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Gender Self Identification

  • 01 Jul 2021
  • 6 min read

Why in News

Recently, the Spanish government approved a draft bill that would allow anyone over the age of 14 to legally change gender without a medical diagnosis or hormone therapy.

  • Currently, for someone to change their gender in official records, the law first requires two years of hormone therapy and a psychological evaluation.
  • ‘Self-Identification’ has been a long held demand of trans-right groups around the world, including in India, as prejudice against trans people remains rampant.

Key Points

  • Gender Self-Identification (Concept):
    • A person should be allowed to legally identify with the gender of their choice by simply declaring so, and without facing any medical tests.
    • Arguments in Favour:
      • The current processes for declaring one’s desired gender are lengthy, expensive and degrading.
      • Trans people face daily discrimination and it is vital that steps are taken to tackle discrimination and provide the services and support people need.
      • Gender identity is considered to be an inherent part of a person which may or may not need surgical or hormonal treatment or therapy and all persons must be empowered to make their decisions affecting their own bodily integrity and physical autonomy.
    • Arguments Against:
      • Gender self-identification goes far beyond respecting people’s right to believe what they want; to dress or act or express their identity as they want.
      • This is a political and social demand that affects everybody, but in particular women, gay people and transsexuals.
      • The medicalization of gender identity has allowed for vital legal recognition and transition-related healthcare for some members of the trans community.
  • Countries where Self-ID is Legal:
    • 15 countries around the world recognise self-ID, including Denmark, Portugal, Norway, Malta, Argentina, Ireland, Luxembourg, Greece, Costa Rica, Mexico (only in Mexico City), Brazil, Colombia, Ecuador and Uruguay.
    • In Hungary, a newly adopted law effectively bans all content about homosexuality and gender change from school curriculum and television shows for children under the age of 18.
  • Rules in India:
    • In India, the rights of transgender persons are governed by the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
      • Under the Rules, an application to declare gender is to be made to the District Magistrate. Parents can also make an application on behalf of their child.
      • There will be no medical or physical examination for procedures for issue of certificate of identity/change of gender.
    • In National Legal Services Authority (NALSA) v. Union of India, 2014 case, the Supreme Court declared transgender people to be a 'third gender'.
      • The Court interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under Article 21.
      • Further, it noted that the right to equality (Article 14 of the Constitution) and freedom of expression (Article 19(1)(a)) was framed in gender-neutral terms (“all persons”).
    • In 2018, the SC also decriminalised same-sex relationships (Read down the Provisions of Section 377 of the Indian Penal Code).

Features of Transgender Persons Act, 2019

  • Definition of a Transgender Person: The Act defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
  • Certificate of Identity: The Act states that a transgender person shall have the right to self-perceived gender identity.
    • A certificate of identity can be obtained at the District Magistrate's office and a revised certificate is to be obtained if sex is changed.
  • The Act has a provision that provides transgender the right of residence with parents and immediate family members.
  • The Act prohibits discrimination against a transgender person in various sectors such as education, employment, and healthcare etc.
  • Seeks to establish Natonal Council for Transgender persons.
  • Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

Source: IE

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