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In the backdrop of the suicide by a transgender woman in Kerala due to an apparently botched sex reassignment surgery, PRASHANT PADMANABHAN sheds light on the unfulfilled promises of the Transgender Persons (Protection of Rights) Act, 2019, and explains that until the Act's provisions regarding healthcare for the trans-community are implemented wholly in letter and spirit, its promise will continue to remain illusory.
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THE tragic death of Ananya Kumari Alex, a 28-year-old transgender woman who underwent tremendous suffering after an unsuccessful sex reassignment surgery (SRS), must serve as a wake-up call to our society. While the Kerala Government has announced investigation into the circumstances that led to her death, the larger medico-legal issues that this case brings up need urgent attention of the State and the general public.
The rights of transgender persons to the universal enjoyment of human rights, to life, equality and non-discrimination, recognition before the law, privacy, and protection from medical abuse, among others, are all recognized in what are known as the 'Yogyakarta Principles'. These principles outline a set of human rights standards in the areas of sexual orientation and gender identity that were decided upon at an international meeting of human rights groups in Yogyakarta, Indonesia in 2006.
Our Supreme Court read these principles into law in 2014 in its celebrated NALSA judgment. In this decision, the apex court declared that transgender persons possess the right to self-identification of their gender (as either male, female or 'third gender'), directed the union and state governments to treat them as 'socially and educationally backward classes of citizens' and for grant of reservation in education and public appointments. Further, the Court directed upon the governments to address the problems faced by transgender persons such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, and social stigma.
It was also held that any insistence for SRS as a condition for changing one's gender is immoral and illegal. Governments were further directed to take proper measures to provide medical care to trans persons at hospitals, and also provide them separate public toilets and other facilities.
The human dignity of members of the trans community was reaffirmed by a nine-judge Constitutional bench of the Supreme Court in its landmark Puttaswamy judgment of 2018 where it recognized a constitutional right to privacy.
The Transgender Persons (Protection of Rights) Act, 2019 (TG Act) has been in force since January 10, 2020. In the TG Act, a transgender person" is defined as someone "whose gender does not match with the gender assigned to that person at birth, and includes trans-man or trans-woman (whether or not such person has undergone [SRS] or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta."
Though this definition recognises transgender persons irrespective of SRS, the TG Act requires an individual to go to the District Magistrate (DM) for the issue of certificate of identity as a transgender person. If the person undergoes any surgery, they are required to get a 'revised certificate' from the DM by the production of the necessary medical documents.
The constitutional validity of the TG Act is currently under challenge before the Supreme Court by a writ petition filed by Assamese trans lawyer Swati Bidhan Baruah, and the Supreme Court has issued notice to the union government. The challenge before the Supreme Court contends, among other things, that TG Act is based on 'state identification' of trans persons, as opposed to self-identification.
As per the TG Act, anyone endangering the life or causing any physical or sexual abuse to a transgender person will be liable to a minimum of 6 months to a maximum of two years imprisonment. The petition before the Supreme Court argues that the penalty is meagre, especially since the same crime in the case of a cisgender woman will attract a minimum of 7 years of imprisonment.
Section 15 of the TG Act mandates the appropriate government to provide various types of healthcare facilities for the trans community, such as separate HIV Sero-surveillance Centres, facilities for sex reassignment surgery and hormonal therapy, and counselling, both before and after SRS and hormonal therapy. It also directs governments to bring out a Health Manual related to sex reassignment surgery in accordance with the World Professional Association for Transgender Health guidelines; review the existing medical curriculum and research for doctors to address trans people-specific health issues, facilitate access for trans persons to hospitals and other healthcare institutions, and provide for coverage of medical expenses through a comprehensive insurance scheme for SRS as well as any other health issues of transgender persons.
Section 16 of the Act mandates that the union government set up a National Council for Transgender Persons'.
These are just two of some very progressive and beneficial measure prescribed under the Act, but its implementation has been lethargic.
It was reported in November 2020 that a comprehensive scheme for transgender persons was being framed by the union government that would, among other things, propose that at least one government hospital in every state be equipped to offer free SRS and counselling. The scheme is yet to be finalized or put out in the public domain.
As per Section 16 of the TG Act, the union government constituted the National Council for Transgender Persons, headed by the Union Minister for Social Justice, vide notification dated August 21, 2020. The functions of the National Council include, as per Section 17 of the TG Act, advising the union government on formulation, monitoring, and evaluation of policies and programs for trans persons, reviewing and coordinating the activities of all public and private agencies relating to trans persons, and redressing the trans community's grievances.
The National Council is yet to come up with a national policy, or provide a roadmap for fulfilling the responsibilities set out in Section 15 of the TG Act.
Among hospitals, there is an urgent need for qualified healthcare professionals associated with SRS, for performing queer-affirmative surgical and counselling practices. This includes not just surgeons and psychiatrists, but also practitioners of gynaecology, urology, psychology, counselling, endocrinology, nursing, and social work.
Mental health practitioners usually look at queer sexuality through the lens of heterosexuality. To unlearn this incorrect approach and to have a queer-affirmative attitude, they need proper training. A health manual guided by the World Professional Association for Transgender Health's guidelines, as mentioned in section 15(d) of the TG Act, may be one such tool for training.
Till a standard operating procedure for SRS is laid down under the guidance of the National Council for Transgender Persons, different state governments must design and lay down their own standard operating procedures in this regard, and instruct every hospital conducting SRS to get informed consent from each of its patients.
'Informed consent' must account for the following factors: the patient's physical fitness and mental preparedness for surgery, whether the patient has realistic goals and robust understanding of the interventions to be performed, patient being informed of and made to understand alternative procedures, as well as about the risks and complications of SRS intervention. These should also form part of the medical record for each patient. Failure to comply must invite legal action against defaulting hospital authorities.
This will require concerted efforts and training, but it would be worthwhile if it prevents further tragedies like that of Ananya Kumari Alex.
(Prashant Padmanabhan is an advocate at the Supreme Court. The views expressed are personal.)
