The Anti-Discrimination and Equality Bill, 2016 (“ADE”) was introduced in the Lok Sabha on the 10^th of March, 2017, by Dr. Shashi Tharoor as a private member Bill. Dr. Tarunabh Khaitan, Associate Professor of Law at the University of Oxford has advised with respect to the contents of the Bill. According to an interview by Dr. Tharoor, 4% of private member Bills move on to the discussion stage. As of now, we do not know whether the ADE will move to the discussion stage. The protections provided under this Bill will apply to many different kinds of social markers. However, in this short article, I will try to lay out broadly how the ADE would affect the LGBT (lesbian, gay, bisexual and transgender) community and those perceived to belong to this community. For the remainder of the article, any mention of the LGBT community should be read as including both these categories, as is also the intention of the Bill.

1. Protection from Sexual Orientation and Gender Identity Discrimination

The ADE is a comprehensive anti-discrimination Bill that seeks to provide all citizens of India protection from various forms of social discrimination (Preamble) from both the government and a set of private bodies (employers, landlords, shopkeepers, public contractors etc.). Therefore, several social markers such as caste, race, ethnicity, descent, pregnancy status, skin tone, food preference, HIV status, disability, marital status etc. which also form the bases of different kinds of discrimination in society are categorized as protected characteristics under this Bill. A protected characteristic is a characteristic on the basis of which one cannot be discriminated against. Sexual orientation and gender identity are also categorized as protected characteristics. Therefore, the most important feature of this Bill in the context of this article is that it provides protection from sexual orientation and gender identity related discrimination to citizens of India (S. 3(i) read with S. 14). Doubtless, it would include not only L, G, B and T persons but also persons who are gender fluid or gender queer, or do not identify with any particular identity category. However, by abundant caution, this Bill has stated that features which are, “either outside a person’s effective control, or constitute[s] a fundamental choice” are protected characteristics which cannot form the basis of discrimination.

2. Direct, Indirect and Aggravated Discrimination

A. Direct Discrimination

The Bill provides protection from direct, indirect and aggravated discrimination. Direct discrimination would arise when there is a rule or practice which is motivated by prejudice/stereotype or intends to harm people on the basis of their membership to a particular group (S. 6). For example, if a blood donation centre forbids gay men from donating blood because they assume that every gay man has AIDS, it would amount to direct discrimination on the basis of sexual orientation. This would be a case of direct discrimination even if the blood donation centre can produce statistical evidence to show that a large percentage of persons with HIV/AIDS are gay men, or that a large percentage of gay men have HIV/AIDS.

B. Indirect Discrimination

Indirect discrimination would arise when sexual orientation or gender identity do not form the direct basis of discrimination on the face of it (S.7). However, if one digs deeper, one will find that the LGBT community suffers a disproportionate disadvantage under the rule. S. 377 of the Indian Penal Code, 1860 (“IPC”) is the classic example. On the face of the law, it does not discriminate on the basis of sexual orientation or gender identity. As per S. 377, “carnal intercourse against the order of nature” is criminalized. However, S. 377 is seldom used against the sexual acts of a man and a woman. It is used primarily to harass members of the LGBT community (Naz petition, paragraph 5). Therefore, such a law although equal in words, treats people unequally based on their real or perceived sexual orientation or gender identity and disproportionately affect members of the LGBT community (Naz Decision, Delhi High Court, paragraph 113). Therefore, such a law would qualify as indirectly discriminatory under the Bill.

Another example may be surrogacy laws which restrict surrogacy to married couples. Apart from being directly discriminatory on marital status, such a law could also be indirectly discriminatory against the LGBT community if it is shown that surrogacy is one of the chief ways by which members of the LGBT community (esp. gay men) become parents.

C. Harassment, Boycott and Segregation

This Bill also protects the LGBT community against harassment, boycott and segregation. Therefore, any communication which has the purpose of creating a bullying atmosphere for actual or perceived membership of the LGBT community would be unlawful under this section (S. 8). The example present in the Bill itself is that if a boy is called a “sissy” for refusing to play sports, such name calling would amount to harassment.

Any call to boycott or ostracize someone on the basis of their actual or perceived sexual orientation or gender identity would be forbidden under the boycott provision of the Bill. For example, if the school principal in the example above-mentioned directs all students to stop interacting with the boy, the principal would have committed the act of boycott under this provision (S. 9).

Segregation is said to occur under the Bill when, by use or threat of force or manipulation, a person is prevented from interacting, marrying, eating, living, socializing, visiting, being friends with, etc. with a LGBT person (S.10). For example, if a landlord informs a tenant that their gay friends cannot visit them and if they do, the tenant would be kicked out of the rented property, such threat would amount to segregation under the Bill.

Further false complaints of kidnapping under S. 366 of the IPC also amount to segregation under the Bill (S. 10(2)). Therefore, if the parents of one of the partners of a lesbian couple file a false case of kidnapping against the partner of their daughter, it would amount to segregation under the Bill (in addition to the offence of false information under section 182 of the IPC). Furthermore, this Bill provides that in such situations, if the partner, whose parents have filed the case, makes a reliable statement stating that the complaint is false, such statement would be sufficient to prove that the complaint is false even if she later retracts from that (S.10 (3)).

Whether such a reliable statement should be sufficient to prove a false complaint case, or whether it should just establish a prima facie false complaint case and shift the burden on the other party (the complaining parents in this case), is something that the Parliamentarians may take time to consider in the discussion phase, in keeping with the realities of how these complaints are made in the police station and principles related to the apportionment of burden of proof in similar cases.

Finally, any encouragement or facilitation of violence against members of the LGBT community would constitute discriminatory violence under the Bill and any public servant whose duty it was to protect from such violence and fails to do so would also be said to have committed discriminatory violence (S.11).

3. Diversification Allowed

This Bill allows the adoption of any rule or policy that will encourage the participation of the LGBT community in government, local authorities or activities of private persons performing public functions (for example, public contractors). Such diversification measures can include scholarships, special training programmes etc. Such diversification techniques would not be to the detriment of affirmative action measures that may already exist (S. 13 read with S. 14 (6)). Additionally, public authorities while making a rule will be required to give due regard to ending discrimination and the promotion of quality and diversity (S. 16).

4. On Whom Does the Duty of Non- Discrimination Lie?

The duty of non- discrimination flows from persons belonging, or representing persons in, category A to, persons in category B. Persons in category A are 1. Employers, 2. Landlords, 3. Traders, 4. Service providers, 5. Public authorities; 6. Private persons performing public functions. Persons in B are 1. Employees; 2. Purchasers or tenants, 3. Consumers; 4. Consumers; 5. Any affected persons; 6. Any affected person, respectively (S.14). A, or representatives of A cannot discriminate, directly or indirectly, or use discriminatory violence or boycott, harass or segregate, B.

Therefore, a landlord cannot refuse to rent property to transgender persons on grounds that they are transgender. Similarly, for other categories of A and B. Additionally, the landlord must also ensure that their employees like the house help etc. do not discriminate against the transgender tenant (S. 14(3)).

Inversely, the duty to not discriminate, harass, boycott etc. does not flow from B to A. Therefore, for example, an LGBT support group can put out a call on their Facebook page to boycott a particular food joint that has homophobic graffiti inscribed on its walls.

The duty of non- discrimination does not lie in personal relationships. For example, LGBT persons are not protected from discriminatory attitudes from their family members at home or discriminatory remarks from their friends or other personal relationships.

5. How Can these Protections Be Enforced?

A. Remedies Available

The protections provided under this Bill can be enforced by approaching the State Equality commission, a body proposed to be set up under this Bill (S. 31). The range of remedies available under the Bill are, apology, abandonment of discriminatory practice, diversity training, damages, normal and exemplary (this can go up to Rs. fifteen lakh), protection orders (which are like restraining orders) etc. (S. 33 and 34). Breach of a protection order can invite an imprisonment term of up to one year (S. 35(1)).

B. Who Can Bring the Claim?

As per S. 37, the claim can be brought by 1. the aggrieved person; 2. relative; 3. sexual or romantic partner; 4. organizations that represent the aggrieved person; or 5. with the permission of the central equality commission, any one aggrieved person acting on behalf of other aggrieved persons who have the same interest (for example, an LGBT activist challenging a particular law on behalf of all members of the LGBT community).

C. What Does the Aggrieved Person Have to Prove?

The aggrieved person (plaintiff) has to make out a prima facie case of discrimination. This means that the plaintiff will have to show that a particular rule or practice does in fact, mete out different treatment on the basis of sexual orientation or gender identity. Once the plaintiff shows this, the burden shifts to the respondent (employer, trader, government etc.) to show that such a discriminatory measure was instituted in good faith and as a proportionate means to achieve a legitimate end (S. 6(2) and 7(2)). However, there is no defence provided for segregation or boycott in the Bill.

D. Will S. 377 Pose some Practical Problems to this Bill?

The presence of S. 377 may pose some practical problems to the enforcement of the guarantees under the Bill. For example, a landlord may refuse to rent out property to a gay couple not because they are gay, but because their sexual act means that they would be engaging in criminal activity under the IPC. A landlord may refuse to rent out property to persons engaging in criminal activities. However, S. 36 of this Bill allows the High Court to strike down other laws incompatible with the provisions of the Bill. This could provide an opportunity for High Courts to consider whether S. 377 should remain on the books and provide another avenue for challenging this section.

6. Concerns

While there are several protections provided to the members of the LGBT community, there are some concerns that the Bill poses to the LGBT community. I will try to lay them out here.

A. Segregation, Boycott, Harassment Flows Both Ways

Recall that the duty to not discriminate, boycott, harass etc. flows from A to B (see part 4). As the Bill is written, A comprises people who provide services and B comprises people who receive services. Imagine a situation of a shop which is owned by a lesbian couple. While this couple may not discriminate against potential customers, customers may discriminate against this shop. They may not like to purchase goods from this shop. No one may enter this shop. The Bill does not provide a remedy in this situation.

A previous version of this Bill, The Equality Bill, 2016 accounted for such a situation. S. 14(2) of this version forbade segregation by anyone. The proposed Bill could be amended to this effect. However, the following question may still require discussion: how would such a provision be enforced? How could an order of a court get people to start going to this lesbian couples’ shop and who would be responsible for non- compliance with this order? Perhaps, such a situation cannot be remedied by a law. Equality and diversity education might be a more effective tool in such situation.

Imagine, inversely, that the shop of this lesbian couple is flooded by customers all of whom make extremely derogatory and discriminatory remarks about the sexuality of the women. The Bill does not make a provision for these shop owners to segregate these customers on the basis of this homophobic verbal harassment. In other words, the shopkeepers cannot prevent these homophobic customers from coming in especially because both, they bear the duty of non- segregation and non- harassment (and not the customers) and also because there is no valid justification provided in the Bill for segregation.

A previous version of this Bill, S. 14 of the The Equality Bill, 2016 perhaps accounted for such a situation when it forbade discriminatory violence by all people against members of a protected group (the lesbian couple, in this case). Perhaps this latest version could be amended accordingly.

B. Freedom of Speech and Expression May Come in Conflict with the Provisions of this Bill

Our constitution allows a vast and expansive freedom of speech and expression fundamental right. Accordingly, as per S. 14(5)(iv) of this Bill, any form of speech and expression (among other things) which is allowed under the constitution does not amount to discrimination. In our constitution, hate speech, with the exception of the SC and ST (Prevention of Atrocities) Act, 1989, is not forbidden. This means that one can say hurtful and hateful things about members of the LGBT community and this is not forbidden under the constitution unless some other conditions are met. These conditions can be, for example, that the public order is threatened (Art. 19(2) of the Constitution of India). In such a situation where the freedom of speech and expression allows a wide freedom on the one hand, and this Bill forbids the bullying, harassment and segregation of LGBT persons on the other hand, a conflict may arise over the constitutionality of the bullying, harassment and segregation provisions. If such a question comes before the courts, they may have to find a way to reconcile these provisions with the constitutional freedom.

C. Discrimination in Regard to Religion Allowed

Inversely, freedom of religion under the constitution is subject to the provisions of equality (and other fundamental rights: Article 25). In this regard by allowing discrimination when it comes to religion or religious places of worship (Schedule), this Bill may have provided a constitutional concession where one may not be required. Perhaps, this provision could be looked at once again in the discussion stage to determine its suitability in the Bill.

D. Doubtful Whether Protection Extends to Foreigners

The preamble of the Bill states that the Bill is designed to, “ensure equality to all citizens” whereas “nationality” is also a protected characteristic under S. 3 of the Bill. Therefore, one cannot be discriminated against on the basis of nationality under the Bill. However, S. 3 also mentions that protected characteristics apply only to “citizens.” This gives rise to an apparent contradiction and leaves doubtful whether LGBT foreigners in India will receive protections of the Bill. However, this is a minor ambiguity in the Bill and can be rectified by an appropriate amendment.

“Words are magic things,” proclaimed pandit Nehru as the Constituent Assembly resolved, on the 13^th of December, 1946, to constitute itself into an independent sovereign republic and to give to itself, a constitution. In an unconnected context, but I daresay, in a similar allegiance to freedom, the Delhi High Court co-opted these words when it voiced the aspirations of many in its landmark judgment of Naz Foundation v. NCT of Delhi and Ors..[2] This judgment, albeit a High Court decision, stated that S. 377 of the Indian Penal Code which criminalizes “sex against the order of nature” was unconstitutional to the extent that it criminalized adult consensual “homosexual sex”[3] in private.

If it is magic that we are talking about, the proposed Transgender Persons (Protection of Rights Bill, 2016) hereinafter, the Trans Bill, 2016 has lost much of the magic of the Transgender Persons Bill, 2014 (hereinafter, the Trans Bill, 2014).[4] Gone from the 2016 Bill is the government’s commitment to reasonable accommodation for transgender persons[5], the right of transgender persons to live in community[6], their right to free legal aid, the commitment of the government to take proactive steps to protect transgender persons from violence and exploitation[7], concessional loan rates available to transgender persons, transgender persons’ entitlement to social security measures from the government in the form of community centres, shelter, water, pensions and unemployment allowance.[8] Gone are measures, perhaps carelessly called rehabilitation measures in the areas of health, employment and education.[9] Gone are affirmative action measures in the form of reservation of seats and posts in education and employment.[10] There are several other modifications of language in different sections that could limit government obligations– I have not mentioned them here.

This short article is not about that. After all, previous versions of Bills are not binding; they cannot be produced in court as obligations a judiciary must enforce. Yes, they can be produced in court as evidence of what the legislator once intended to say. By contrasting them with the passed version of the Bill (the “Act”), one may establish, what the legislator actually intended. After all, exclusion unius est exclusio alterius is a serious rule of statutory interpretation, taken seriously by the Indian courts. The rule means that if the legislator omitted to write some something, or if the legislator excluded something, they intended to do so. Therefore, if the legislator committed to reservation in one version of the Bill but omitted it in a later version, they intended to do so. So on and so forth. The courts cannot ignore this rule. Sure, they can find good reasons to not adhere to it but they would have to be overpowering reasons; reasons more urgent than the call of this rule. Judgments cannot, unless they open themselves up for criticism on this ground, proceed in disregard of this rule. However, this article is not about that.

This article is about a rule that can be argued in court. Article 141 of the Indian constitution states that the judgment of the Supreme Court is binding on all lower courts. Therefore, all lower courts must enforce Supreme Court judgments. Article 142 of the Indian constitution empowers the Supreme Court, to pass any order or direction which is enforceable as law, in the presence of a legislative vacuum on a topic.[11] As there is no legislation on the rights of transgender persons in India, the Supreme Court directions and rulings on the matter, are by force of Article 142, law. They are the law of the land currently. This of course, does not place any obligation on the legislative wing to translate these very findings into law, but in fact, it has been the practice in such matters, as Justice of the Supreme Court (Retd.) Ruma Pal[12] has noted, to incorporate the Supreme Court judgment into statues.[13]

Therefore, until the legislative wing actually formalizes the Bill into an Act, the Supreme Court judgement rules the field and must be enforced by lower courts (Article 141) and, by the authorities contemplated in the ruling, as per Article 142. Once an Act comes into being, the Supreme Court again has two choices. First, it can test the Act against constitutional guarantees.[14] It may find that some of the provisions of the Act deny fundamental rights to transgender persons and hold those provisions invalid. Second, in its exercise of the ‘complete justice’ provision, the court may by- pass the provisions of the Act and restore its prior directions/pass new orders.[15] Both these choices can be exercised together or independently.

This article contrasts the judgment of the Supreme Court of India in the National Legal Services Authority v. Union of India and Ors. [NALSA] case, which found that all fundamental rights extend to transgender persons, with the latest version of the Trans Bill; Trans Bill 2016.

1. Definition of Transgender

Trans Bill, 2016 defines a transgender person as “neither wholly female nor wholly male”; or “a combination of male and female”; or “neither female nor male”; and “whose sense of gender does not match with the gender assigned to that person at the time of birth…”[16] The positioning of the and seems to suggest that the Bill understands transgender as being a mix of biological and internal identity-based conditions. There is no necessary connection between biology and a deeply felt gender identity i.e. it is not necessary that one have intersex conditions such as be a “combination of male and female” or have ambiguous genitalia for them to feel that they truly belong to another gender. This is a myth. In fact, scholars such as Serena Nanda have found that most Hijra persons are born with genitalia such that by medical standards of sex-assignation they are assigned male at birth by doctors.[17] The Supreme Court understood this when it defined transgender purely in terms of a deeply felt gender identity.[18] The proposed definition of the Bill has the potential to exclude from protection of the law, several transgender persons who do not meet the biological conditions highlighted here.

Moreover, the Bill removes from the definition of transgender, references to several regional identities such as Hijra, Kothi, Aravani etc. all of which were included within the Supreme Court’s umbrella definition of transgender[19], and were included in the definition of transgender in the Trans Bill 2014.

2. Right to a Self-Identified Gender

The Supreme Court decision affirmed the right of a transgender person to their self-identified gender.[20] However, as per S. 4(1), Trans Bill, 2016, “a transgender person has a right to be recognized as such, in accordance with the provisions of this Act.” Once this has happened, “a person recognized as transgender under sub-section (1) shall have a right to self-identified gender.”[21] It is important to note the potential of this wording. The right to self identify which stood independently as per the court decision seems to have been subsumed under the “provisions of this Act” as per the Bill. Reading further[22], one finds that a transgender person must submit an application to the District Magistrate (D.M.) to obtain a transgender certificate. The D.M. passes this application on to a screening committee which comprises a doctor, a social worker, a psychiatrist or psychologist, a government officer and a member of the transgender community. This committee peruses the application and based on its recommendations, a certificate of identity is issued to a transgender person.

This screening process has perhaps been set up to counter apprehensions that people would abuse the final Act by falsely claiming that they are transgender when they are not. Even if people were to take on a false identity mired in stigma and discrimination to make themselves eligible for the same scheme of constitutional protections they received as non- transgender persons (reservation etc. is removed from the Trans Bill, 2016), this kind of legal rewiring of the self-identity guarantee has the potential to subject transgender lives to increased legal and medical regulation that they may find repugnant to the notion of “self-identity.”

The Trans Bill, 2016 does not lay down what criteria this screening committee will look at to make a determination. It is unclear whether these criteria will be developed in consultation with transgender persons. Doctors, psychiatrists and psychologists preside over this committee. There is only one transgender person on this committee. Trans Bill, 2014 recognized a person to be transgender in the sense of identity alone “irrespective of surgery.” This phrase is now removed from the definition of transgender from the Trans Bill, 2016. Could this mean that the government could lay down a requirement for surgery as a condition for the transgender certificate? True, the Supreme Court has stated expressly that, “any insistence on SRS for declaring one’s gender is illegal and immoral”[23] but this will come up for decision only when such a rule will be challenged in court. What would happen in the interim?

The definition of transgender as per the Trans Bill, 2016 envisages a mix of biological and gender identity conditions to co-exist for a person to be transgender. Will the screening committee then require evidence of such intersex biological conditions? Will the psychiatrist or the psychologist have to diagnose a gender identity disorder before a person can get a transgender certificate? If so, would this not further pathologize the identity? Even if we find good reasons for these criteria, will the transgender person be facilitated enough to procure these documents? Visits to the doctor or the psychologist puts one in an extremely vulnerable position, heightened manifold when the doctor does not explain the situation and when limited understanding of that specialized discipline hinders people’s ability to ask questions. Many transgender persons do not have an extensive educational experience owing to discrimination.

Perhaps, it was in recognition of these facets that the Supreme Court did not lay out any criteria for self-identity, leaving it completely to be self-determined.

3. Transgender Certificate

The Trans Bill, 2016 contemplates that the certificate of identity be issued to a transgender person as “transgender” [S. 7]. Plain reading of this section is contrary to the Supreme Court judgment that a transgender person has a right to self identify as “male, female or third gender.” The Trans Bill, 2016 must recognize that some transgender persons may want to identify with the opposite sex in true recognition of their deeply felt gender identity. They may not want to recognize as transgender. Even if a transgender certificate is required to identify persons eligible for associated benefits, the certificate must additionally make provision to identity a person’s deeply felt gender identity.

4. Reservations

The Trans Bill, 2016 does away with the direction of the Supreme Court obliging governments to provide reservation in educational institutions and public appointments.

5. Failure to Enact Measures to Address Stigma, Fear, Shame Etc.

There are no provisions in the Trans Bill, 2016 to address problems “such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc.”[24] as required by the NALSA decision. To be sure, there are welfare measures envisioned for transgender persons[25] but nothing in the 2016 Bill suggests that the government will initiate programmes directed at the general public with the aim of educating them about transgender persons. Shame and stigma will not be addressed until the society that stigmatizes and shames this population is educated in this regard. The Trans Bill, 2014 understood this when it proposed measures [S. 25, Trans Bill, 2014] to raise awareness among the general population to “promote values of inclusion”, “foster respect”, “provide orientation and sensitization at school” etc. Moreover, failure to enact public awareness programmes is in express contravention of the directions of the Supreme Court in NALSA.[26]

6. Penalties in Trans Bill, 2016

Whether criminalizing discrimination and exclusion of transgender persons would be a good means to address the stigma transgender persons face is open for debate. In a scenario when there are no educational or awareness building programmes about transgender persons addressed to the general public, might criminal penalty against discrimination lead to further entrenchment of negativity against this population? The final Act must seriously consider this question before enacting this measure.

Additionally, even if criminal penalties are employed, they create an anomaly. The Trans Bill, 2016 sets an imprisonment term of six months to two years (along with fine) for “harms and injuries” that endanger “life, safety, health, or well- being.” This is as per S. 19(d) of the Trans Bill, 2016. The kinds of harms contemplated by this section extend from economic abuse, to verbal abuse, to physical abuse, and sexual abuse.

The anomaly is that some of these kinds of abuse are dealt differently by co-existing law—the Indian Penal Code, 1860 (I.P.C.) being a prime example. For example, life endangering physical abuse contemplated in the Trans Bill, 2016 seems to most closely resemble grievous hurt in I.P.C.[27] Grievous hurt is punishable with imprisonment up to seven years (along with fine).[28] Grievous hurt caused with a weapon can attract an imprisonment of up to ten years along with fine.[29] Grievous hurt caused by acid will attract imprisonment of at least ten years extendable to life (along with fine).[30]

Under which Act will a person who has caused grievous hurt to a transgender person, be punished? Will the offender receive a punishment under the provisions contemplated under the special Act or will the offender be punished under the I.P.C.? The general rule is that the special Act takes precedence over the general Act but this rule is confounded by the following assertion in the Trans Bill, 2016: “the provisions of this Act shall be in addition to, and not derogation of, any other law for the time being in force.”[31]

7. No Protection from Discrimination on Grounds of Sexual Orientation:

The Supreme Court in NALSA had stated that, “Discrimination on the ground of sexual orientation and gender identity, (…) impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”[32] However, this version of the Bill, like the last version of the Bill, fails to prohibit discrimination on grounds of sexual orientation.[33]

8. 8. “The evil that men do lives after them; the good is oft interred with their bones”[34]

Let this not be the case here. There are some good aspects of the Trans Bill, 2016 as well which the final Act would do well to retain. Provision is made for separate sero-surveillance centres[35]; the right of residence (in the sense of a right to not be separated from one’s family/removed from the house) is guaranteed to all transgender persons and not just transgender children[36], and there is an attempt to make education more inclusive and the phrases which could lead to potential segregation in this field are done away with.[37]

Words are magic things. The magic of words, however, can also be lost if one is careless with them. The legislature must carefully consider the directions of the Supreme Court before finalizing an Act to protect the rights of transgender persons. For, if they fail to do so, a keen observer is liable to ask, “What ails the legislature?” Another may stare blankly in response.

FOOTNOTES AND REFERENCES

[1] Surabhi Shukla is a lawyer and currently, a PhD (law) student at the University of Oxford, U.K.

[2] 2009 Delhi High Court. See para 129. Judgment here: https://www.escr-net.org/sites/default/files/Court_decision.pdf

[3] Meaning in the context the judgment was given—sex between persons of the same sex.

[4] I must put before the reader, in fairness, that the Trans Bill, 2014 was not without flaw. My colleagues and I have critiqued provisions of it in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[5] S. 4(2), Trans Bill, 2014.

[6] S. 7, Trans Bill, 2014.

[7] S. 10, Trans Bill, 2014. As opposed to taking steps to address violence after it has occurred in Trans Bill, 2016.

[8] S. 11, Trans Bill, 2014.

[9] S. 19, Trans Bill, 2014.

[10] S. 21, Trans Bill, 2014.

[11] Article 142, The Constitution of India, 1950.

[12] A former judge of the Supreme Court of India.

[13] Justice (Retd.) Ruma Pal, ‘Separation of Powers’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016)    265. In fact, Pal goes so far as to say that such directives have, ‘rarely been overturned by legislation to the contrary.’ [page 265]. Pal and another commentator writing on the issue have identified only one instance in which Supreme Court directions faced resistance from the executive in the case of Prakash Singh v. Union of India (2009) 17 SCC 329. See also, Raeesa Vakil, ‘Jurisdiction’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016) 381. I am unaware of other instances.

[14] This power vests both in the High Courts and the Supreme Court.

[15] Justice Ruma Pal and Samarditya   Pal (eds) MP Jain’s Indian Constitutional Law (6^th edn, LexisNexis Butterworths Wadhwa, 2010) 287-288.

[16] [ S. 2(i)].

[17] Serena Nanda, “Neither Man Nor Woman” xx (Wordsworth Publishing Company, 2^nd Edition, 1999).

[18] Para 11, NALSA.

[19] Para 12, NALSA.

[20] Para 129(2), NALSA.

[21] S. 4(2), Trans Bill, 2016.

[22] Ss. 5-7, Trans Bill, 2016.

[23] Para 129(5), NALSA.

[24] Para 129(5), NALSA.

[25] Ss. 9 and perhaps, 18 of the Trans Bill, 2016.

[26] Para 129(8), NALSA.

[27] S. 32o, Indian Penal Code, 1860.

[28] S. 325, Indian Penal Code, 1860.

[29] S. 326, Indian Penal Code, 1860.

[30] S. 326A, Indian Penal Code, 1860.

[31] S. 20, Trans Bill, 2016.

[32] Para 55, NALSA.

[33]This argument is also made in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[34] Mark Antony at Julius Caesar’s funeral in Shakespeare’s play, Julius Caesar.

[35] S. 16(a), Trans Bill, 2016.

[36] S. 13, Trans Bill, 2016 as opposed to S. 11, Trans Bill, 2014.

[37] S. 2(c), Trans Bill, 2016 as opposed to S. 2(i), Trans Bill, 2014.