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Legal Rights of Transgender

Provisions of IPC for Transgender:-

Section 8 and 10 of the IPC contain the definition of Gender and Man & Woman, respectively. 

Section 8:-The pronoun “he” and its derivatives are used of any person, whether male or female. 

Section 10:- The word “man” denotes a male human being of any age; the word “woman” denotes a female human being of any age[1].

The wordings of sections 8 and 10 clarifies the picture that, the “he” pronoun applies only to the male or female, and nothing specifically mentions relating to the transgender in respect of Section 8; whereas in Section 10, the words ‘Men’ and ‘Women’ means the only male and female human being respectively. It is the most significant section as concerned with the recognition of transgenders, as the recognition of the term ‘Third Gender’ in the NALSA Judgement by Apex Court is yet to be included in the IPC. 

In the NALSA Judgement, Justice K.S. Radhakrishnan and Justice A.K. Sikri interpreted Article 14 of the Constitution of India as ‘Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity[2].’ 

Article 14 provides equality before the law and equal protection of law to any person within the territory of India. Thus, according to the above interpretation, a transgender fall within the expression of a person and is eligible to come under the ambit of the IPC. So, the legislators now have to recognize them in sections 8 and 10 of the IPC.

On 12th July 2019, The Criminal Laws (Amendment) Bill, 2019[3], was introduced in Rajya Sabha, inter alia, amending section 8 by inserting the word ‘Transgender’ along with ‘Male or Female’, resulting in the identification of the third gender as mentioned in NALSA Judgement, and section 10 with inserting the word ‘others’; the word ‘others’ denotes human beings including but not limited to transgenders of any age. 

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The bill is waiting to get the nod of both houses, but when it gets, it would aid to diminish the percentage of offenses against transgenders. The IPC would apply to the transgender community at the moment when the bill becomes an enactment.

 Analysis and benefits of section 5, 6, and 7 of TPA, 2019:- 

TPA, 2019, is the first Indian enactment for the transgender community, which recognized them as a person in the eyes of law. As we know, the transgender community is highly neglected in India and therefore recognized in the eyes of law was their primary concern. Thus, the procedure for recognition is laid down in sections 5 and 6 of the act.

Sections 5 and 6 require the self-identification of transgender by giving an application along with some documents to District Magistrate. The certificate means to “confer rights and proof of recognition[4].” It would provide a transgender their own identity and, accordingly all the provisions mentioned in TPA, 2019, shall be applicable to them. 

An author has criticized Section 6 in her article; the Right to recognition is a basic human right that needs no certification. (International Covenant on Civil and Political Rights, 1966, Art. 16) If Bill’s true intent is to protect the rights of transgender persons, then there can be no requirement of certification. Putting transgender persons alone through such a process is a blatant violation of Art. 14 of the Constitution of India[5].

At the outset, it is indeed a violation of the Art. 14, but there were some instances where the complaints against the bogus transgender have recorded. On June 18, 2017, an incident occurred in Chandrapur, Maharashtra, where a group of transgenders captured and beaten up a sham Transgender, who was a male, while he was participating in a function as transgender. Another identical incident happened in Tamil Nadu in October 2017, where a male being a bogus transgender was roaming on streets and captured[6].  

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The above incidences are very shocking and condemning. By referring to these incidences; any person could claim for being a transgender without being tested and checked by appropriate medical authority and would hold the rights and benefits mentioned in TPA, 2019. Thus, the process under section 6 is of utmost significance for the recognition of a person as a Transgender.

Section 7:- This Section states if transgender wants to undergo surgery to change gender either to male or female, the procedure mentioned in Sec 6, shall be followed by Transgender to get a certificate of identification from the District Magistrate.

An author stated in her article, a transgender man wants to identify as a male and not as a transgender, he must necessarily undergo the painful, inaccessible, and prohibitively expensive series of surgeries. Insisting that transgenders undergo surgery to validly declare their gender is inhuman, immoral, and illegal. (National Legal Services Authority v Union of India and Ors., 2014, para. 129.5)[7]

The wordings of section 7 are ‘if a transgender person undergoes surgery to change gender either as a male or female.’ The ‘if’ stands for the choice of a person. Hence, it clears the dust that, the enactment is not forcing a transgender to undergo sex reassignment surgery, it is up to the transgender, whether he wants to be recognized as a male or female, or not?. Further, Supreme Court in the NALSA judgment identified that ‘If a person has changed his/her sex in tune with his/her gender characteristics and perception, which has become possible because of the advancement in medical science, and when that is permitted by medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS.’   

In the hypothetical situation, it could be extraordinary for Transgender to be recognized as male or female. It can aid him to live a life as a natural male or female human being; and he can enjoy all the rights and privileges which a man or woman enjoys in the quotidian. Hence, sections 5 & 6 and 7 of the act would aid Transgender to be get recognized and come into the ambit of IPC, respectively, as it issues the certificate, which specifies whether a Transgender is male or female. Right now, the IPC only recognized men and women in section 10.

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CONCLUSION:-

The transgender community is ostracised for many decades and for dragging them out of the mud of discrimination, ignorance, etc. legislators have passed TPA, 2019. The legislation has some pros and cons, thus it needs to amend as it seeks more clarification on education and health facilities of transgender. 

The issue of recognition of transgender in IPC has considered to some extent by introducing The Criminal Laws (Amendment) Bill, 2019. It contains significant changes and it compels society to give them recognition and acceptance as a person. 


[1] https://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860

[2]  https://indiankanoon.org/doc/193543132/

[3] http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf

[4] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590327

[5] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590327

[6] https://www.youtube.com/watch?v=Gzu434F166 M, https://www.youtube.com/ watch=MXp4_2VXDL4

[7]  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590327


Cite this article (The Bluebook 20th ed.)-

Adiba Naaz, Legal Rights of Transgender, Ex Gratia Law Journal, (November 27, 2020), https://exgratialawjournal.in/blawg/human-rights/legal-rights-of-transgender-by-adiba-naaz/.

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Author

Adiba Naaz
Student - Shri Ramswaroop Memorial University