Is the Trans Persons Act inclusive?

In a male-dominated society, the transgender community is not only marginalized but also largely forgotten. The Transgender Persons (Protection of Rights) Act, 2019 passed by the Parliament of India was enacted with the apparent objective to safeguard and protect the rights and interests of transgender persons. However, various provisions of the 2019 Act are regressive and violative of the fundamental rights that have been upheld by the Supreme Court in the cases of NALSA vs. Union of India and Navtej Johar vs Union of India.

The 2019 Act attempts to control gender non-conforming identities and non-biological family relations in a manner that keeps them subordinate to the hetero-normative patriarchal family structures. Section 12(3) of the Act that compels transgender persons to either continue living with their birth family or to be placed in rehabilitation centres upon the orders by a competent court is violative of the rights of transgender persons under Article 19 of the Constitution of India, 1950. The Article guarantees to every citizen the right to reside and settle in any part of the territory of India. It does not make any distinction in treatment between minors and adult transgender persons and is an intrusive manner of regulating the choice of where these individuals can choose to live. Denying transgender persons’ the choice to live in any alternative arrangement, say for instance the choice of living as a family within a transgender community, could be seen as an instance of interference with their decisional autonomy recognized by the Hon’ble Supreme Court in the case of K.S. Puttuswamy vs Union of India.

Gender non-conformity among transgender persons begins at a very young age, which very often results in their own families banishing them from homes as they do not fit in the gender binaries. Any diversion from pre-set social norms is considered abnormal which compels transgender persons to seek shelter outside their homes that are accepting of who they are. This is when the guru-chela system, the alternative family structure comes into play. However, these structures are not immune to the vices of exploitation. The hijras are systematically organized as hierarchical communities within themselves. The guru, like an elder in a family, is expected to take care of the chela’s material needs and the chela is expected to show respect and obedience to the guru and give the guru the earnings. Every hijra joins the community under the sponsorship of a guru, who is ideally her guru for life. Once there’s a newcomer, gurus bid for the chela and whoever bids the highest price gets to become the guru of the new transgender person.

The guru chela system is hierarchal, rooted in graded inequality and creates exploitative spaces. Transgender persons are expected to earn for their gurus through begging and sex work. The hijra community has developed effective mechanisms of social control over its members, in the event that chelas do not earn or carry out the instructions of their guru. The hijra community does not empower chelas by encouraging them to study, which would mean that members would not be dependent on their gurus. The hijra community cultivates systematic dependence. Transgender persons are often not accepted by their biological families for being who they are and are exploited in the hands of gurus who provide alternative family structures.

The only solution to break the patterns of discrimination and oppression undoubtedly is to raise awareness and break the stigma, empowerment through education, employment and skill-building of the transgender community can be facilitated through reservations. Reservations are crucial for integrating transgender persons into mainstream society by enabling them to receive education and gain employment in public office. Reservations will ensure that transgender persons are provided with the means to actively participate in social life in the future. Furthermore, this will also ensure there is greater diversity and representation in public appointments. The appropriate method of providing reservations for transgender persons would be horizontal reservations which would cut across the vertical reservations provided based on caste categories and indicators of backwardness. Horizontal reservations recognize that an individual can come from a marginalised caste background and can have other vulnerabilities such as disabilities and transgender status which will essentially address the intersectional discrimination faced by Dalit and Adivasi trans persons.

The Apex court in NALSA held ‘sex’ as a protected characteristic under Articles 15 and 16 of the Constitution to include ‘gender identity’, which would mean that sex-based protections should extend to transgender and intersex persons. The Court also identified transgender and intersex persons as socially and educationally backward citizens. Therefore, transgender persons are entitled to reservations in the matter of appointments, as envisaged under Article 16(4) of the Constitution.

Moving forward, the challenge will be to create social welfare schemes and measures to uplift and empower the trans community which will aim to embrace gender diversity and fluidity.

(The writer is a Karnataka High Court advocate)