Amnesty International India Submission of Suggestions and Objections to the Draft Transgender Persons (Protection of Rights) Rules, 2020

12 August 2020 10:42 am

The following submission was made on 12 August 2020 to the Joint Secretary to the Government of India, Ministry of Social Justice and Empowerment. We appreciate the role and commitment of the Ministry of Social Justice & Empowerment in enabling marginalized communities to achieve equality and equal participation in all spheres of life by securing their rights and entitlements. We hope that our recommendations will help the Ministry to strengthen its commitments to the needs of the transgender and intersex community.

Amnesty International India recognises that the Draft Transgender Persons (Protection of Rights) Rules 2020, made in accordance with Section 22 of Transgender Persons (Protection of Rights) Act, 2019 undermines the rights of transgender and intersex persons, primarily in the right to self-determination, among other provisions and violates India’s international human rights obligations and the ruling of the Supreme Court in the landmark NALSA judgement of 2014.

In 2014, the Supreme Court recognised transgender persons’ right to self-determination of their gender as male, female or the third gender. In the same judgement, the Court directed central and state governments to grant legal recognition to transgender persons, address social stigma and discrimination faced by them, and provide social welfare schemes. The Court also held that discrimination based on gender identity violates the fundamental rights to equality, freedom of expression, and right to life with dignity. The judgement made by the Supreme Court relies on the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ (“Yogyakarta Principles”) and recommended that it be applied as a part of Indian law.

Amnesty International India has provided recommendations below keeping in mind the need to align the rules with the Yogyakarta Principles as well as the ground realities of transgender and intersex persons.

Read our official submission here.

Rule 2: Definition of Discrimination

Amnesty International India welcomes the addition of definition of ‘discrimination’ in Rule 2(f) of the Draft Rules as “distinction, exclusion or restriction on the basis of gender identity and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation.”

Concern 1: The definition of discrimination mentions but does not describe ‘reasonable accommodation’. Central to the United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD) and the Rights of Persons with Disabilities Act, 2016, the principle of reasonable accommodation is defined as the ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’ by the Convention. However, it has not yet been incorporated in any state or central legislation so far in India in the context of the rights of transgender rights. This leaves unbridled space for interpretation by authorities.

Recommendation 1: It is necessary to include a definition of ‘reasonable accommodation’ in the context of the range of violations faced by transgender and intersex persons.

Concern 2: Amnesty International India appreciates the near-total alignment of the definition of ‘discrimination’ under the Draft Rules with Principle 2 of the Yogyakarta Principles. The definition, however, still does not take into consideration the range of human rights violations faced by the transgender persons above and beyond their gender identity. Intersection of factors such as caste, age, religion, disability, health and economic status with the gender identity aggravates the discrimination faced by transgender persons.

Recommendation 2: It is prudent therefore to include “Discrimination based on gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status” in the definition of discrimination.

Concern 3: The discrimination that transgender and intersex persons face may be based on a perception of gender identity and/or expression. When transgender persons are perceived to depart from the conventional gender norms that may include behaviour, characteristics and forms of dress, they face discrimination and prejudice, often fuelling violence.  Therefore, the discrimination that individuals face may be based on a perception of gender identity and/or expression. This has also been acknowledged by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity and the World Health Organisation.

Recommendation 3: The definition of ‘discrimination’ must qualify the gender identity with ‘actual or perceived’, i.e., “discrimination means and distinction, exclusion or restriction on the basis of actual or perceived gender identity (…).”

Concern 4: The Act does not explicitly recognize the rights of transgender persons to found a family and to inheritance. In NALSA v. Union of India, the Supreme Court of India noted that a binary notion of gender was reflected in existing Indian laws related to marriage, adoption, inheritance and succession, among others. The Yogyakarta Principles also stipulate that states should take steps to ensure the right of transgender persons to found a family, including through access to adoption, and equal inheritance rights.

Recommendation 4: The Act and Rules should ensure that transgender person are able to enjoy equal marriage, parenting, partnership and custody rights as others, and ensure their right to found a family, including through access to adoption without discrimination. It must also explicitly recognize transgender persons’ inheritance rights.

Rule 3: Application for issue of certificate of identity under Section 6 and 7

Rule 3 of the Draft Rules provides the procedure for applying for a certificate of identity as mentioned in Section 6 and 7 of the Transgender Persons (Protection of Rights) Act, 2019.

Concern 5:  The fundamental problem with Rule 3, in exercising provisions for Section 6 and 7 of the Act is that it requires a person to first identify as transgender and subsequently apply for change in gender once medical intervention has been taken. These processes laid down as per the 2019 Act and the Draft Rules hinder an individual’s right to self-determination.

Rule 3 of Draft Rules and Section 6 and 7 of the Act inherently go against the right to self-determination of gender identity. As per Principle 3 of the Yogyakarta Principles, states shall “take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity.”

The Supreme Court has also clarified that transgender persons have a right to decide their self-identified gender. In NALSA v. Union of India, the Court ruled that self-determination of gender flowed from the rights to freedom of expression and personal liberty under Articles 19 and 21 of the Constitution of India. It ruled: “We, therefore, declare that…transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

Any procedure for ‘identification of transgender persons’ which goes beyond self-identification would violate transgender persons’ rights under Article 19 and 21 of the Constitution.

Consequently, without the absolute ability to align with one’s gender identity, full enjoyment of all other human rights is hampered for transgender and intersex people.

Recommendation 5: In consonance with the judgement in NALSA v Union of India, the certificate of identity should allow for self-determination of individuals as male, female or transgender.

Concern 6: Rule 3 (3) provides that transgender persons who have officially changed their gender prior to the Act coming into force shall not be required to submit an application for certificate of identity under these rules. As per Section 6 (3) of the Act the certificate of identity ‘shall confer rights and be a proof of recognition of [their] identity as a transgender person’.

Recommendation 6: The Rules must give clarity on the measures in place to ensure that they can avail all rights and entitlements conferred under the Act, in situations when certain persons do not apply for the certificate of identity.

Rule 4: Procedure for issue of certificate of identity under Section 6

Rule 4 (1) provides for District Magistrate to process application for certificate of identity subject to “correctness”.

Concern 7: The Draft Rules are unclear on the standards on the basis which the District Magistrate shall understand the “correctness” of the application.

Recommendation 7: In the interest of clarity, the term “correctness” must be elucidated with the necessary requirements.

Concern 8: Rule 4 (2) provides for the purpose of determination of place of residence in order to make an application for the certificate of identity. The Rule states that the individual shall be considered a resident of the area under the jurisdiction of the District Magistrate if they have lived in that area for a continuous period of 12 months as on the date of the application. This particular provision ignores the lived realities of many transgender persons and intersex persons who face several forms of discrimination in finding permanent residence and often need to change their residence. Principle 3 of the Yogyakarta Principles requires that all necessary measures are taken to fully respect and recognise each person’s self-defined gender identity.

Recommendation 8: The criteria for residence at a place for continued 12 months as evidence for proof of residence must be omitted.

Rule 5: Issue of certificate of identity for a transgender person under Section 6

Rule 5(5) and Rule 7(5) provide that the issuing of the said certificate of identity and the transgender identity card shall be included by the appropriate governments in their records for the purposes of “public service”.

Concern 9: These rules stand to violate the right to privacy of individuals. Principle 6 of the Yogyakarta Principles mention that states should ensure the rights of all persons to choose when, to whom and how to disclose information pertaining to their gender identity. It also provides that the State should also ensure that all persons are protected from arbitrary or unwanted disclosures and even the threat of disclosure of such information.

Rule 5(5) and 7(5) provide allows for information regarding the gender identity of a person to be disclosed without their informed consent for a vague and overbroad purpose.

Recommendation 9: It is important to provide clarity on the term ‘purposes of public service’ under both Rule 5(5) and Rule 7(5).

Rule 11: Provisions for non-discrimination

Concern 10: Amnesty International India submits that Section 18 of Act, and Rule 11(4) and (5) of the Draft Rules, do not fully recognize the range of violations that transgender persons face.

The Indian Penal Code was amended in 2013 to expand the definition of rape and recognize a broader range of offences against women, including acid attacks, voyeurism, stalking, sexual harassment and disrobing. Transgender persons often face similar abuses.

Section 18 of Act states that any offence (as defined in the section) against transgender persons is punishable with a term of imprisonment of not more than two years. Similar crimes as enumerated in Section 18 hold higher sentences under the Indian Penal Code (IPC).

Principle 5 of the Yogyakarta Principles mentions that states should impose appropriate criminal penalties for violence, threats of violence, incitement of violence and harassment based on gender identity; and take necessary measures to ensure that gender identity of the victim is not used to justify, excuse or mitigate such violence. In addition, states should ensure that victims are provided with appropriate remedies and redress.

Recommendation 10: Rule 11 and corresponding Section 18 of Act be amended to comply with the Indian Penal Code and other special law provisions on offences already in force. Furthermore, it is recommended that detailed provisions be added to the rules regarding remedy, redress and compensation for transgender and intersex persons who have faced violence.

Rule 12: Equal opportunities in employment

Rule 12 provides for equal opportunities in employment for transgender persons in all establishments.

Concern 11: While this is essential and a welcome provision, the rule should further lay down provisions for reservation in establishments. Affirmative action in the form of reservation in employment has been provided to other marginalized groups such as persons with disabilities and those belonging to Scheduled Castes and Tribes. Under international human rights law, states are obligated to adopt affirmative action policies towards diminishing or eliminating conditions that perpetuate discrimination.

Yogyakarta Principle 12 establishes that States should eliminate discrimination in employment opportunities on the basis of gender identity. It also states that equal employment and advancement opportunities are provided in all levels of government service and public functions.

Recommendation 11:  Reservation in government employment opportunities must be provided to transgender and intersex persons.

Rule 13: Grievance Redressal

Rule 13(1) provides for appropriate governments to ensure that every establishment shall designate a complaint officer.

Concern 12: The Rules do not make any provision for and distinction between establishments with less and large number or employees, those with branch offices and informal establishments. It also lays the responsibility of handling grievances of transgender and intersex persons of an entire establishment in the hands of one complaint officer. It does not specify the qualifications of the complaint officer.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, for instance, requires the establishment of local complaints committees in all districts, and internal complaints committees in all workplaces with ten or more employees. Furthermore, grievance redressal mechanisms as put forth in the Rights of Persons with Disabilities Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are far more detailed which ensures better accountability and functioning of these mechanisms. Principle 28 of Yogyakarta Principles asks that States ensure that effective institutions and standards are established for remedies and redress, and that all personnel are trained in issues of human rights violations based on gender identity.

Recommendation 12: It is important to expand the grievance redressal mechanism on the lines of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, as well as Rights of Persons with Disabilities Act, 2016 and the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989, to address concerns in both formal and informal establishments and ensure that persons mandated with grievance redressal responsibility are trained in issues of human rights violations based on sexual orientation and gender identity.

Concern 13: Rule 13 does not elaborate the procedure for complaints or appeal of cases, contravening the due process standards as guaranteed by the international human rights law and the Constitution of India.

Recommendation 13: It is important to amend Rule 13 and expand its scope to provide for appeals.

Concern 14: Rule 13 (4) discusses the proper implementation of provisions of Chapter V of the Act with special reference to Section 12 (1) and (2), which provides for the right to residence. The right of residence as discussed under Section 12 of the Act does not make provisions for guardianship of a child with a person from the transgender/intersex community. It also does not take into account the choice of the transgender child.

This overlooks the lived realities of many transgender/intersex children who are persecuted by their families and are often forced to run away from their homes. The community provides such children with the care and protection that they need. In certain cases, this option is in the ‘best interest of the child’ as affirmed by Article 3 of the United Nations Convention on the Rights of Child, to which India is a state party; as well as Principle 24 of Yogyakarta Principles which states that all actions and decisions concerning children should respect and give due weightage to the personal views of the child if they are capable of forming personal views and can express those views freely. For example, recently in Kerala, the Child Welfare Committee (CWC) in Malappuram district entrusted the custody of a transgender child to a transgender social worker.

Recommendation 14: This provision (both in the Act and Draft Rules) must be amended to include an evaluation by the CWC with respect to guardianship of transgender children. The provision (both in Act and Rules) needs to be expanded to include the right of transgender persons to choose where and with whom to live.

Rule 14: National Council

Concern 15: Rule 14 (1) provides that the National Council shall be responsible for coordination with the “National Council” on matters of monitoring, review and evaluation of transgender welfare and protection of rights at the state and local levels.

The corresponding Act, under Section 16 provides in detail the composition of National Council. Section 16(h) provides that five persons of the transgender community must be part of the National Council.

Recommendation 15: The rules must ensure equal representation of all members of the transgender and intersex community when choosing the members from the community for the National Council, which includes equitable representation of transwomen, transmen and intersex individuals.

Concern 16: The Act under Chapter VII, Sections 16 and 17, provides for constituting a National Council for Transgender Persons which will coordinate on matters of monitoring, review and evaluation of transgender welfare and protection of rights at the state and local levels. It is not clear how this coordination will occur and who will be responsible at the state or local level. The Rules further do not expand on the constitution of State Councils. Establishment of state councils will ensure that the National Council is not overburdened and will also ensure better coordination of transgender and intersex welfare at the state and local levels.

Rule 11(5) provides for a state-level Transgender Protection Cell under the charge of the District Magistrate and Director General of Police. However, this pertains to offences against transgender persons only.

Recommendation 16: Such councils must be established in all states and Union Territories.

Immunity from prosecution

Concern 17: Section 22 of the Act provides immunity from legal proceedings to government officials “in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.” Immunity provisions under other Indian laws have contributed to impunity for authorities suspected of committing human rights violations. In doing so, they have violated the rights of victims to an effective remedy. There is a risk that the immunity provision in the Act will also similarly provide impunity to authorities who violate its provisions.

Recommendation 17: The Act and Draft Rules must be amended to provide for exceptions for granting immunity to ensure accountability of government officials under this Act and Rules.