Transgender Persons, and a Group Recognised Late

It created a certification procedure. Sections 4 to 7 give the right to be recognised, provide for an application to the District Magistrate for a certificate of identity, and provide separately for a change in gender on production of proof of surgery.

And it created obligations rather than a commission. Sections 8 to 15 impose duties on the appropriate Government and on establishments, including a complaint officer under section 11, and section 16 creates a National Council for Transgender Persons, which is advisory.

The criticism, in outline

Five points, developed in [The Criticism of the 2019 Act].

The certification procedure sits uneasily with self-identification, which was the core of the 2014 declaration.

The distinction between a certificate of identity and a change in gender reintroduces a medical requirement the declaration had rejected.

The penalties are lower than for the equivalent offences against other persons.

There is no reservation, although the 2014 declaration directed that transgender persons be treated as a backward class.

And the National Council is advisory only, with no power to inquire, summon or recommend in the way the commissions on this paper can.

What the sequence shows

Three propositions, and they generalise beyond this group.

A closed constitutional list is not fatal. Article 15(1) does not name gender identity, and the group was brought inside the guarantee through articles 14, 21 and a purposive reading of sex.

A judicial declaration precedes legislation and shapes it. The 2019 Act exists because the 2014 declaration required something to be done, and its shape is a response to that declaration even where it departs from it.

And legislation can narrow a declaration. The Act gives less than the declaration on identity and on reservation, which is the clearest available Indian example of Parliament implementing a court's direction incompletely. That is a general lesson for Module IV, not a complaint about this Act alone.

Worked example

Any question on the concept, and Module IV's future perspectives.

Say why the group belongs in a concept chapter: it proves the category is open.

Give the five propositions from the 2014 declaration.

Give the four things the 2019 Act did, with section 3's nine heads.

Give the five criticisms in outline.

Close on the three propositions the sequence shows, and note the general lesson that legislation can narrow a declaration.

What it does NOT mean

It does not mean the 2019 Act is worthless. It is the first Indian statute to name this group and to prohibit discrimination against it in nine specified fields.

It does not mean the 2014 declaration is superseded. A statute cannot take away a constitutional holding, and the declaration stands.

And it does not mean article 15(1) now names gender identity. It does not; the ground of sex has been read to include it.

Quick revision

• Why in Module I: transgender persons are the Indian proof that the category is open, and the sequence, court first and Parliament second, is the ordinary pattern for a group the Constitution does not name.
• The 2014 declaration, five propositions: article 14's any person covers them; gender identity is within article 21's personal autonomy and dignity; article 15's ground of sex includes gender identity; article 19(1)(a) protects its expression; and they are to be treated as a socially and educationally backward class for reservation.
• The 2019 Act, four things: section 2(k) defines the group, including kinner, hijra, aravani and jogta; section 3 prohibits discrimination under nine heads; sections 4 to 7 create a certificate of identity from the District Magistrate and a separate change in gender on proof of surgery; and sections 8 to 16 impose obligations, a complaint officer under section 11 and an advisory National Council.
• Five criticisms: certification against self-identification; the medical requirement for a change in gender; lower penalties; no reservation; and a merely advisory Council.
• Three propositions: a closed list is not fatal; a declaration precedes and shapes legislation; and legislation can narrow a declaration, which is a general lesson for Module IV.

Test yourself

1. Why do transgender persons belong in a chapter about the concept of disadvantaged groups? For two reasons. First, because they are the Indian proof that the category is open. The argument for leaving the term disadvantaged undefined is that a closed list would freeze the category and exclude groups that become recognised as disadvantaged later; transgender persons entered Indian law as a protected group only in 2014 by judicial declaration and only in 2019 by statute, so they are the demonstration that the argument was right. Second, because the sequence is instructive and generalises. Article 15(1)'s list of prohibited grounds is closed and does not name gender identity, so the route into the guarantee had to run through article 14, whose language is any person, and article 21, and the recognition came from a court before it came from Parliament, which is the ordinary Indian pattern for any group the Constitution does not name.

2. What did the 2014 declaration hold and the 2019 Act do? The declaration held five things. Transgender persons are entitled to the fundamental rights guaranteed by Part III on the same footing as any other person, article 14's language of any person covering them without more. Gender identity is part of the personal autonomy protected by article 21, and the right to live with human dignity includes the right to a self-identified gender. Article 15's ground of sex is not confined to biological sex but includes gender identity, so discrimination on that ground is prohibited. Article 19(1)(a) protects the expression of gender identity, including through dress, speech and behaviour. And transgender persons are to be treated as a socially and educationally backward class for the purposes of reservation in education and public employment. The declaration was made under article 32 and directed the Union and the States to recognise the identity, to provide for welfare, to address stigma and to give access to public facilities.

The Transgender Persons (Protection of Rights) Act, 2019 followed and did four things. Section 2(k) defines a transgender person as one whose gender does not match the gender assigned at birth, expressly including trans-men, trans-women, persons with intersex variations, gender-queer persons and persons having socio-cultural identities such as kinner, hijra, aravani and jogta. Section 3 prohibits discrimination by any person or establishment under nine heads, covering education, employment, healthcare, access to goods and services available to the public, the right of movement, the right to reside or rent, the opportunity to stand for or hold public or private office, and the enjoyment of goods and services in a government or private establishment. Sections 4 to 7 create a right to be recognised and a procedure for a certificate of identity from the District Magistrate, with a separate provision for a change in gender on production of proof of surgery. And sections 8 to 16 impose obligations on the appropriate Government and on establishments, require a complaint officer under section 11, and create a National Council for Transgender Persons that is advisory.

3. What does the sequence show? Three propositions, and they generalise well beyond this group. A closed constitutional list is not fatal to a group's protection: article 15(1) does not name gender identity, and the group was nonetheless brought inside the guarantee through articles 14 and 21 and a purposive reading of the word sex, so a candidate should never conclude from the absence of a ground that no protection is available. A judicial declaration precedes legislation and shapes it: the 2019 Act exists because the 2014 declaration required something to be done, and its structure is a response to that declaration even at the points where it departs from it. And legislation can narrow a declaration: the Act gives less than the declaration did on self-identification, by requiring a certificate from a District Magistrate and a separate procedure for change of gender on proof of surgery, and it gives nothing at all on reservation although the declaration directed that transgender persons be treated as a backward class. That third proposition is the general lesson for Module IV, and it should be stated as a lesson rather than as a complaint about this Act alone: implementation by statute is not the same thing as implementation of what was held.