CLPR has filed a writ petition before the Supreme Court of India on behalf of Grace Banu, Vyjayanti Vasanta Mogli, KMV Monalisa, Anindya Hajra and Sirra Santosh who are members of the transgender community, and well-known transgender rights activists who have been working for the promotion of the rights and entitlements of transgender, intersex, and gender non-conforming persons in India for the last several years. The writ petition, against the Union of India represented by both Ministry of Law and Justice and Ministry of Social Justice, is seeking a declaration that Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 are unconstitutional, being violative of their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution of India, 1950. This PIL is numbered W.P. (Civil) No. 406/2020.
The Petitioners submit that the Transgender Persons (Protection of Rights) Act, 2019 which was enacted with an objective to provide for the protection of rights of transgender persons, in reality, violates their fundamental rights and goes against the judgments of this Hon’ble Court in National Legal Services Authority v. Union of India, K.S. Puttuswamy, and another v. Union of India and Others and Navtej Singh Johar and others v. Union of India all of which guarantee that the right to self-determine one’s gender identity is an integral part of one’s right to life, dignity, and autonomy, and this basic guarantee is violated in the 2019 Act.
Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the 2019 Act violate their fundamental rights to life, liberty, privacy, autonomy and dignity guaranteed under Article 21, their right to equality under Article 14, and their right to gender identity and their fundamental freedoms under Article 19 of the Constitution of India, 1950. The provisions of Section 4 of the 2019 Act mandating that a transgender person shall have a right to be recognized as such, is limiting their rights and is unconstitutional, as it only provides for the right to recognition as a transgender person, and not as male or female which may be the self – determined gender identity of the transgender person. The requirements in Section 5 and Section 6 that identity cards would be issued based on documents as may be required, is unconstitutional as transgender persons cannot be subjected to any further documentary requirements, which may include documents relating to medical or psychological tests or reports. The provisions of Section 7 of the 2019 Act, which requires transgender persons to undergo medical surgery in order to identify with a gender of their choice, violate the right to bodily integrity, privacy and personal autonomy guaranteed to transgender persons as per the previous decisions of this Hon’ble Court as mentioned above.
Section 12(3), which compels a transgender person to either continue living with their birth family even if they face violence within the home or be placed in a rehabilitation centre upon the orders by a competent court, are violative of the rights of transgender persons under the right to life. It also does not make any distinction in treatment between minors and adult transgender persons and is an intrusive manner of regulating the choice of where individuals who may be adults can choose to live. Similarly, it does not allow the choice to live in any third alternative arrangement.
Section 18(a) of the 2019 Act makes it an offence to compel or entice a transgender person to indulge in the act of forced or bonded labor and which is punishable with imprisonment for a term which shall not be less than six months but which may extend to two years with fine. This provision has the potential to target and attack the alternative family structures developed by the transgender community. The provision is vague as it does not define what is meant by forced/bonded labor and when an act amounts to ‘indulging’ a transgender person in forced/bonded labour and it can, therefore, be applied against the interests of the transgender community in an arbitrary manner so as to violate the guarantee of equality under Article 14 of the Constitution of India, 1950.
Section 18(d) of the 2019 Act makes it an offence to harm or injure or endanger the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse, and which is punishable with imprisonment for a term which shall not be less than six months but which may extend to two years with fine. It is submitted that this provision violates Article 14’s guarantee of equality as the maximum penalty for sexual abuse committed against transgender persons is capped at two years’ imprisonment, whereas, for similar offences committed against women under the Indian Penal Code, 1860 ranges between three years to life imprisonment. Transgender persons are not covered by the sexual offences against women made punishable under the Indian Penal Code, 1860, which are gender-specific provisions where the perpetrator of the offence is a male and the victim is a female. Thus, the distinction in punishment for sexual abuse when committed against transgender persons in contrast to cis women is arbitrary and violative of Article 14 of the Constitution of India, 1950, which mandates equality before the law and equal protection of laws.
The Petitioners also submit that the Hon’ble Court in NALSA vs. Union of India recognised the right of transgender persons under Articles 15(4) and 16(4) to access reservations in public education and public employment to ensure that there is representation from the transgender community and that they are able to participate in mainstream society. This Hon’ble Court accordingly directed the Centre and the State Governments to treat transgender persons as socially and educationally backward classes of citizens and to provide them with reservations in educational institutions and public employment. However, the 2019 Act is silent on this aspect and fails to adhere to the guidelines issued by this Hon’ble court.
The reliefs sought for in this PIL are:
- To declare Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 as ultra vires Part III of the Constitution of India, 1950, as violative of Articles 14, 15, 16, 19 and 21 of the Constitution of India; and,
- To direct Respondents to implement the directions of this Hon’ble Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 to provide reservations to transgender persons in public employment and education as socially and educationally backward classes of citizens
The matter is listed before a bench comprising of the Hon’ble Chief Justice SA Bobde along with the Hon’ble Justices AS Bopanna and Hrishikesh Roy. The Hon’ble court has heard the counsel, Sr. Adv. Jayna Kothari, and have ordered for issuance of notice to the Respondents.