Constitutional provisions, Legislations and Relevant Court Orders for the Rights of Queer and Transgender people

Constitution of India became effective on 26 January 1950. It includes framework for the conduct of political practice, primary stakeholders, process, powers and duties of government institution and set of fundamental rights and directive principles for the state policy. There are fundamental rights that provide immediate protection to queer and transgender people. In cases of breach of fundamental rights, the affected person can approach High Court under Article 226 and Supreme Court under Article 32 of the Constitution of India.

While we are looking at constitutional provisions, the orders and judgements passed by Supreme Court and High Courts have played a major role in ensuring fundamental rights followed by framing of legislations and policies for the rights of queer and transgender people.

The fundamental rights that protect the rights of queer and transgender people are:

• Right to Equality (Article 14) includes equality before the law and equal protection of the law. Article 14 is a broad provision read along protection of life, dignity and personal liberty (Article 21) where the government is duty-bound to create legislations and build mechanisms through parliamentary processes or based on Supreme Court intervention. The decriminalisation of Section 377 in Indian Penal Code also came as affirmation of sexual identity ensuring right to equality and privacy. 
• Article 15 and 16 prohibits discrimination based on race, religion, caste, sex, work opportunity, education etc. These provisions provide freedom of gender expression in public or/ and personal spaces. After Transgender Persons (Protection of Rights) Act, 2019 passed, Supreme Court in 2022 ordered government to frame policy in consultation with National Council for Transgender persons as per Section 9 of the Act that prohibits discrimination in employment (recruitment, promotion and other related matters). 

Therefore, Article 14, 15, 16 and 21 are provisions protecting rights of queer and transgender people whereas Article 19 as observed by Supreme Court cannot curtail ones choice of personal appearance and gender expression. 

There are newly framed and pre-existing legislations for the protection of rights. 

1. The Transgender Persons (Protection of Rights) Act, 2019 and Rules: Section 3 of the Act prevent educational institutions, workplaces, healthcare institutions from causing discrimination against transgender people. A denial in accessing housing, food, travel, public places is violation under the Act. To receive benefits under the Act and for identification in the eyes of the law, under Section 5 a transgender person can make an application for certificate of identity as a transgender person to the respective District Magistrate. For a person below 18 years of age, the parents or guardian can make such application. 

The application for identity can be made in two ways:

• Transgender people, who recorded their gender before the Act was enacted, do not need to submit application for identity certificate.
• If the surgical intervention is not made or not needed, application can be directly filed to the District Magistrate with affidavit declaring the gender identity without medical or physical examination and an affidavit to provide place of residence. After application is accepted, an identification number is issued as proof of application. 

Limitations of the Act

1. Definition of Transgender people: Under the Act, Transgender people include “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.” The intersex variations are not based on the gender identity but on biological characteristics and the definition conforms it to be either male or female. The definition insists on the binaries of male and female while failing to recognise non-binary and gender neutral identities. 
2. Biological family as the only family: The definition and understanding of family is narrow. For many queer and transgender people, natal family is source of violence therefore only keeping them as family related to blood or marriage or adoption especially with respect to trans children is likely to impact the choices they want to make.
3. No self-identification: The Act provides for issuing of certificate only after the trans person provides proof for change in gender either to male or female. The Medical Superintendent or Chief Medical Officer of a medical institution shall further recognise this, after which the District Magistrate will approve of it.

1. Amendment under Section 377 of the Indian Penal Code, 1860: Section 377 penalises unnatural offences against any person. Prior to the amendment, any sexual act which is outside the meaning of peno-vaginal was considered as an offence against the order of nature. In September 2018, the provision was struck down decriminalising consensual intercourse among queer and transgender people. The petition filed before the Supreme Court Navtej Singh Johar vs. Union of India in 2016, acted as one of the driving force for the decriminalisation of Section 377.

Limitations

Section 294 of the Indian Penal Code on Obscene acts and songs continues to be challenging for queer and trans people where to the annoyance of others, any obscene act is conducted in or near public place. The harassment and surveillance by police on queer and trans people in public is a struggle irrespective of decriminalisation of Section 377. 

1. Protection of Women from Domestic Violence Act, 2005: The Act protects transgender women, queer cis women and cis woman passing queer people. With respect the transgender women, no certificate of identity is required to seek protection from any kind of abuse in the shared household with a man or natal family. 

Limitations

The Act does not specify neither there is set precedent where transgender women are able to take benefit of DV Act against natal family violence or cis man as an intimate partner. 

1. Protection against violence and discrimination: Queer and trans people have equal rights to file a criminal complaint as per Criminal Procedure Code, 1973 against any criminal offence. As per Section 18 of The Transgender Persons (Protection of Rights) Act, 2019 (TG Act) if a trans person is forced into bonded labour, denied or obstructed from accessing public place, forced to leave place of residence and/or abused and assaulted can file criminal complaint under the TG Act as well as provisions of Indian Penal Code and under SC/ST Atrocities Act if applicable. Although, TG Act provides punishment for six months to two years and fine, ensuring related provision under IPC to be filed in the FIR adds to the likability of enhanced penalty based on the offence. 

Limitations

The punishment under TG Act is very low to prevent further violence or threat to violence.

1. Right to Education and Employment: Right of Children to free and compulsory education is provided under the law protected by Article 21A of the Constitution of India for all children between six to fourteen years of age and Article 19 provides right to practice any professional or to carry on any occupation, business or trade. Further Section 3 of the TG Act prohibits discrimination due to denial, discontinuation and/or unfair treatment in educational institutions, employment and occupation. 

Limitations 

With existing social stigma and safety concerns, the bullying and inaction by the educational institutions leads to drop out of queer and trans children which also goes undocumented.

1. Mental Health Act, 2017: The Act clearly defines the rights of persons with mental illness preventing them to be confined in institutional setting, to live with dignity and have a job, health insurance. These rights are for everyone irrespective of their gender, class, caste, sexual orientation etc. This Act also succeeded in decriminalising suicide that is an attempt to reduce stigma against mental illness and address trauma leading to mental health issues. The Act defines duties for the government to provide resources like shelter homes, halfway homes, legal aid etc. The Act laid down the foundation against “Conversion Therapy” and later played a role in repealing Section 377 of IPC. The Madras High Court has also issued directives for an official notification listing it as wrong under Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002.

Limitations

Although the Act by default ensures capacity and right to consent, the treating mental health professional has the responsibility to prove otherwise. 

Even after Supreme Court has commented against Conversion Therapy but there is no legal force to prevent it whereas, (a)Section 319 of IPC can be invoked under the offence of Hurt as causing infirmity of mind as held in Jashanmal Jhamatmal vs. Brahmanand Sarupananda, and (b) criminal liability for medical negligence under Section 304 A IPC.

1. Medical Termination of Act, 1971: The Act provides for the termination of pregnancy for all persons for upto 20 weeks with the permission of one Registered Medical Practitioner (RMP) and upto 24 weeks with the permission of two RMPs. Under special circumstances, the termination can be permitted after 24 weeks. Except in the case of person below 18 years and a person with mental illness, any person carrying pregnancy can consent for the termination. Through the amendment in 2021, unmarried persons apart from married person for failure of contraceptive method were also added for an easy access to termination.

Limitations

The Act specifies termination of pregnancy only for cis women and limit the access for transgender people.

Even though consent is to be given by pregnant person, the partner or family of the person is expected to consent for the termination. Similarly in case of people below 18 years, in case of consensual sex are supposed to be reported under POCSO assuming that all persons below 18 years are sexually abused.

As part of the Act, provision for confidentiality can be broken in case if it is required for legal purpose likely to impact safety of people.

1. Telemedicine Practice Guidelines 2020: The Guidelines prescribe regulations for physician-patient relationship, liability and treatment, informed consent, referrals, medical records, privacy and security of patient records, reimbursement, counselling etc. The draft for Digital Information Security in Healthcare Act 2018 (DISHA Bill) hence the Guidelines were introduced as a temporary measure. 

Limitations

The data protection continuous to be a challenge where cyberattacks are caused causing concern for the patient privacy. For queer and trans people it causes a bigger challenge to their privacy if they are not out to their biological family or other social places. 

1. The HIV and AIDS (Prevention and Control) Act, 2017: The Act addresses stigma and discrimination and for creating an enabling environment for enhancing access to services. It provides safeguard for accessing diagnostic facilities related to ART and management of infections for people affected by HIV/AIDS. There is a grievance redressal mechanism as well at State. The Act ensures informed consent for the purpose of HIV testing. The Act sees an HIV person below 18 years of age and above 12 years of age to be a guardian for their younger siblings. 

Limitations

The stigma and discrimination is persistent and there is still challenge for them to work as per their willingness. The medical support is not available all the time for HIV/AIDS where missing them causes health crisis.

Some Relevant Orders and Judgments by Supreme Court and High Courts

• AIDS Bhedbhav Virodhi Andolan vs. Union of India: AIDS Bhedbhaav Virodhi Andolan (ABVA) released a document in 1991 detailing experiences of gay people in India. There was reference of blackmailing, extortion and violence against gay people especially by the police. One suggestion was to repeal the legislations that discriminates against members of queer and trans community. Following that, the first petition was filed against Section 377 in 1994 before Delhi High Court. It was result of the refusal to provide condoms for prison inmates on the ground that it encourages homosexuality, which is against Section 377. In 2001 the petition was dismissed.

• Navtej Singh Johar vs. Union of India: After Supreme Court of India upheld the right of transgender persons to decide their gender and directed the Centre and State Governments to grant legal recognition to their gender identity as male, female or third gender in NALSA judgment. The Court acknowledged the rights of persons who do not belong to the binary of male and female, to self-identify their gender. The Court did clarify that gender identity was not limited to biological characteristics. The Court further expanded interpretation of ‘dignity’ under Article 21 to include self-expression, crucial to lead a life of dignity.  After a curative petition was  filed against the Suresh Kaushal vs. Naz Foundation that upheld the constitutional validity of Section 377 and rights of transgender people under Article 14, 15, 19 and 21 of the Constitution. In August 2018, Supreme Court struck down Section 377 to the extent that it criminalised homosexuality. It underlined that there cannot be discrimination in law based on sexual orientation and gender identity and the right to freedom of expression is part of person’s identity.

• KS Puttaswamy vs. Union of India: The Supreme Court of India recognised the right to privacy as a fundamental right under the Constitution. The Court stated that, ‘Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right and the 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…The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.’

• Supriyo Chakraborty vs. Union of India: In the petition, the Court was approached for legal recognition of same-sex marriage challenging Section 4(c) of the Special Marriage Act that only recognised marriage between a male and a female. Apart from right to marry, marital benefits such as adoption, surrogacy, inheritance, social security benefits, perception of family were also part of the petition. The Supreme Court declined to recognise the marriage or civil union. Second review petition is now filed before the Supreme Court against the refusal to accord legal recognition to same-sex marriages. 

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About the Author: Abhiti

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