Gender change

Gender change

Gender Change: on the way/path of legal recognition Transgender (TG) is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. TG may also takes in persons who do not identify with their sex assigned at birth. Through landmark NALSA Judgement in 2014, Transgender persons’ right to decide their self-identified gender was upheld and the Centre and State Governments was directed to grant legal recognition of their gender identity such as male, female or as third gender. But, unfortunately even after five (5) years of the NALSA Judgment we have no legislation in this country dealing with the rights of transgender community Gender identification becomes very essential in the wake of problems being faced by the Transgenders. Non-recognition of identity is resulting into discrimination in all spheres of society, especially in the field of employment, education, healthcare etc. They face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious problem they face quite often. The Court in NALSA judgement has said that, even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female. Even after the NALSA judgement, lot of problems are still being faced by the people with different sex identity in jobs and with local authorities as well, for change of name in their documents. Some say there is no category as “Transgender” as per their job policy but the NALSA Judgement has opened the door not only for Transgender but also for self-declared gender identity which is now possible without SRS (Sex reassignment Surgery). NALSA judgement is not being followed in true spirit in real life due to unwillingness on part of society as well as Government to accept Transgender and self-declared gender identity as part of the society. In an attempt to follow the directions of the Supreme Court, The Transgender Persons (protection of rights) bill 2016 was introduced and passed in Lok Sabha with 27 amendments on December 18 2018. Key highlights of the bill:  The bill provides for the definition of Transgender as a person who is (i) neither wholly female nor male; or (ii) a combination of female and male; or (iii) neither female nor male. In addition, the person’s gender must not match the gender assigned at birth. This will include trans-men, trans-women, persons with intersex variations and gender queers.  The Transgender person shall have the right to be recognised as self-perceived gender identity.  A transgender person shall have to obtain a Certificate of Identity  An application for obtaining such a Certificate should be made to the District Magistrate (DM). The DM will refer such an application to a District Screening Committee which will comprise of: (i) Chief Medical Officer; (ii) District Social Welfare Officer; (iii) psychologist or psychiatrist; (iv) representative of the transgender community; and (v) government officer.  The DM will issue a Certificate of Identity as ‘transgender’ based on the recommendation of this Committee.  The above Certificate of Identity shall be used for change of gender in official records. Key issues:  There are some loopholes in the bill as on one hand it gives the rights to choose a gender on the person and on the other hand provides for a screening process which a person shall have to undergo to get the certificate. Also the bill is silent on the criteria of judging/screening a person for self-perceived gender identity.  The bill does not provide for reconciliation of provisions of the bill with other statutes like IPC, Hindu Succession Act, in terms of penalties, right of inheritance etc.  The bill provides for inclusive definition of Transgender. The terms like trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers needs to be defined.  The bill does not provide any reservations or anti-discriminatory punitive measures for transgender persons  The bill also does not provide for enforcement of right to be recognised as Transgender. If the bill is passed by the parliament and become the law of the country, many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on. But the enjoyment of these rights depends not only the law being passed but the willingness on part of the people to treat the “Transgender” and “self-perceived gender identity”, equally and accept them as part of the society.


eStartIndia Team

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