Equality and Transgender Persons

And the autonomy reasoning rests on article 21. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161, held privacy an intrinsic part of the right to life and personal liberty, with spatial, informational and DECISIONAL dimensions, the last including bodily integrity, and required any invasion to satisfy legality, need in terms of a legitimate State aim, and proportionality. A requirement of surgery as the price of legal recognition is an invasion of bodily integrity and of decisional privacy, and that is why NALSA called it immoral and illegal.

The statute

Section 3, prohibition against discrimination. No person or establishment shall discriminate against a transgender person on any of the enumerated grounds: denial, discontinuation or unfair treatment in EDUCATIONAL establishments; unfair treatment in, denial of, or termination from EMPLOYMENT or occupation; denial, discontinuation or unfair treatment in HEALTHCARE services; denial or unfair treatment as to access to or enjoyment of any GOODS, ACCOMMODATION, SERVICE, FACILITY, BENEFIT, PRIVILEGE OR OPPORTUNITY dedicated to the use of the general public or customarily available to it; and as to the right of MOVEMENT, the right to RESIDE, and the opportunity to hold public or private office. Note that it binds a PERSON OR ESTABLISHMENT, so it operates horizontally where articles 15(1) and 16 do not.

Section 4, recognition. A transgender person shall have a RIGHT TO BE RECOGNISED as such, in accordance with the provisions of the Act.

Section 5, application. A transgender person MAY MAKE AN APPLICATION TO THE DISTRICT MAGISTRATE for a certificate of identity in the prescribed form and manner, with the prescribed documents; in the case of a minor, by a parent or guardian.

Section 6, the certificate. The District Magistrate, after examining the recommendation of the authority and, if he considers it necessary or desirable, after taking the assistance of other medical experts, shall issue a certificate of identity indicating the gender as TRANSGENDER; the gender shall be recorded in all official documents in accordance with the certificate; and the certificate confers rights and is proof of identity.

Section 7, change in gender. Provides for a person who has undergone surgery to change the gender recorded, on an application supported by a certificate from the Medical Superintendent or Chief Medical Officer of the institution where the surgery was performed.

Sections 8 to 15, obligations of the appropriate Government, non-discrimination in employment, obligations of establishments, a GRIEVANCE REDRESSAL mechanism, the right of residence, inclusive education, vocational training and healthcare.

Sections 16 and 17, the NATIONAL COUNCIL FOR TRANSGENDER PERSONS and its functions.

Section 18, offences. Whoever compels or entices a transgender person into forced or bonded labour, other than compulsory service for public purposes imposed by Government; or denies the right of passage to a public place or obstructs access to it; or forces or causes a person to leave a household, village or place of residence; or harms, injures or endangers life, safety, health or well-being, whether mental or physical, or commits physical, sexual, verbal, emotional or economic abuse, is punishable with imprisonment of NOT LESS THAN SIX MONTHS AND UP TO TWO YEARS, and fine.

The criticism of the Act

Recognition is administrative, not self-declared. NALSA upheld the right to decide one's SELF-IDENTIFIED gender. The Act makes recognition depend on an application to a District Magistrate and a certificate issued by him after examining a recommendation and, if he thinks fit, taking medical assistance. That is a gap between the judgment and the statute, and a candidate should state it as a gap rather than as an outright contradiction, because section 6 as it stands does not on its face require surgery for a TRANSGENDER certificate.

Change to male or female requires surgery. Section 7 keys the change of recorded gender to surgery certified by a hospital, which reinstates in one direction the requirement NALSA condemned in another.

The penalty is low. Six months to two years for offences which, committed against anybody else, would attract the ordinary criminal law with much heavier maxima. The objection is that a special statute has ended by prescribing a lighter punishment for the same conduct against a protected class.

And reservation was directed but not enacted. NALSA directed that transgender persons be treated as socially and educationally backward classes with reservation in admissions and appointments. The Act of 2019 contains no reservation provision. After the One Hundred and Fifth Amendment 2021 a State may include them in its own list under article 342A(3), which is now the route.

The defence of the Act. A certificate produces an identity document that banks, employers, hospitals and registries will act on, which a bare declaration does not; the horizontal prohibition in section 3 reaches private establishments; and the grievance and Council machinery gives a person somewhere to go short of a writ petition.

The limit the Court itself drew

In Supriyo alias Supriya Chakraborty v. Union of India, decided on 17 October 2023. Facts. Petitions seeking recognition of marriage between queer and same-sex couples, principally by reading the Special Marriage Act 1954 in a gender-neutral way or by declaring its provisions unconstitutional so far as they exclude such couples. Held. The petitions FAILED on the principal relief: there is NO FUNDAMENTAL RIGHT TO MARRY under the Constitution; the Special Marriage Act is NEITHER UNCONSTITUTIONAL NOR CAPABLE OF BEING INTERPRETED so as to enable marriage between queer persons, since to do so would require the Court to rewrite the statute; and TRANSGENDER PERSONS IN HETEROSEXUAL RELATIONSHIPS MAY MARRY under the existing law. The Chief Justice's directions were not accepted by the majority.

Why it belongs in this chapter. It marks the boundary between recognition and re-legislation. NALSA declared a status the Constitution's own terms could carry; Supriyo declined to create an institution the statute does not provide. The distinction between reading a ground purposively and rewriting a statute is the constitutional point, and a good answer makes it.

A worked example

A private hospital refuses admission to a transgender person; an employer terminates them on learning of their identity; and a District Magistrate refuses a certificate because no surgery has been undergone. Advise.

The hospital. Section 3(d) of the Act of 2019: denial or discontinuation of, or unfair treatment in, healthcare services. It binds a PERSON OR ESTABLISHMENT, so the private character of the hospital is no answer. Section 15 obliges the appropriate Government to provide healthcare facilities.

The employer. Section 3(b) and (c), unfair treatment in or termination from employment; section 9, non-discrimination in employment; and section 10, obligations of establishments, with a grievance redressal officer under section 11. If the employer is "State" under article 12 on the Ajay Hasia tests, article 16 is available as well.

The certificate. Section 6 requires the District Magistrate to issue a certificate of identity as a TRANSGENDER PERSON after the prescribed procedure; nothing in section 5 or section 6 conditions it on surgery, and NALSA holds any insistence on sex reassignment surgery for declaring one's gender to be IMMORAL AND ILLEGAL. A refusal on that ground is bad, and mandamus lies.

Constitutional claims. Articles 14, 15 and 16 on NALSA, reading gender identity into the ground of sex; article 21 on Puttaswamy for decisional privacy and bodily integrity; and article 19(1)(a) for the expression of identity, which NALSA also recognised.

What is not available. Reservation, unless the State has included transgender persons in its own list of socially and educationally backward classes under article 342A(3). And marriage other than in a heterosexual relationship, on Supriyo.

Distinctions

What it does NOT mean

It does not mean gender identity is a ground named in article 15. It is read into the ground of SEX, purposively, as sexual orientation was in Navtej Johar.

It does not mean the Act of 2019 implements NALSA. It gives effect to part of it, and departs from the self-identification principle in its procedure and from NALSA on surgery in section 7.

It does not mean a certificate is a precondition of the fundamental rights. Articles 14, 15, 19 and 21 apply of their own force; the certificate is a statutory proof of identity conferring statutory rights.

It does not mean transgender persons have a reservation. NALSA directed it; no statute provides it; and the route now is inclusion in a State list under article 342A(3).

And it does not mean the Court will supply what the legislature has not. Supriyo held that there is no fundamental right to marry and that the Special Marriage Act cannot be interpreted to cover queer couples without rewriting it.

Quick revision

NALSA, 15 April 2014: hijras and eunuchs to be treated as a THIRD GENDER for Part III purposes; the right to decide one's SELF-IDENTIFIED gender upheld and legal recognition as male, female or third gender to be granted; treatment as socially and educationally backward classes with reservation in admissions and appointments; separate HIV sero-surveillance centres; any insistence on sex reassignment surgery for declaring one's gender IMMORAL AND ILLEGAL; medical care, separate facilities, welfare schemes and public awareness.

Transgender Persons (Protection of Rights) Act 2019: section 3, prohibition against discrimination by any PERSON OR ESTABLISHMENT in education, employment, healthcare, goods and services available to the public, movement, residence and public or private office; section 4, right to be recognised; section 5, application to the DISTRICT MAGISTRATE, by a parent or guardian for a minor; section 6, certificate of identity as transgender, gender recorded in all official documents, the certificate conferring rights and being proof; section 7, change in gender on certified surgery; sections 8 to 15, government and establishment obligations, grievance redressal, residence, inclusive education, vocational training and healthcare; sections 16 and 17, the National Council; section 18, offences punishable with six months to two years and fine.

Navtej Singh Johar 2018: section 377 unconstitutional as to consensual adult conduct in private; constitutional morality governs. Puttaswamy 2017: decisional privacy and bodily integrity; legality, legitimate aim, proportionality. Supriyo 2023: no fundamental right to marry; the Special Marriage Act neither unconstitutional nor capable of being read to cover queer couples; transgender persons in heterosexual relationships may marry.

Test yourself

1. What did NALSA declare about gender identity? That hijras and eunuchs, apart from the binary genders, be treated as a third gender for the purpose of safeguarding their rights under Part III; and that a transgender person's right to decide their SELF-IDENTIFIED gender is upheld, with legal recognition to be granted as male, female or third gender.

2. What did it say about surgery? That any insistence on sex reassignment surgery for declaring one's gender is IMMORAL AND ILLEGAL.

3. How is the ground brought within article 15? By reading discrimination on the ground of gender identity as discrimination on the ground of SEX, the same purposive move made for sexual orientation in Navtej Singh Johar.

4. What does section 3 of the Act of 2019 prohibit, and against whom does it operate? Discrimination against a transgender person in education, employment, healthcare, access to goods, accommodation, services, facilities, benefits, privileges or opportunities available to the public, movement, residence and the holding of public or private office. It binds any PERSON OR ESTABLISHMENT, so it operates horizontally.

5. How is a certificate of identity obtained, and what is the criticism? By application to the District Magistrate under section 5, who issues it under section 6 after examining the recommendation of the authority and, if he thinks necessary or desirable, taking medical assistance. The criticism is that this makes recognition administrative where NALSA upheld self-identification.

6. What punishment does section 18 prescribe? Imprisonment of not less than six months and up to two years, with fine, for the offences it lists, which include forced or bonded labour, denial of passage to a public place, forcing a person to leave a household or village, and physical, sexual, verbal, emotional or economic abuse.

7. What did Supriyo decide, and why does it matter here? That there is no fundamental right to marry, that the Special Marriage Act is neither unconstitutional nor capable of being interpreted to enable marriage between queer persons without rewriting it, and that transgender persons in heterosexual relationships may marry under the existing law. It marks the boundary between reading a constitutional ground purposively and rewriting a statute.