Trans Rights: SC Issues Notice On Plea To Protect Trans Folks From Sexual Crimes

Written by: Sheena Verma

On October 12, the Supreme Court issued a notice to the Centre regarding a petition filed in the Court seeking equal protection for the transgender community against sexual crimes. The petitioner submitted that the Indian Penal Code, 1860 (hereinafter, ‘IPC’) has no provisions that deal specifically with the rights of trans people.

The petitioner has challenged the validity of Section 354A of the IPC on the basis of it being ultra vires (inconsistent with the powers provided by the Constitution) Article 14, 15, and 21 of the Indian Constitution. It was further submitted that the State is discriminating against transsexuals and eunuchs on the basis of their gender and therefore, provisions of the IPC must be appropriately modified or interpreted to include the transgender community. The claim was substantiated by stating that Article 14 and 15 guarantee rights to ‘persons’, which is inclusive of all the genders.

The Hon’ble Supreme Court, in NALSA v. UoI, [1] had recognized transgender as the third gender, thereby falling under the ambit of ‘person’. The plea also relied on Article 21, stating that ‘right to life’ includes ‘right to live with dignity’, and unless transgenders are given protection against sexual violence and hate crimes, they could not live life with dignity. Apart from this, the petition also sought directions to make gender-neutral sexual harassment mechanisms and passing of an anti-discrimination Bill that regulates harassment on the basis of gender until an appropriate legislation is put in place.

What The Transgender Persons (Protection of Rights) Act, Set Out To Fix

Trans folks have been subjected to exclusion and violence because of their gender for decades. A study by the National Institute of Epidemiology revealed that in most harassment cases against trans folks, the perpetrator is a police officer. The continued institutionalization of deep-rooted transphobia even after the NALSA judgment is a major setback for India in terms of protecting the rights of the trans community.

Khushi, a trans woman, was arrested, beaten up and raped in a police station in Rajasthan. “India sees a furore every time there’s a rape case, but not for me – I wasn’t born a woman”, said Khushi in an interview to The Wire.

A 2010 UNDP report on the human rights of trans folks in India showed how the trans community is forced to live a life of social and political exclusion. The report came up with several recommendations for the government to ensure a better standard of living for the community, including legal recognition and forming adequate policies to eliminate discrimination. [2]

Criticism Against The TPPR Act

Before the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter, ‘Act’), the government took no prominent steps to legislate on such an important issue. However, the Supreme Court did deliver a landmark judgment in NALSA, giving legal recognition to transgenders. Ungender shared a three-part analysis of the judgment by Advocate Megha Chandra. To read the first part, click on the link below.

To legislate on the lines of the judgment, the Transgender Persons (Protection of Rights) Bill, 2016 (hereinafter, ‘Bill’) was introduced. Since its introduction, the Bill has been severely criticized by trans rights activists and allies for being “regressive” and “half-hearted”. Trans activist Gee Imaan Semmalar said,“The Bill goes against the right to dignity and bodily autonomy of trans people.”

One of the main points of criticism was that the Bill mandated the procurement of a certificate of identity in order to avail the benefits of welfare schemes related to healthcare, education, and insurance. This provision is inconsistent with the ruling of the Supreme Court in NALSA, that gives the trans community the right to self-identify without undergoing a Sex Reassignment Surgery or obtaining a certificate. Despite countless protests against the Bill, it was passed by the Parliament on November 26, 2019. The new draft, however, has done away with the requirement.

What Does The TPPR Act Do

The Act focuses on eliminating discrimination faced by the trans community in their social as well as work environment. It expressly prohibits ‘establishments’ from indulging in any kind of discriminatory behavior against a trans person in matters related to recruitment, promotion or the like. It includes within its ambit any company or body corporate or firm, cooperative, trust, institution or agency.

The Act makes it mandatory for the establishments to provide appropriate facilities for their trans employees and to assign a complaint officer to deal with complaints thereof. While this is a positive step on the government’s part, any real change will only happen when companies proactively comply with the law.

As of now, the state of the trans community in terms of employment is deplorable.

A study conducted by the Kerala Development Society on behalf of the National Human Rights Commission (NHRC) revealed that 96% of all trans folks are forced into begging and sex-work, with even the qualified ones being turned down. [3]

In the absence of a specific legislation dealing with the rights of trans folks, in case of sexual harassment, at the workplace, it is important that the judiciary interpret the existing laws more liberally to the benefit of the trans community.

What’s The Way Forward?

The Supreme Court via its judgment in Vishakha v. State of Rajasthan [4] issued guidelines regulating sexual harassment of women at the workplace. These guidelines were upheld as binding law because there was a lack of a specific legislation that dealt with that issue. These guidelines later formed the basis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that now protects working women all over the country.

The US Supreme Court recently delivered a landmark judgment in a matter dealing with employment rights of the LGBTQ+ community. It interpreted the Civil Rights Act of 1964, which prohibits discrimination, to include discrimination based on sexual orientation and gender identity. It upheld that “An employer who fires an individual merely for being gay or transgender defies the law”.

The same approach may be considered by the Indian judiciary to ensure that workplaces are more fair and inclusive in their treatment towards the trans community. Achieving financial security can further enable the inclusion of trans folks. The abovementioned petition regarding protection of transgenders against sexual crimes could be seen as an opportunity to follow this approach and interpret the provisions of the IPC accordingly.

About the author: Sheena Verma is a third-year student at National Law School, Punjab with an interest in gender laws and competition law.

References:

[1] National Legal Services Authority v. Union of India (SCC 2014 5 SC 438).
[2] United Nations Development Programme, Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion, (2010).
[3] Commonwealth Forum of National Human Rights Institution, Study on Human Rights as a Third Gender, (2018), available at https://cfnhri.org/updates/study-on-human-rights-as-a-third-gender/
[4]  Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932 : AIR 1997 SC 3011.

How Can Ungender Help  

1) We can help your company comply with the Transgender Persons (Protection of Rights) Act, 2019.
2) Our handbook on the Act can help you get up to speed! You can find a preview to the handbook, here.

If you’d like to know more, schedule a 15-minute consultation on your company’s compliance needs, HERE.

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.