Critique of Recognition of Identity and Rape Punishment Aspects of

The Transgender Persons (protection of rights) Act, 2019

The Transgender Persons (protection of rights) Act, 2019 here after referred to as The Act1,
left much to be desired. Article 21 of the Constitution of India is the heart of the constitution,
is widely interpreted to include several aspects that make it more meaningful. Imposing a
requirement of certification to declare one’s identity and mandatory sex reassignment surgery
to change gender deprives one from their right to enjoy life and body freely, at its prime. It
makes one conscious of expressing themselves due to the lack of a sense of belongingness. it
is an extreme hindrance to one’s privacy. Article 14 of the Constitution of India ensures right
to equality, the Act prescribing lower punishment than that prescribed in the Indian Penal
Code suggests that transgender identity is not equal to cisgender identity. This exclusion of
trans women from the status of women promotes the perilous thought that there is a correct
method to be women.2

Certification and Self-Identification Aspect

One can apply for a certificate that identifies them as transgender. The certificate applied for
under provision 5 of the Act3 and granted under provision 64, identifies the applicant as
transgender but if one choses to identify as male or female then application for change in
gender has to be made in accordance with provision 7 of the Act5, under which medical
records of sex reassignment surgery are to be submitted along with the application.

Under Article 216 right to life does not just refer to the mere act of breathing or animal like
existence till death. It includes under its ambit the right to live with human dignity, right to
health, right to livelihood, privacy and several others that make the right to life more
meaningful. It is one of the most widely interpreted articles in the Indian constitution. All
through time courts have introduced multiple wide perspectives and interpretations. What is
read under or alongside right to life has evolved with changing times, with every new
challenge presented before the judiciary.
1
The Transgender Persons (Protection of Rights) Act, 2019.
2
'Opinion | Who Counts As A Woman?' (Nytimes.com, 2020)
<https://www.nytimes.com/2019/04/01/opinion/trans-women-feminism.html> accessed 10 May 2020.
3
The Transgender Persons (Protection of Rights) Act, 2019, ss 5.
4
The Transgender Persons (Protection of Rights) Act, 2019, ss 6.
5
The Transgender Persons (Protection of Rights) Act, 2019, ss 7.
6
The Constitution of India 1950, art 21.
Kharak Singh V. State of Uttar Pradesh stretches the impediment to deprivation of one’s life
also extends to all the limbs and faculties one enjoys life with. “The provision equally
prohibits mutilation… or destruction of… any organ of the body through which soul
communicates” 7 there is no straight jacket application, each case, every situation is unique.
when provision 7(1) of the Act is taken into consideration, the sex reassignment surgery that
is mandated by making it compulsory to submit proof of surgery through medical certificates
for an application of certification to change gender from transgender to male or female8 is
violative of the right to life in light of the judgement. As one’s sex organ helps them find
pleasure making it a faculty that allows one to enjoy life, it is a form of communication of
their love, feelings of the heart and soul. Making surgery mandatory to acquire the
certification of the gender of one’s choice9 is a depravation of one’s enjoyment of life.

Mandatory surgery is problematic in two ways, firstly gender and sex are two different
concepts and one’s perception of gender need not conform to stereotypical notions. The right
to gender perception, self-perceived identity that is given on one hand is taken away by the
other due to the mandatory tone in the provisions of the Act.10 Secondly, a person belonging
to the trans community can prefer any sexual orientation, compelling them to change their
sex that is stereotypically presumed for the gender they wish to opt for thrusts the idea of
heterosexuality on them.

In the Sunil Batra V. Delhi Administration case, the court reinforced that right to life
extended to right to enjoy all faculties of the human body in their prime condition. The court
further went on to say that it would include all that gives meaning to a man’s life and that it
also includes the right to live in peace.11 When forced to reassign one’s sex, it defeats their
right to self-determination of their identity making it difficult if not impossible to “to enjoy
all faculties of human body in their prime condition”12. Varying from person to person, one
that has undergone surgery will have to stay under medication or hormone therapy. Some of
them take therapy as they feel alien in their own body, life can definitely not be enjoyed when

7
Kharak Singh vs The State Of U. P. & Others 1963 AIR 1295, 1964 SCR (1) 332.
8
The Transgender Persons (Protection of Rights) Act, 2019, ss 7.
9
Ibid.
10
The Transgender Persons (Protection of Rights) Act, 2019, ss 5,6 and 7.
11
Sunil Batra vs Delhi Administration 1980 AIR 1579, 1980 SCR (2) 557.
12
Ibid.
one is uncomfortable in their own skin.13 The courts have extended interpretation of life to all
that gives meaning to life, one should find, choose their own meaning to life, there cannot be
a fixed meaning for all individuals. Provision 7 of the Act forces its idea of meaning onto a
trans person’s life. One has to choose between living with their identity in the shadows or
give up comfort of their body making living in peace farfetched.

A new dimension to Article 21 was brought in by Francis Coralie V Union Territory of Delhi,
“that right to life extends to right to live with human dignity and everything that goes along
with it,… expressing oneself in diverse forms,… mixing and mingling with fellow human
beings and… right to carry on functions and activities that constitute the bare minimum
expression of human self.”14 gender refers to activities , behaviors and several other
expressions that surrounds the identity of a person. The certification requirement is a major
interference by the state, giving an impression that there are two mainly recognized genders
making it seem like a norm and the third gender for which certification is required, as an
exception. It hinders free and confident expression and a sense of belongingness, inserts fear
of acceptance ultimately depriving them of their right to express themselves and their right to
human dignity. The fear of acceptance will lower their confidence to freely mingle with
people and be themselves. It is clear that the certification provisions of the Act do not go
hand in hand with the idea of human dignity and right to life put forth in the aforementioned
case.

The Act was a result of the National Legal Services Authority V UOI15case judgement which
mandated the government to legally recognise all transgender people and institute measures
for their betterment. The Act ignores an important aspect of the judgement ‘gender identity
did not refer to biological characteristics but to an innate perception of one’s gender’ and held
that ‘no third gender person should be subjected to any medical examinations or tests which
would invade their right to privacy’16

Puttaswamy V Union of India explains that “Privacy of the body entitles… integrity of the
physical aspects of personhood. The intersection of one’s mental integrity and privacy
entitles the individual to freedom of thought, the freedom to believe in what is right, and the
13
Ibid.
14
Francis Coralie V Union Territory of Delhi (1981 AIR 746, 1981 SCR (2) 516)
15
National Legal Services Authority V Union of India AIR 2014 SC 1863.
16
Ibid
freedom of self-determination. When these guarantees intersect with gender, they create a
private space which protects all those elements which are crucial to gender identity.” 17 The
act does not adhere to either of the judgements.
Right to privacy covers one’s intimate decisions regarding their gender, personhood.
Provisions 5 and 6 of The Act go against the judgement making certification a requirement
reduces their self-perception down to a piece of paper that will be subject to the discretion,
approval of another individual, being the district magistrate. Strips away their freedom of
self-determination. The members of the Trans community are made to disclose their
perception of themselves to another. Provision 7 is a gross ignorance of the NALSA
judgement as it makes sex reassignment surgery mandatory when the judgement was against
simple medical examinations and tests as it would be a violation of their right to privacy. The
Puttaswamy judgement protects everything that falls under the private space of gender
identity and having to disclose, receive a certificate in order to be recognised as they wish
and snatching away their power to determination and placing it in the hands of the approver
of the certificate is all individually and collectively violative in nature.

Differential Rape Punishment and its Discriminatory Aspects

The National Legal Services Authority v. Union of India18 judgement recognised the
problem of the transgender community being exposed to sexual violence. It said, “Sexual
assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being
committed with impunity and there are reliable statistics and materials to support such
activities.” This judgment likewise pointed out the judicial role of maintaining the rule of law
and making sure access to justice to marginalised sections of the society. In spite of this
judgment, which was passed in 2014, there is still no effective law safeguarding the
transgender people from sexual brutality. “Sexual violence against the transgender
community has not been taken seriously” It was also held that the term “person” under
Article 14 of the Constitution is not restricted to only male and female, but that hijras and
transgender persons who are neither male nor female also fall within the ambit of “person”
and are entitled to legal protection of laws in all spheres of State activity.

17
Puttaswamy V Union Of India (2017 10 S.C.C. 1.)
18
National Legal Services Authority v. Union of India AIR 2014 SC 1863.
The Transgender Persons (Protection of Rights) 2019 Act's acknowledgment of sexual
violence of transgender people is likewise shaded. The Section 18(d) of the TPPA19
prescribes punishments for rape however doesn't give same punishments for rape in
comparison to situations where the survivor is a ciswomen. The punishment, from six months
to two years makes it a bailable offence because offences with punishment of less than 3
years are bailable
under Section 2(a) of CrPC20. It is likewise milder than that given for rape of a women under
Section 375 of the IPC.21

It must be guaranteed that such a different law would have that sort of an effect and be given
same seriousness. Trans women face issues similar to that of women. The different law
doesn't guarantee stricter penalty to the liable. This just expands the chances of them getting
targeted significantly more. The government needs to make the existing rape laws
increasingly comprehensive and not conditional. It can’t be looked down on as a lesser
offence or weakened in light of the fact that somebody didn't fit under the so-called category
of women.

This inequality in trans women's anti-rape laws is totally arbitrary and unreasonable, the
separate law views trans women as second-class citizen who have no worth like a ciswomen
Not only that, “the right to equality in the Constitution of India is not merely a negative right
not to be discriminated against but also a positive right to be treated as an equal. Under the
later aspect of the right, which is the essence and core of the right to equality, the State is
under the obligation to take necessary steps so that every individual is given equal respect
and concern which he is entitled to as a human being.”22 Hence it violates Article 14 of the
constitution.23 Unequal treatment of equals that is cis women and trans women. The

19
The Transgender Persons (Protection of Rights) Act, 2019, ss 18(d).
20
The Code of Criminal Procedure, 1973, s 2(a).
21
The Indian Penal Code 1860, s 375.
22
'Right to Equality Under Article 14 Of The Constitution Of India' (Legal Bites - Law And
Beyond, 2020)
<https://www.legalbites.in/law-notes-constitution-right-to-equality-under-article-14-of-
constitution/> accessed 10 May 2020.
23
The Constitution of India 1950, art 14.
constitutional right to equality ensures that people in like positions are entitled to be treated
equally, in similar circumstances.

Amrita was a target of misogyny and there are still feminists who simply assume that since
Amrita is a trans woman, her struggle and all the others like her are a "completely different
issue" from non-trans women's misogyny and rape culture. Philosopher Kate Manne strongly
argues that misogyny is better interpreted as the branch of a patriarchal social structure of
"law enforcement": a social order that actively gives power to men and stigmatizes women.
When someone "steps out of line" and refuses to fulfil their gender role given to them,
misogyny emerges on the scene. It uses instruments such as abuse, intimidation and threats to
ensure that the social structure is conserved. I think that a majority of feminists will not
disagree with the arguments. Nonetheless, some feminists believe that misogyny affects just
those who have female sex characteristics like uterus, ovaries and vagina. These feminists
are often referred to as "trans-exclusionary" feminists and the interests of trans women are
not their priority. Feminism, they claim, is for women who are targets of misogyny, and
someone lacking the characteristics of female sex can never be a target of misogyny. I agree
with trans-exclusionary feminists' argument that feminism must be associated with the rights
of any group which misogyny targets but such feminists go horribly wrong in believing that
trans women are not a class like that. They have always been, and we can see that without
actually participating in arguments about what "makes" somebody a woman. You don't have
to have a transgender-inclusive concept of femininity to recognize that trans women are
targets of misogyny too. Sometimes those who impose misogyny don't particularly care about
chromosomes: they respond to gender differences and nonconformity. However, the
paradigm also shows to what degree the scope of misogyny extends beyond cis and trans
women. Harassment against non-binary and trans men, prejudice against gay and non-
gendered people, and cosmetic genital surgery on intersex babies are neither distinct nor
isolated from the abuse, oppression and body surveillance that is regularly faced by non-trans
women. Any such moving "out of line" results into the risk of abuse , intimidation, bullying
or many other harms. In other words, the expense is becoming a victim of misogyny. If we
want to eradicate patriarchy, then we can't just pick and decide which ones of their victims fit
under our wings. The law must deal with the interests and safety of everyone who faces
misogyny as a consequence of opposing patriarchy's fundamental commitments.24
24
Robin Dembroff, 'Trans Women Are Victims of Misogyny, Too – And All Feminists Must Recognize
This | Robin Dembroff' (the Guardian, 2020)
<https://www.theguardian.com/commentisfree/2019/may/19/valerie-jackson-trans-women-misogyny-
Hence the classification is not based on an intelligible differentia as this new law separates
cis women from trans women without any reasonable grounds and this classification fails to
have a nexus to the object it was trying to achieve because the new law will only impose
limits upon transgender people's rights, not benefit them in reality. This will just increase the
risk of trans women getting raped even more due to the decreased penalty in comparison to
that of the punishment of rape of a ciswomen. In my opinion it will just act like an incentive
for a rapist to rape trans women rather than cis women. Furthermore, this new law enforced
by the state will also help these criminals quickly get a bail, and even if found guilty, the
maximum time he will have to spend in prison is just 2 years instead of at least 7 years which
is in the case of rape of cis women.

According to the UNDP’s Report on Hijras/Transgender, 2010, 46% of transgenders in

India were reported to be raped in the year 2009 and 44% were reported to be physically
abused. This study clearly illustrates the transgender community's struggle in the greatest
democracy on earth.25

Rape of trans women is no less than rape of cis women and therefore the government can't
make an arbitrary differentiation between offenders and anyone who has done the same crime
should be held liable for the same punishment. This rape law which aims to protect the
transgenders' rights is making their struggles a joke by refusing to guarantee their
fundamental rights for them. Therefore, any statute that makes a classification that is
unnecessary or detrimental to the objectives of the legislation is considered to be beyond the
constitutional scope. As for what is rational, it will all rely on what the judges think and a
new interpretation of law and reasonableness will arise with every future generation of
judges, thereby making the Constitution a living text. The elimination of gender-based
stereotyping is important to curb gender-biased unequal treatment. Therefore, when applying
the equality test, it is critical that caution be taken so that the stereotyping enforced by the
patriarchal system does not dictate what is rational classification.26 This is why it fails the
reasonable classification and arbitrariness test required under Article 14 of the constitution.27

feminism> accessed 10 May 2020.

25
(Undp.org, 2020)
<https://www.undp.org/content/dam/india/docs/HIV_and_development/legal-recognition-of-
gender-identity-of-transgender-people-in-in.pdf> accessed 10 May 2020.
26
(Galgotiasuniversity.edu.in, 2020)
<https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf> accessed 10 May 2020.
27
The Constitution of India 1950, art 14.
Lower penalty for transgender sexual crimes than the penalty provided under IPC. Suggests
transgender identity is inferior to other identities. Neglects the equality test as discrimination
is based on gender.

For years, transgender people have been subjected to discrimination and it is dehumanizing
that have been denied their respect, opportunities and their fundamental human rights. The
only expectation for Transgender People is that the National Council that is supposed to
provide institutional basis for enforcing the Act could provide more room for legitimate
demands to be incorporated. If not, then this Act may just remain a glove that doesn’t suit the
hand it had been designed for.