A Constitutional Challenge to the Transgender Persons Act in India

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–Dhruva Gandhi (University of Oxford) and Unnati Ghia (National Law School of India University, Bangalore)

With presidential assent, the Transgender Persons (Protection of Rights) Bill, 2019 passed by the Indian Parliament has now become law (“Act”). The Act leaves much to be desired. There is a lack of affirmative action measures across the employment and education sectors. There is no provision for any accommodative measures such as gender neutral washrooms. Moreover, the penal sanctions for sexual abuse are inadequate and there is a clear conflation of transgender persons with intersex individuals.

Unfortunate as they might be, legislative amendments appear to be the only way to cure these particular defects. In the interregnum though, there is some scope to reverse a few regressive measures by constitutional challenge.  

Admittedly, Section 4 of the Act is progressive in that it recognises the right to self-perceived gender identity of all transgender persons. What the Act has conferred on the one hand though, it has taken away on the other. Section 5 states that for a transgender person to identify themselves as per their perceived gender identity, they must make an application to the District Magistrate, comply with a prescribed procedure and obtain a ‘certificate of identity’. In this post, we outline how there can be a possible constitutional challenge to the Act under Part III (Fundamental Rights) of the Indian Constitution.

‘Sex’ Discrimination

Article 15 of the Indian Constitution prohibits discrimination by the State against any person on the ground of sex.. Sex though, has not been understood by the Supreme Court of India (“SCI”) to mean only biological sex. In the landmark decision of NALSA v. Union of India, the SCI interpreted “sex” to include one’s gender identity.

First, on this understanding of sex, there is little doubt that Sections 4 and 5 of the Act directly discriminate against transgender persons. They require the transgender community to obtain a certificate of identity for the State to legally recognise them. In contrast, no cis-gender individual is ever required to follow any such procedure or obtain a certificate. This is clear classification on the basis of gender, and one that is likely to further isolate the community in society. The Act explicitly discriminates against transgender persons and therein falls foul of Article 15 of the Constitution.

Second, the Act does not follow NALSA’s conceptualisation of gender on a spectrum. Rather, it rests on an assumption that a gender binary is the norm. A transgender person finds no places within this binary, and therefore requires certification for legal recognition of identity. Such laws are fundamentally premised on social stereotypes – a basis the SCI took issue with last year in the much celebrated gay rights decision of Navtej Johar v Union of India.

Finally, the Act breaches Article 15(1) by mandating government certification for a sex-reassignment surgery as well. A person born into the biological sex they conform with needs no such certification for hormonal therapy or a mastectomy, for instance. It is the transgender community alone that needs such authorisation from a Chief Medical Officer.

‘Chilling Effect’

The Act also creates a chilling effect on the free expression of identity by transgender individuals. Article 19(1)(a) of the Constitution state that all citizens of India shall have the right to freedom of speech and expression. On more occasions than one, the SCI taken the view that laws which create a chilling effect i.e. laws that result in individual self-censorship, are constitutionally impermissible.

It is important to note that state functionaries in India have been at the forefront of perpetuating discrimination and violence against transgender persons. A transgender person visiting a government office risks high chances of being treated with suspicion and contempt. In some cases, subtle hostility transcends into outright harassment at the hands of government officers. They are often denied what is due to them. This is because of the social prejudices and stigma that has attached itself to the transgender identity. By prescribing the procedures that they do, Sections 4 through 7 effectively compel the transgender community to engage with this biased bureaucracy.

This procedure attaches a cost to the basic expression of one’s identity and may have a deterrent effect on individuals seeking self-identity. A transgender individual may avoid the certification process altogether rather than subject themselves to the stigma involved therein. These sections of the Act create a chilling effect and thus, are in stark violation of Article 19(1)(a).

Until now however, the SCI’s application of the chilling effect doctrine has been confined to criminal liability for speech. It has not extended to examining laws casting undue burdens on citizens. Even so,  Sections 4 through 7 curb free expression of identity simpliciter. In response, the State may defend these provisions as reasonable restrictions under Article 19(2). However, Article 19(2) only identifies specific grounds such as ‘national security’, decency’, ‘morality’ and the like for the measure to count as a reasonable restriction on free speech. Mere administrative convenience purportedly for welfare does not make the cut.

‘Invasion of Privacy’

These provisions also intrude upon a notion of dignity and a zone of privacy that is now constitutionally protected under Article 21, following the decision of the SCI in K.S. Puttuswamy (I) v. Union of India. A bench of nine judges held that privacy is a natural right — one that is essential to self-determination. It identified privacy as an essential feature of a pluralistic society with free expression of thoughts and beliefs. Privacy enables individuals to take decisions that find expression in one’s personality and protects choices extending to one’s body, faith and in this case, gender.

Through this Act, the State is extending its reach to a decision that is inherently intimate. It is mandatorily compelling individuals to expose themselves to red-tapism, to claim something as personal as one’s gender identity. This infringes their right to privacy and decisional autonomy. The privacy breach is only one facet of the violation. The process also potentially strips individuals of their dignity by having them petition the State for their intrinsic identity.

Conclusion

The Act may therefore be remedied in part through a constitutional challenge. Such challenges however, are limited in their effect on society — the rights under the Indian Constitution are against the State and its functionaries. This leaves a large proportion of discrimination and inequity persisting in society unaddressed. In such cases, Parliament bears the burden of enacting an effective anti-discrimination law to protect minorities like the transgender community. Unfortunately, the Act by no means effectively guarantees the community protections from harassment and inequality. In fact, it falls far from what the SCI envisaged in NALSA. This is a critical reminder that even though Indian constitutional rights jurisprudence has progressed over the years, the judiciary alone cannot shoulder the burden of protecting citizens. Progressive legislation cognisant of the particular conditions of minorities is equally important in an egalitarian democracy.

Suggested Citation: Dhruva Gandhi and Unnati Ghia, A Constitutional Challenge to the Transgender Persons Act in India, Int’l J. Const. L. Blog, Dec. 27, 2019, at: http://www.iconnectblog.com/2019/12/a-constitutional-challenge-to-the-transgender-persons-act-in-india