The law provides that transgender people undergoing sex reassignment surgery can apply for a revised certificate of identity and identify as male or female.2 The draft rules specify how a person who has undergone surgery can apply for a revised certificate. This includes the provision of a medical certificate and an application form. However, the application form included in the draft rules for a revised certificate only allows the applicant to select “transgender” as the gender of their choice and not “male” or “female”. This is an editorial error, as the revised identity card issued on the basis of such a request indicates that the sex of the person is “male” or “female”. The Certificate of Identity application form requires the applicant to provide information such as level of education, the name of the school or college, who they live with, and their sources of income. It is not clear why such information is necessary for a person to be certified transgender. The proposed rules require that the report come from a psychologist at a public hospital. According to the National Human Rights Commission, in 2019, 898 psychologists worked in public and private hospitals, while the need for clinical psychologists amounted to 20,250. [4] Note that the number of people who identify as “other” rather than “male” or “female” is 4,87,803 (0.04% of the total population) according to the 2011 Census.
[5] It could be argued that the lack of psychologists in the country will make it difficult for transgender people to obtain psychological assessments when applying for certification. Social assistance measures for unspecified transgender people The law states that people have the right to perceive their own gender identity.2 This implies that a person`s gender identity cannot be determined by anyone but themselves. The certificate of identity acts as a recognition of a person`s self-perceived identity by the state. It is not clear why the proposed rules require a psychologist`s report as part of an application for a transgender identity certificate. Note that according to the procedure established by law, the district judge does not have to “assess” the sex of the person when issuing the certificate. Rather, its role is to issue a certificate to anyone who identifies as transgender. Since no assessment is required for the issuance of a certificate, it is not clear why a psychologist`s certificate is required in the application process. It should be noted that the Standing Committee on Social Justice and Empowerment (2016), which reviewed the bill when it was introduced in Parliament, concluded that the presence of health professionals on the committee determining a person`s certification as transgender increases the risk that the applicant`s gender identity will be assessed on a medical basis. biological or psychological. [3] In the Committee`s view, this would violate the right of transgender people to identify with their gender, as the Supreme Court did in National Legal Services Authority v. Union of India (2014).1 In 2014, the Supreme Court recognized the right of a transgender person to identify their gender as male, female or third gender.
[1] In addition, the Court ordered the central and state governments to grant legal recognition to transgender people, combat social stigma and discrimination, and provide them with social assistance systems. The law stipulates that social protection measures to protect the rights and interests of transgender people and facilitate their access to social systems may be prescribed in the rules.2 The draft rules stipulate that the competent government must: (i) review existing social protection systems to include transgender people, (ii) ensure that social protection systems, programmes and subordinate legislation do not discriminate against transgender persons, (iii) take reasonable steps to prohibit discrimination against transgender persons and (iv) educate transgender persons about the services available to them. These details are not currently included in the proposed Regulations. The draft rules do not specify the content of the psychologist`s report, which must be submitted when applying for a certificate of identity. If a person can identify as transgender in the affidavit of their application, it is not clear what additional information is included in the psychologist`s report. The draft rules stipulate that a district judge may issue a certificate of identity only to an applicant who has resided in the territory under his jurisdiction for a period of one year from the date of the application. It could be argued that this provision increases the burden on transgender people to apply for a certificate of identity. The proposed rules require an applicant to submit an affidavit with their application explaining their identity as a transgender person.
However, the proposed rules also provide for a penalty against individuals who request proof of identity with the intent to falsely obtain transgender status. Given that individuals have the right to express their own gender identity, it is not clear on what basis the authorities can determine whether a person is making a false request. Note that the law does not provide for a penalty for submitting a false application for a certificate of identity.2 The Transgender Persons (Protection of Rights) Act 2019 was passed on November 26, 2019. [2] It allows people to perceive their gender identity, ensures the identification of transgender people and gives them certain rights and benefits. Following the notification of the law, on April 16, 2020, the government circulated the draft rules of the Public Registration Act. The draft rules specify the type, form and procedure by which people can be recognised as transgender. The Transgender Persons (Protection of Rights) Act 2019 states that a person recognized as “transgender” has the right to “perceive themselves” as their gender identity.2 Once a person identifies as transgender, they can apply for a certificate of identity issued by a district judge. Such a certificate is proof of their identity as “transgender” and confers rights and benefits under the law. The draft rules specify the modalities, form and procedure by which persons may apply for a certificate and within which the certificate is issued. The draft rules state that to apply for a certificate, applicants must submit (i) an application form, (ii) an affidavit declaring themselves transgender, and (iii) a report from a psychologist at a public hospital. Based on these documents, the district judge may certify the applicant as transgender. This raises the following three questions.
The Expert Panel on Transgender Issues (2014) found that the transgender community is excluded from family, unemployment and homelessness. [7] As a result, transgender people may have difficulty proving their residency for an uninterrupted period of at least one year before applying. Sources: Transgender Persons (Protection of Rights) Act, 2019, draft Rules on the Protection of Transgender Rights, 2020; PRS. The draft rules also stipulate that the government concerned must provide separate toilets in the facilities within two years of the rules being announced.