On 17 February 2020, five transgender activists filed a petition in the Supreme Court challenging the Transgender Persons (Protection of Rights) Act, 2019. In particular, the petitioners contend that Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Act stand in conflict with Part III of the Constitution of India, 1950 and the judgment in National Legal Services Authority v. Union of India.
The petitioners are Grace Banu Ganesan, Vyjayanti Vasanta Mogli, KMV Monalisa, Anindya Hajra and Sirra Santosh.
They pray for the Court to strike down the aforementioned sections for violating the fundamental rights guaranteed under Articles 14, 15, 16, 19 and 21 of the Constitution. In addition, they request the Court to issue a writ of mandamus that directs the State to provide reservations to transgender persons in education and public employment, as directed in National Legal Services Authority (NALSA).
The petition relies heavily on the landmark judgment in NALSA, where the Supreme Court recognised the fundamental rights of transgender and other non-gender-binary persons. Notably, this includes the right to self-identify one’s gender as female, male or transgender.
Further, the petition mirrors NALSA in that it relies on the Yogyakarta Principles. Adopted in 2007, the Principles apply International Human Rights Law to sexual orientation and gender identity, to deduce the rights to self-determination, dignity and freedom.
Other notable legal precedents cited by the petition include Puttaswamy and Navtej Singh Johar. In Puttaswamy, the Indian Supreme Court declared privacy as a ‘constitutionally protected right under the guarantee of life and personnel liberty in Article 21 of the Indian Constitution.’ In Navtej Johar, the Court reinforced that persons cannot be discriminated against on the basis of their sexual orientation or gender identity.
The petitioners say that the Act falls short of fully recognising the right to self-identify one’s gender. As aforementioned, NALSA established this as a fundamental right flowing from the rights to free expression, dignity and autonomy under Articles 19(1)(a) and 21 of the Constitution.
They challenge Sections 4, 5 and 6 of the Act on the ground that they restricts this right to self-identify gender. Sections 4, 5 and 6 only recognise and lay out the procedure for being identified as a transgender person. They do not allow individuals to transition to a male or female identity. Therefore, the petitioners assert that these provisions fall short of NALSA.
In addition, the petitioners challenge Sections 5, 6 and 7 for making self-identification contingent on medical procedure and documentation. They submit that the right to self-identify is absolute. By requiring persons to undergo medical surgery and provide documentation, the Act infringes upon the rights to bodily integrity, autonomy and privacy, the petitioners contend.
Another central fault with the Act, according to the petitioners, is it is blind to the alternative family structures developed by the transgender community.
Section 12 of the Act compels transgender persons to either live with their birth family or in rehabilitation centres, failing to distinguish between children and adults. Further, Section 18(a) criminalises any act which ‘compels’ or ‘entices’ a transgender person into forced labour.
The petitioners asserts that Sections 12 and 18(a), read together, empower the State to ‘target’ and ‘attack’ the non-traditional families many transgender persons live in.
Finally, the petitioners assert that Section 18(d) of the Act violates the fundamental right to equality. Section 18(d) criminalises sexual abuse against transgender persons with a maximum penalty of 2 years imprisonment. By contrast, the Indian Penal Code, 1860 sets the penalty for sexual abuse against women at 3 years to life imprisonment.
The petitioners contend that Section 18(d), and the distinction on the basis of gender it implies, is entirely arbitrary. Therefore, it fails the test of reasonable classification and violates Article 14 of the Constitution, they assert.
As aforementioned, in NALSA, the Supreme Court recognised that the transgender community lacked representation in mainstream society. It held that the State should treat the community as a ‘socially and educationally backward class of citizens’ and entitle transgender persons to reservations. In particular, it directed Centre and State Governments to provide transgender persons with reservations in education and public employment.
The 2019 Act is completely silent on the question of reservations. According to the petitioners, this constitutes a failing of Parliament to put into effect the Supreme Court’s ruling in NALSA. They hope that the Supreme Court will now once again intervene and direct the State to ensure reservations for transgender persons as ‘socially and educationally backward classes of citizens’.