
transgender community is able to live a life with
dignity.
Binary Genders & the Law
• Hijras/Eunuchs, therefore, have to be considered as Third
Gender, over and above binary genders under our
Constitution and the laws.
• Binary notion of gender reflects in the Indian Penal Code,
for example, Section 8, 10, (man=male; women=female)
and also in the laws related to marriage, adoption, divorce,
inheritance, succession and other welfare legislations like
NREGA, 2005, etc.
• Non- recognition of the identity of Hijras/Transgenders in
the various legislations denies them equal protection of law
and they face wide-spread discrimination.
Gender Identification
• Gender identification becomes very essential
component which is required for enjoying civil
rights by this community.
• It is only with this recognition that many rights
attached to the sexual recognition as ‘third
gender’ would be available to this community
more meaningfully viz. the right to vote, the right
to own property, the right to marry, the right to
claim a formal identity through a passport and a
ration card, a driver’s license, the right to
education, employment, health
SC Directions: The Nine Fold Path
• (1) Hijras, Eunuchs, apart from binary gender, be treated as “third
gender” for the purpose of safeguarding their rights under Part III
of our Constitution and the laws made by the Parliament and the
State Legislature.
• (2) Transgender persons’ right to decide their self-identified
gender is also upheld and the Centre and State Governments are
directed to grant legal recognition of their gender identity such as
male, female or as third gender.
• (3) We direct the Centre and the State Governments to take steps
to treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission in
educational institutions and for public appointments.
• (4) Centre and State Governments are directed to operate separate
HIV Sero-survellance Centres since Hijras/ Transgenders face
several sexual health issues.
• (5) Centre and State Governments should seriously address the
problems being faced by Hijras/Transgenders such as fear, shame,
gender dysphoria, social pressure, depression, suicidal tendencies,
social stigma, etc. and any insistence for SRS for declaring one’s
gender is immoral and illegal.
• (6) Centre and State Governments should take proper measures to
provide medical care to TGs in the hospitals and also provide them
separate public toilets and other facilities.
• (7) Centre and State Governments should also take steps for
framing various social welfare schemes for their betterment.
• (8) Centre and State Governments should take steps to create
public awareness so that TGs will feel that they are also part and
parcel of the social life and be not treated as untouchables.
• (9) Centre and the State Governments should also take measures to
regain their respect and place in the society which once they
enjoyed in our cultural and social life.
Law, Family and Gender
• THE JUDGMENT SQUARELY RECOGNIZES THE FAMILY AS A SITE
OF VIOLENCE AND DISCRIMINATION, SO THE REALM OF
DISCUSSION GOES BEYOND THE STATE
Nangai Judgment (Madras HC)
• Petitioner born and brought up as female
• Recruited as a Grade II police constable
• In a routine medical check up, medical officer
marks her as “transgender”, sends her to be
examined by an endocronoligist
• Diagnosed with ‘male pseudohermaphrodism’
• Classified medically as ‘transgender by birth’
• Action taken against her for failing to disclose she
was transgender
Madras HC (Nangai) Case
• There is no definition of the term ‘male’ or ‘female’ in Indian law
• There is no law in this country prescribing the mode to determine
sex.
• If the chromosomal test is held valid in this particular case, then
society should be using this test for all people in each every of
these transactions.
• Female born persons who are held medically to be male have the
choice to choose the gender of their choice- if she wants to be
recognized as female then the government cannot force her to be
declared transgender.
• Compelling an individual to undergo a medical examination is a
violation of the right to privacy. (especially in the absence of
legislation granting rights to transgenders). Court held that the
petitioner was female and was eligible to be appointed a woman
constable.
• NALSA did not declare MTFs to be ‘third gender’
• POTENTIAL TO RETHINK GENDER
STEREOTYPES and the QUESTION OF
BIOLOGICAL DETERMINISM - WHO IS A
WOMAN, WHO IS A MAN?
Present Government Stand
• Re-emphasises the distinction between “LGB”
and “T”
• Questions the logic of putting Transgenders as
a whole in OBC category
• Asks for the National Commission of Backward
Classes to look into this matter as they are
mandated to do so, not the courts
• Jat Rajasthan Reservation case- SC
observations
Rights of Transgender Persons Bill
2014 (passed in Rajya Sabha)
• Government shall ensure steps for reasonable accommodation (i.e.
all steps to ensure that trans persons enjoy the same benefits as
others but no undue hardship to government )
• ‘Discrimination’ defined widely – any
distinction/exclusion/restriction which impairs the recognition on
equal basis of all human rights and fundamental freedoms and
includes denial of reasonable accommodation
• ‘transgender person' means a person, whose sense of gender does
not match with the gender assigned to that person at birth and
includes trans-men and trans- women (whether or not they have
undergone sex reassignment surgery or hormone therapy or laser
therapy etc.), gender-queers and a number of socio-cultural
identities such as —kinnars, hijras, aravanis, jogtas etc.
EMPLOYMENT
• (1) No establishment shall discriminate against any transgender
person in any matter relating to employment including but not
limited to recruitment, promotion and other related issues.
• (2) Any transgender person, if eligible for any post which is be filled,
shall have the right to appear for selection and hold the post if
selected.
• Setting up Employment Exchange mechanism
• Mechanisms for provision of loans at concessional rates to
transgender persons for self-employment ventures, and for
marketing of their products.
• Two percent seats for direct government recruitment
• Incentives to private sector to ensure that 2 % of recruitments are
transgender within 5 years of law passing
HEALTH & EDUCATION
• Separate HIV/ Sero Surveillance centres
• Free SRS
• Barrier free access to health care
• Two percent seats reserved in primary,
secondary, higher education
• Government institutions to admit and provide
trans persons equal facilities
PERSONAL LIBERTY
• No person can be deprived of the right to liberty
purely on grounds of being transgender
• Protection from torture, cruel, inhuman
degrading treatment or punishment
• Executive Magistrate can take steps to intervene,
provide shelter and provide maintenance
• All appropriate measures to prevent abuse,
violence and exploitation against transgender
persons
INSTITUTIONAL MECHANISMS
• COMMISSIONS: National and State Commissions
with representatives from trans community
• Powers include: identifying procedures, policies ;
coordinating government action; taking up
complaints, intervening in courts, identifying laws
inconsistent with this act, and recommending
action, studying treaties, monitoring utilization of
funds
• COURTS- for disposing off civil suits
• EXECUTIVE MAGISTRATE
FOCUS ON TRANSGENDER CHILDREN
• Trans children enjoy human rights at par with other
children
• Facilities for persons including transgender children who
have no families or have been abandoned, or are without
shelter or livelihood
• No child who is a transgender shall be separated from his
or her parents on grounds of being a transgender except on
an order of competent Court, if required in the best
interest of the child.
• Where the immediate family is unable to care for a
transgender child, the competent Court shall make every
effort to place such child within his or her extended family,
or within the community in a family setting. ‘Family’ means
a group of people related by blood, marriage or adoption to
a transgender person.
Section 36A Karnataka
Police Act, 2009
• Use of the term napumsaka/eunuch
• Preparation and maintenance of a register of the
names and places of residence of all eunuchs
residing in area who are “reasonably suspected”
of
• (a) Kidnapping or emasculating boys
• (b) Committing unnatural offences
• (c) Or any other offences
Justice Verma
Committee 2013
• Transgender communities are entitled to an affirmation of
gender autonomy
• Our cultural prejudices must yield to constitutional
principles of equality, empathy and respect.
• Since the possibility of sexual assault on men, as well as
homosexual, transgender and transsexual rape, is a reality,
the provisions have to be cognizant of the same.
• Recommended that the survivor/victim under section 376,
Indian Penal Code be ‘person’ instead of ‘woman’
• Criminal Law Amendment Bill does not follow this
suggestion, debate around terminology in law
Use of IPC Provisions
•
•
•
•
•
•
268: Public Nuisance
294: Obscenity
319: Hurt
320: Grievous Hurt
359: Kidnapping
377: Unnatural Sex
• 1861: Section 377 IPC: 377. Unnatural offences.—Whoever
voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in
this section.
• Interpreted over the years to criminalize all non penovaginal sex