New Delhi: On December 5, 2019, the Transgender Persons (Protection of Rights) Act came into force. The Act, which had been in the pipeline for four years, was passed over sustained protests and objections by the trans and intersex community.

Among other things, critiques focused upon its inadequate definitions, its reification—or attempt to change the abstract—of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

The Act was swiftly challenged before the Supreme Court by Assam’s first trans judge, Swati Bidhan Baruah. We examine the principal grounds of the challenge, broadly categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this [my itals] Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.”

Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. 

Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy -- decisions that brooked minimum interference from the State. Baruah’s petition argues that the certification process violates both rulings. It also violates the standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

The State may argue that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable as the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person—and if so—what is the scope of that discretion.

In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required at most is a self-attested affidavit; anything more onerous would violate the principle of self-determination and self-identification. However, the Act is silent on this, leaving any such determination to rules “as may be prescribed” (Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate who will then issue a “revised” certificate. As the petition points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first straightforward argument is that the Act imposes burdens of certification upon transgenders that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm” while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement).

The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person).”

As Albie Sachs, the former Constitutional judge of South Africa, pointed out once, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

The State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, the Act makes identity conditional upon identification, instead of the other way round as prescribed in NALSA. It should, therefore, be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provision prohibiting discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, and housing. However, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless--and, indeed, not a right at all.

This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain non-discriminatory ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties in order to achieve deterrence.

As the transgender community is already vulnerable to these forms of coercion and violence, it is outright discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing reservation schemes under Articles 15 and 16 of the Constitution. The government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words, once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations—then—are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them. And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing it under Article 16, then, is a necessary consequence.

While this argument appears to follow constitutional logic, the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point, as it appears to be.

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which, the petition argues, is insufficient to guarantee the right to health.

This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government and the extent to which it will be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations, such as the right to health.

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka and laid down guidelines to fill in the legislative vacuum.

One principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health) or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. While some of the challenges are straightforward, others are more subtle and nuanced and will require the Court to engage with some of the more progressive stands of its recent jurisprudence. Such an engagement, however, also presents an opportunity-- to cement and even build upon that progressive jurisprudence in the domain of social rights.

(Gautam Bhatia is Delhi-based lawyer and legal writer and a member of Article-14.com’s editorial board)