In 2019, India’s parliament passed a bill to protect transgender rights. However, this new law falls short in several areas. Transgender activists and human rights groups have criticised different trans rights bills since the first one was introduced in 2016.
India’s new law to protect transgender rights has a major flaw in the process it mandates for legal gender recognition, which is the process through which trans people change their documents to reflect their identity. The law has created a two-step process that requires an individual to apply for a “transgender certificate” from the District Magistrate where they live, depending on their self-declared identity.
Then, the certificate holder can apply for a “change in gender certificate,” which requires proof of surgery from a hospital official and the satisfaction of the District Magistrate. One government office gets an extraordinary amount of power to decide who qualifies as trans and coerces people into medical procedures they might not want. In the end, they violate fundamental rights.
Let’s take a look at some of the rights of transgender people in India:
Transgender Rights in the Constitution of India
The judgement has granted transgenders fundamental rights under Articles 14, 15, 16, and 21 of the Constitution.
– Articles 14, 15, and 16 protect the right to equality, while Article 21 provides the right to live with dignity, the right to choice, and the right to privacy, among others.
– Article 21-A also provides for the right to education in India as a fundamental right under Part III of the Constitution, specifically applicable to those who identify themselves as “third gender” at an early age (between six and fourteen years old).
– The NALSA judgement made it clear that all transgenders have the right to education. The Transgender Persons (Protection of Rights) Act 2019 requires educational institutions to be inclusive of transgenders people and provide adequate facilities.
– The Madras High Court also provided directions for educational institutions to provide gender-neutral restrooms and additional categories of gender on important forms.
Inheritance Rights as Pertains to Transgenders
Transgender inheritance rights are a significant issue in India, due to various factors such as gendered laws, lack of identification, and religious laws that do not recognize transgender individuals. Inheritance laws in India are based on personal religious laws and contain gendered terms, making it difficult for transgender individuals to claim inheritance.
Even though the issue has been brought to the attention of the Law Commission of India multiple times, there has been no action taken to address the problem. Additionally, transgenders often lack basic identification documents, making it difficult to prove their identity and claim possession of property and other assets.
The Hindu Succession Act of 1956, Muslim Personal Laws (Shariat), and Indian Succession Act all have their own limitations for recognizing transgender inheritance rights.
The use of Wills may be the safest way of ensuring transgender individuals are given a share in inheritance, as it allows them to bequeath property to anyone of their choice, regardless of their gender or characteristics.
Marriage Rights of Transgenders
Transgenders are often denied the legal right to marry. This also affects their inheritance rights since most personal laws intertwine marriage and inheritance. The Hindu Marriage Act, for example, uses the terms “bride” and “bridegroom” which are open to interpretation as to whether they include transgenders.
In 2019, the Madras High Court held that the word “bride” under Section 5 includes transgender persons as well, on the basis of Article 21, the Puttuswamy judgement, and the NALSA judgement. However, the government has not included any provisions related to the marriage of transgenders in the Transgender Persons (Protection of Rights) Act, 2019.
Although the Act does not prohibit transgender marriage, it is not implemented because authorities’ interpretation leads to prohibition. Overall, Indian legislation restricts the marriage of transgenders in either letter or in spirit of the law.
Employment Rights of Transgenders
The Transgender Persons (Protection of Rights) Act 2019 in India protects the employment rights of transgender individuals by prohibiting discrimination in employment, including unfair treatment and termination, and providing necessary facilities.
Article 14 and 15 of the Indian Constitution also protect transgender individuals from employment discrimination and ensure equality before the law. According to the Constitution and special legislation, transgenders have the right to employment as a fundamental right in India.
Transgender activists and human rights groups have criticised different trans rights bills since the first one was introduced in 2016. However, lawmakers have failed to consider and table the concerns these activists raised. As a result, the new law in India violates the rights of trans people rather than respecting and uplifting long-persecuted and minority communities