So this might be controversial, but what is the huge fuss with the Trans Bill? I think it is reasonable for the State to be able to determine who is the ultimate beneficiary of trans welfare policies? We’ve already seen what happens when reservation is based on intrinsic characteristics like caste or religion. What makes the trans issue more complicated is that self-determination is a huge loophole since at least for caste and religion you have a community backing you, documents and familiar origins attesting to your origin a certain way. If tomorrow, an upper class guy decides he’s trans and there’s no checks to ensure he doesn’t get benefits from welfare and reservations meant for actual trans people, it’ll be the same thing as reservation again: policies meant for the vulnerable going to those who aren’t vulnerable, who are privileged and who don’t need those benefits. It’s not about left or right, but simple common sense. A lot of trans people, especially those in wealthier areas or those from privileged backgrounds, never really undergo gender affirming surgeries and giving them even more privileges under the garb of trans rights seems stupid, especially considering rural trans and intersex individuals who cannot opt-out of the discrimination. It’s kind of like being gay, like I don’t see how a gender which has had historic privilege is suddenly to be treated as vulnerable simply because they sleep with each other. It doesn’t make the inherent economic and social privilege men have go away, it just puts on a garb of vulnerability on them and ignores that they do not really face issues since no one can figure out their sexuality prima facie, unlike trans people who do suffer immensely based on how they are seen by others. Self-determination may be a right, but making it the pathway to claim benefits is just a losing battle against actual trans empowerment. Am I wrong? Is there something else I’m missing?

The amendment flies in the face of the Supreme Court's decision in NALSA v. Union of India. That decision held that self-determination of gender is rooted in Article 21. Legislatures are free to effectively overrule precedent by taking away the basis of the decisions in question. That cannot be done when it comes to NALSA since the basis of its holding was Article 21. Hence, irrespective of whatever policy arguments may exist in favour of doing away with self-determination, it simply cannot be done. This simple point seems to have been lost on the Central Government. This does not answer your question which is decidedly about the socio-economic aspects of the 2019 Act, but I think it is always good to keep both policy and law in mind while thinking about such issues.

I am unaware of any case saying this. Further, all rights enumerated under Article 21 are an inalienable part of Article 21 itself. No case says that Article 21 can be split into two parts: 1) the right to life and liberty given by the Constitution, and 2) the rights read into Article 21 by the Constitution. There is no distinction between the two. The rights read into Article 21 are what make up the right to life and liberty given by the Constituent Assembly. To argue otherwise would be to take an originalist position which has little to no support in Indian constitutional jurisprudence. The amendment to the 2019 Act is in substance, though not in form, an attempt at amending Article 21 which cannot be allowed to stand.

Sorry- just because a two judge bench decided something as abtract an unexamined as "right to self determination of gender identity" is part of article 21- we should all be barred from questioning it? Do we live in a democracy or in judicial oligarchy? Rights read into article 21 by the constitution? you make no sense at all.

Article 21 says this and only this " No person shall be deprived of his life or personal liberty except according to a procedure established by law".

The idea that "right to self determination of gender identity" is anywhere to be found in ANY plain text or purposive reading of the constitution is just absurd. The words self determination or gender or identity or gender identity are nowhere in the constitution. they werent contemplated by framers and they certainly cannot unequivocally be said to be a part of any transformative reading of it either.

That is it. reading a concept as nebulous as dignity into life itself is a stretch but even if you did that- that right would still be something that governments can deprive someone of according to procedure established by law. That second phrase doesnt vanish simply because judges irresponsibly read into the first.

We have the death penalty in this state- we routinely deprive people of their right to life simpliciter because the procedure is properly established by law.

NALSA specifically gave directions to the union government to make rules on this. This is within the purview of a duly elected legislature. NALSA I would argue was an unconstitutional judgment that is ripe to be overruled.Two judges of the supreme court deciding something so fanciful and artificial should be a right without analysing downstream policy consequences fundamentally violates the separation of powers.

Note also that the current law doesnt actually prevent anyone from identifying as trans or as the opposite sex. People are free to do that still because of A 19. What the law says is that benefits accruing to "transgender persons" under the act will only accrue to enumerated categories- socio cultural groups, people with DSDs, and those forcibly transitioned against their will. There is no reason to argue that not only should a person be free to identify as they please- but that the government is obligated to not only recognise such self claimed identity but also reward it with benefits given to marginalised groups. Surely even if there is a right to identify as you please- there are limitations to such a right as there are limitations to all rights. Those limitations should be properly prescribed by law.

I meant to say that "... rights read into the Constitution by the Court", saying 'constitution' instead of 'court' was an error on my part. Your rebuttal at its core takes issue with judge-made constitutional law (Maneka Gandhi, Francis Coralie etc). So long as Article 141 exists, you are shit out of luck irrespective of whatever textualist or originalist arguments you can think of. Further, the exact method of constitutional interpretation is nowhere laid down in the Constitution, the Constituent Assembly has left that up to the Courts to decide on. Using their discretion, the Courts have landed on living tree constitutionalism which is not very concerned with either the text of the Constitution or the original intent behind it.

Pray tell what does A 141 say? does it say that the judiciary gets to decide social policy for the country? does it say that the judiciary gets to read whatever it wants into Article 21? or does it say that orders passed by the supreme court will be binding on all courts in the country?
Some courts have landed on some living document constitutional interpretation- that does not have to be the case. Judges are persuadable and can change their mind. Its about time they exercised some restraint and followed the law instead of making it up.

I’m sorry that’s a nonsensical position. Words either have meaning or they do not. We either have a constitution or we have a country where judges can make rules without regard for what the words of the constitution actually say. Who elected these judges ?

How is something so fanciful as “self determination of gender identity” a part of right to life and liberty?

Why do law students never think beyond the policy outcomes they want ? If you give powers to judges to ignore the constitution to gift you policy outcomes today- they’ll do same thing to gift your opponents policy outcomes tomorrow.

It is quite simple really. For every individual , Gender is an integral part of their life in human society. Therefore the right to life includes the right to gender identity. In other words, life without gender (in our present society ) would be a diminished life. Govt can't take it away without fair just and reasonable procedure.

In addition, Art 19(1)(a) guarantees the right to expression. "Expression" in this clause is not qualified or limited to any particular form of expression, so it would very well include gender expression too .

I would challenge the idea that conforming to gender stereotypes is some integral part of everyone’s life. It certainly isn’t a part of mine. Life without gender would actually be liberatory. Gross misunderstanding of feminist theory to think any of this will lead to “progress”.

A 19 would give you the right to believe whatever you want to. Subscribe to any religious beliefs about the sacred importance of gender as you like. It does not extend to - the state must also have those beliefs. The people of this country are entirely free to believe in Christianity, Islam or Hinduism or anything else. But that doesn’t entail the state to pass religious laws that recognise Christ is king or that allah is the one true god or to state Jai Shree Ram.

A 19 let’s me believe any number of things about myself - that I’m a 5 year old for example or that I’m a dalit- but the state isn’t required to believe me when I spout obvious falsehoods.

Using your example of religion - the state has a duty to treat all religions equally. so if it recognises Hinduism it must also recognise Christianity and so on. All are entitled to equal protection from the state. Similarly with gender, if the state provides ID cards with male and female, they cannot deny the same recognition to people of third gender. Basically people can believe whatever they want, but the state through law cannot uphold only one belief at the cost of others.

No person is a third gender. Mal and female aren’t religious beliefs they’re biological realities. You know this. Stop lying to yourself. Every human being on earth is here because of sperm from a man and egg from a woman. No person has ever changed sex. Not really. It’s in every cell of your body.

State law doesn’t not uphold a religious belief here. If you are part of a religion where you believe in Xenu and believe in thetans and that anyone who disagrees with you is a suppressive person. You have a right to believe it. You do not have a right to demand special treatment for your beliefs or that the state co-sign your faith.

Literally not a word written there is untrue. It would be a wonderful thing if folks who are so quick to censor and condemn could come up with one single example of a human being actually changing sex. Not just getting body modification surgery- changing sex. It doesn’t happen.

Show me one human being who doesn’t have a sex , or who produces some third gamete- a spegg- intersex people aren’t “between the two sexes”. Intersex people have differences of sex development that means at some point their sexual development halted or got interrupted/ that doesn’t make them a third sex. A ma with a micropenis isn’t less of a man and a woman with hirsuitism isn’t less of a woman.most intersex conditions are sexed conditions- meaning they only happen to one set of people - either male people or female people. So saying someone is intersex is basically saying they’re a male person or a female person with a condition.

In any case most trans identified people don’t have any DSDs. Human beings can’t change sex by proclamation alone. It’s not magic and we’re not gods- we’re beasts like every other animal on this planet.

This is so dumb. There are entire schemes Garima Grehs, SMILE for surgeries and hormones and reservations in several states for employment and education that are made available by different ministries because of this act. You just don’t know how laws work. You should be less confident.

No parent act ever spells out all the schemes. It enables executive to make schemes. Within the enactment itself there’s a number of non discrimination rights that are enumerated that apply to transgender persons.

So there’s no one using these schemes that can afford their own healthcare or afford their own housing? No fraud at all?

What about reservations ? That’s the animating reason for the government to do this. Are you arguing in a country like India there isn’t someone who would claim a trans identity to get reserved jobs and seats ?

If you truly think that the government shouldn’t get to define who gets benefits that it gives out and shouldn’t demand any accountability from beneficiaries- I can only assume you’re a child who has had everything handed to them and had to work for nothing.

Start with your money- give it to whoever asks without asking them why they need it or who they are.

Trans identity is so stigmatised that many actual trans persons hide and don't reveal their gender identity in public. Highly unlikely that any cis person would fake being trans, that too publicly, for a job.

Public Healthcare in general is available to all irrespective of income. You or I can visit Aiims and avail free treatment even if we can afford to pay for private treatment. that's what taxes are for. Same logic would apply for gender transition surgeries as well. In any case, govt funded schemes sometimes have income limit, but this can be done irrespective of the persons gender identity.

What nonsense. You need to speak to some social scientists- or just get out of the house more. What do you think trans identity even means? it doesn't automatically mean that you're treated like a street walking hijra. Trans identity for many younger people enhances their status. Demanding that other people refer to you with special language and that you be given special accommodations and treated as more fragile than others in the name of mental health is an advantage in many places. In progressive spaces like universities a trans identity can make you a sacred caste.

I know several law school girls who adopted non-binary pronouns etc and got aadhar cards and TG ID cards - they don't change anything about their presentation that would stigmatise them in real life. And they obviously wouldn't flaunt it when they're in actual trouble. When they're being arrested by police they specifically want female police officers to arrest them for some reason.

I also know several young men who are actual predators but put on nail paint and go by they pronouns. This makes them unquestionable in liberal spaces.

One former professor at big national law university actually advised me to identify as non binary as it would help me when it came to foreign phd applications. She herself also identified as non binary.

Laser body hair removal is not healthcare- women don't get it for free. trans women do through TP Act and SMILE. Elective plastic surgeries are also not covered for most women. but they are free for trans women. What is free when you go to AIIMS is basic labs, OPD, emergency services. Even medicines you likely have to show BPL card. and most of the stuff that is free is not free by magic- its free because the government pays for it using tax money- Ayushman Bharat and other schemes. And just like the government is morally right to know who its spending money on through Ayushman Bharat- it is morally right to know who it is spending money on through SMILE. and it has the prerogative to decide that money should go to groups that cannot afford care as against groups that can afford private care.

You're not wrong. There is dispute within trans community about who really even needs or wants these reservations and welfare schemes. This has long been a dispute between old trans and new trans. Old trans made the case for reservations by comparing themselves to an ostracised marginalised caste/religious group. New trans makes a more individualistic freedom based argument. Of course individualistic self identification can hardly realistically be the basis for compensatory discrimination.

‘opt out of the discrimination’ ?? I don’t consider myself an ‘ally’ of the lgbt community, but I feel that everyone should have the freedom to live as they wish and be allowed to have the same privileges as everyone else. I don’t really think that people transition to enjoy any specific ‘benefits’ that being trans accords them, because those benefits are pretty much nonexistent. It’s not as simple as just choosing not to be discriminated against.

No one in this thread is arguing that people shouldnt be able to live as they choose. they are arguing that welfare benefits from the state should go to people who need them. what do you think 2019 act required of people who wanted to enjoy benefits? did it require surgery? hormones? living as the opposite sex for any period of time? NO. all it required was to file an affidavit to get reservations and free access to surgeries and jobs and all that- are you really saying in a country like india people who literally have to do no more than file an affidavit and fill out a form to get all sorts of advantages wouldnt?

Are you a lawyer or not ? If you aren’t, you should stop confidently making stupid poorly informed statements.

Do you understand how laws work?

Parent legislation’s never spell out benefits. They make schemes possible though that do give benefits. The 2019 act has non discrimination provisions for transgender persons and enjoins the appropriate government to make a range of schemes including reservations and free healthcare for transgender persons. The schemes themselves are introduced by appropriate ministries. There’s a number of benefits you get through this - free surgery hormones therapy laser all that through SMILE. Reservations in a number of government jobs through schemes enacted by state governments. And men could and did even identify as women and contest in women’s reserved seats in municipal elections.

This is a straight lie. I'm shocked to read this ill informed stuff on a legal forum. The enactment does not have a section criminalising rape of trans individual. 18(d) is a messed up vague provision that says whoever.. tends to do.. emotional, sexual, financial abuse of transgender person will be punishable with 2 years. Tends to do- we're punishing inclination not even really a crime. Male on Male rape was criminalised under s.377 until that had to be thrown out.

I tend to miss work most days. But I actually don’t. I go to work. Should I be penalised when I go to work because of my tendency to miss it ? The dictionary definition of “tends to “ is to be likely to behave in some way- we don’t punish people in criminal law because they’re likely to do something. We punish them for something that they have actually done that is blameworthy.

This language isn’t used in any other criminal provision. Repeat offenders don’t have their sentence mitigated and some times have repeat offences be punished with a heavier sentence- but this provision doesn’t do that. It doesn’t ask for previous convictions.

We don’t punish people in criminal law for other crimes they’ve committed other than the indictment before the court. This is called the doctrine of full proof.

Tends to cause emotional abuse is what exactly ? Misgendering? Tends to do financial abuse is what ? An employer being late with the check? Borrowing money and being late to give it back?

In any case the original point still stands. Gross misstatement to say the 2019 enactment or the 2026 enactment criminalises rape or that it awards a lesser punishment for it. The section criminalises tendency to do a number of things (this shouldn’t be a crime) and then awards an outsized punishment for that tendency.