TRANSGENDER PEOPLE AND GENDER MARKER CHANGE

Allowing transgender people to legally change their gender marker on official identity documents is essential to respect their dignity and reduce the stigma and discrimination they face. However, around the world, transgender people are often legally prevented from doing so, or when it is possible, they must meet unclear, prohibitive, or restrictive requirements such as having to undergo a gender-reassignment procedure or being diagnosed with so-called “gender identity disorders”. As set out by several UN agencies, such requirements are in direct breach of transgender peoples’ rights, such as their right to bodily integrity and their right to be free from torture.

INDIA TRANSGENDER PERSONS REGULATIONS

To improve the situation of transgender people and afford them adequate legal recognition and protection, India recently passed the Transgender Persons (Protection of Rights) Act 2019 (2019 Act) along with the Transgender Persons (Protection of Rights) Rule 2020 (2020 Rule) which both entered into force in January 2020. This new legislation was originally considered as a welcomed development for India as it prohibits discrimination against transgender people, provides for various measures to protect them, and gives them the right to change their name on their birth certificate and other identity documents.

Since its entry into force, the 2019 Act has been used to reinforce transgender rights on multiple occasions. For instance, in the case of Hina Haneefa v State of Kerala, the Kerala High Court relied on the 2019 Act and ruled that the non-discriminatory provisions of this regulation not only protected individuals’ rights to be recognised as transgender, but also their right to a self-determined gender identity. The Court also asserted that the 2019 Act trumped any legislation in the state which would run against those rights.

CONSTITUTIONAL SHORTCOMINGS OF THE 2019 ACT AND NALSA V UNION OF INDIA

Despite its success in upholding transgender people’s rights in some instances, India’s 2019  Act still suffers from various shortcomings, and has therefore been highly criticised following its entry into force. The main reason behind this criticism lies in the fact that, under the 2019 Act, individuals merely have the possibility to self-identify as a transgender person, rather than as a male or female, and are still required to undergo a gender-reaffirming surgery to change their gender marker.

Accordingly, petitions have been filed before the Indian Supreme Court by members of the transgender community and transgender rights activists to challenge its constitutionality. These petitions claim that such requirements run against transgender people rights to bodily autonomy, integrity, and privacy. To present this action, petitioners relied on articles 15, 19, and 21 of the Indian Constitution, which protect inter alia individuals’ rights to equality before the law, non-discriminatory treatment on the basis of sex, freedom of speech, and the protection of life and personal freedom.

They also heavily relied on the 2014 NALSA v Union of India case, a landmark decision of the Indian Supreme Court which recognised for the first time transgender people’s rights to self-identity as male, female, or third gender, and which affirmed their equal enjoyment of the fundamental rights and freedoms enshrined in the Indian Constitution. Petitioners are therefore seeking the Supreme Court to declare several provisions of the 2019 Act in breach of the national Constitution.

THE WAY FORWARD

At this time, the petitions are still pending before the Indian Supreme Court. It therefore remains to be seen whether the constitutionality of the Act will be upheld, or whether the Court will decide to range in favour of the transgender community and transgender rights activists’ claims. Even though the 2019 Act constitutes an important milestone in the transgender community’s quest towards equal rights and freedoms, its major shortcomings will need to be addressed for it to become a strong legal tool protecting human rights and dignity, as well as a source of inspiration for other countries.

Alexandra is a Human Rights Law LLM graduate at the University of Edinburgh. Her research interests include gender equality, humanitarian law, and HIV-related discrimination. She hopes to pursue a career in advocacy and non-profit work to strengthen women and girls’ rights and amplify their voices.

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