Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
Additional Reading Material
- ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
- ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Sep 17, 2018 | Advocacy, Non-legal submissions
Today at the UN Human Rights Council, the ICJ emphasised the importance of effective investigations capable of leading to truth and justice, highlighting recent developments in Manipur, India as an example.
The statement read as follows:
“Justice processes in situations of conflict or transition require fighting impunity and re-establishing public trust.[1] An example is the new prospects for justice in relation to 1528 alleged extrajudicial killings cases in Manipur, India, which would make an important contribution to a transition out of the long-standing conflict.
In July 2016, in response to a petition filed on behalf of the victims, the Indian Supreme Court stated that “there is no concept of absolute immunity from trial…”,[2] opening the door to ending impunity. As of August 2018, the Central Bureau of Investigation has registered 29 complaints against security forces.[3] Recent reports suggest that the Government is also considering amending the Armed Forces Special Powers Act (AFSPA) to remove or restrict existing overbroad authorizations for use of lethal force.[4]
These are welcome developments. However, concerns remain, as the investigation status of the majority of the cases is unknown. Two UN Special Rapporteurs in July 2018 also affirmed that justice must be done in all cases.[5]
The ICJ calls on India to ensure independent, impartial and thorough investigations into all cases in Manipur, amend AFSPA, and to uphold the right to truth of victims and society about acts committed and the identity of perpetrators, in line with its international and national legal obligations, including as a party to the International Covenant on Civil and Political Rights.”
[1] Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/39/53 (25 July, 2018), http://www.undocs.org/A/HRC/39/53.
[2] Para 163, Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. v. Union of India & Anr. Writ Petition (Criminal) No. 129/2012.
[3] TNN, “Army Major named in FIR for killing 12-yr-old in fake Manipur encounter”, Times of India, August 3, 2018, https://timesofindia.indiatimes.com/city/imphal/army-major-named-in-fir-for-killing-12-yr-old-in-fake-manipur-encounter/articleshow/65252258.cms.
[4] “In AFSPA, Government Considering Crucial Changes”, NDTV, September 13, 2018, available at https://www.ndtv.com/india-news/in-afspa-government-considering-crucial-change-sources-1915706.
[5] Special Rapporteur on extrajudicial, summary or arbitrary executions and Special Rapporteur on the situation of human rights defenders, “India: UN experts call for urgent progress in investigation of hundreds of ‘fake encounter’ killings” (4 July 2018), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23323&LangID=E .
Sep 6, 2018 | News
The ICJ welcomed the Supreme Court’s judgment in Navtej Singh Johar et al v. Union of India and others, which effectively ends the threat to a large segment of the Indian population that they will be held criminally liable for exercising their human rights.
The Court has issued a long-overdue ruling that the criminalization of consensual same-sex relationships under Section 377 violates the Indian Constitution, and is in breach of India’s obligations under international law. This long-awaited judgment testifies to the work of activists and lawyers in India, who have shown the potential of the law to affirm human rights and equality.
“This judgment will not only have an impact in India. Its influence should extend across the world. The ICJ hopes that it will provide an impetus for other countries, especially those of the Commonwealth of Nations, to revoke similar provisions that criminalize consensual sexual relations,” ICJ Asia Pacific Director Frederick Rawski stated.
The Court underscored that provisions of Section 377 contravened international law and standards on equality, privacy, non-discrimination and dignity guaranteed in international human rights treaties to which India is a party. These include the International Covenant Civil and Political Rights and International Covenant on Economic Social and Cultural Rights.
The Court also noted that the Yogyakarta Principles, which address sexual orientation and gender identity in international law, reinforce these protections. This is a vital jurisprudential recognition that LGBTI persons are entitled to full equality, and protection of their rights under India’s Constitutional and international human rights law.
In the judgement, which reverses the December 2013 Koushal decision, the Court held that discrimination based on sexual orientation is a violation of fundamental rights to autonomy, privacy, equality, dignity, and non-discrimination. It underscored that decriminalization of homosexuality is only the first step and that LGBTI persons are entitled to equal citizenship in all its manifestations. The Court also recommended that wide publicity be given to judgment to ensure de-stigmatization of identity through sensitization training on barriers to access to justice faced by LGBTI persons.
“Even a landmark decision by the Indian Supreme Court cannot alone end the discrimination against people based on their sexual orientation or gender identity. It is time for the Indian Parliament to conduct wide-ranging review of existing legal framework, repeal discriminatory laws, and address other gaps in the law that prevent LGBT persons from fully exercising their rights,” Rawski added.
Background
For background, see the ICJ’s July 2018 Briefing Paper on Navtej Singh Johar et al. v. Union of India and Others, and its February 2017 report, “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Jul 10, 2018 | News
The SC is set to reconsider the criminalization of consensual same-sex relationships between adults, in response to a writ petition with significant ramifications for addressing the full range of human rights violations based on sexual orientation or gender identity in India said the ICJ.
The Indian Supreme Court commenced hearing the case, Navtej Singh Johar v. Union of India, which is joined with five connected cases, today, concerning the constitutional validity of the criminalization of consensual same-sex relations between adults under Section 377 of the Indian Penal Code in response to writ petitions filed by several LGBTI individuals.
Section 377 criminalizes “carnal intercourse against the order of nature”. Section 377 is a relic of the British colonial penal code and is replicated in several former British colonies even though it was it was finally repealed in Northern Ireland in 1982, following repeals in Scotland in 1980 and England and Wales in 1967.
“Hopefully, the Indian Supreme Court will follow and build upon the strong precedent set by the Delhi High Court in the Naz Foundation v. Govt. of NCT of Delhi that declared Section 377 and the criminalization of consensual same-sex relationships to be in violation of the Indian Constitution as well as international law in 2009,” said Sam Zarifi, ICJ’s Secretary General.
“There are real grounds for optimism as the Indian Supreme court as recently as August 2017 handed a landmark judgment in Justice K.S. Puttaswamy and Another v. Union of India and Others that declared the right to determine one’s sexual orientation and gender identity as core to the right of privacy,” he added
The ICJ has documented how section 377 has created a climate in which arbitrary arrest, extortion, harassment and blackmail of LGBTI persons in India thrives.
“The Indian judiciary’s decision to read down section 377 in Naz Foundation v. Govt. of NCT of Delhi, which was then overruled by the Supreme Court, has been used by several other jurisdictions, such as Trinidad and Tobago as support for putting an end to criminalization of same-sex relationships. So the outcome of this petition before the Indian Supreme Court is of significance not just to people in India, but to the fight against discrimination around the world,” Zarifi said.
“But even a good decision by the Indian Supreme Court will not end the discrimination against people on the basis of their sexual orientation or gender identity in India. It’s time for the Indian Parliament to repeal section 377 in its entirety and engage in a wide-ranging review to consider which gaps, if any, need to be filled, for example with respect to acts constituting rape or other sexual offences,” he added.
Contact:
Maitreyi Gupta (Delhi), International Legal Adviser for India, t: +91 7756028369 ; e: maitreyi.gupta(a)icj.org
India-Supreme Court and Section377-News-press release-2018-ENG (full story with additional information, in PDF)
May 17, 2018 | Feature articles, News
South Asian States must repeal laws that discriminate against LGBTI persons, and must respect, protect and fulfill the full range of their human rights, the ICJ said today on International Day Against Homophobia and Transphobia (IDAHO-T).
These rights include the right to equality before the law and equal protection of the law for all without discrimination, to which LGBTI persons are entitled due to their inherent dignity as human beings.
Across South Asia, discriminatory laws have enabled socially constructed gender and sexual norms to foster and perpetuate intimidation, harassment, threats of violence and violence against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, due to animosity, hostility and hatred motivated in whole or in part by their actual or perceived sexual orientation, gender identity, gender expression and/or intersex status.
Under international law, including the International Bill of Rights, that is the Universal Declaration of Human Rights and the two Covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – discrimination on the grounds of sexual orientation and/or gender identity is prohibited.
In this context, the Office of the UN High Commissioner of the Human Rights has underscored five core international human rights law obligations for States: (1) protecting individuals from homophobic and trans-phobic violence; (2) preventing torture and cruel, inhuman, and degrading treatment of LGBTI persons; (3) decriminalizing homosexuality; (4) prohibiting discrimination based on sexual orientation and gender identity; and (5) respecting the freedom of expression, association and peaceful assembly of LGBTI persons.
Under international human rights law, the principle of non-discrimination includes the right to determine one’s sexuality, sexual orientation, and gender identity and gender expression.
Contrary to their international human rights law obligations in this respect, States’ policing of gender and sexuality has created a pattern of stigma, harassment and violence.
For example, consensual same-sex sexual relations remain criminalized in seven out of eight countries in South Asia – Afghanistan, Bangladesh, Bhutan, India, Maldives, Pakistan, and Sri Lanka – based on colonial era laws, such as S. 377 of the Penal Codes of Pakistan, India, Maldives and Bangladesh, and similar legal provisions in Sri Lanka and Bhutan, that criminalize “carnal intercourse against the order of nature”.
While the enforcement of these laws rarely lead to actual criminal convictions and sentences of imprisonment, their mere continued existence creates an ominous and ongoing threat against and criminalizes entire sectors of the populations in these countries.
This, in turn, gives rise to a climate that encourages and is ripe for extortion, harassment and blackmail of LGBTI persons, by the police, as well as non-State actors, including the general public and even their own families.
While there have been some progressive developments, discrimination, violence and other human rights abuses against LGBTI people – both at the hands of State and non-State actors – remain rampant in South Asia.
Hence, on IDAHO-T, the ICJ renews its call on all South Asian Governments to repeal discriminatory laws against LGBTI persons, including laws that criminalize consensual same-sex sexual relations.
In addition, the organization urges all South Asian Governments to enable transgender persons’ right to self-identification of their gender, and to enact legislation that establishes prior, free, full, informed, genuine and consistent consent for any medically unnecessary interventions on intersex persons.
Contact
Maitreyi Gupta, ICJ International Legal Adviser in India, t: +91 7756028369; e: maitreyi.gupta@icj.org
Full text in ENG (PDF): India-IDAHO-T call-News-Feature article-2018-ENG
