The Transgender Persons (Protection of Rights) Act, 2019, and its implications are being examined by the Indian Armed Forces in order to determine the potential employment opportunities for this community
By Abhilash Kumar Singh and India Legal Bureau
—The Transgender Persons (Protection of Rights) Act, 2019, recognises transgenders as a third gender and their right to self-identification based on their gender identity. The Act prohibits discrimination against transgenders in education, employment, healthcare, and access to public spaces. It also mandates the creation of welfare boards at the state levels, which will be responsible for facilitating access to social welfare schemes for transgender persons.
A joint study group was formed by the Principal Personnel Officers Committee (PPOC) after it met in August to deliberate on the implications of the Transgender Persons (Protection of Rights) Act, 2019, and suggest a way forward for its implementation in the defence forces. The PPOC constitutes top officers of the three services and AFMS is the tri-service medical organisation of the armed forces. The group is headed by a senior officer in the Directorate General of Armed Forces Medical Services.
Recently, the Army Adjutant-General’s branch sought comments from its line directorates on the possibility of hiring transgenders, possible employment avenues, and the roles they could perform in the military. Among the suggestions received, some insisted on not providing any special concessions to transgenders in terms of military training, rigorous selection standards, or postings in difficult locations, whereas others highlighted administrative and logistical difficulties such as their housing and other infrastructure. There are concerns about recognising the spouses of transgender personnel and their cultural integration. The 2019 Act aims to protect transgender rights and prevent discrimination in various sectors, including employment.
Currently, the Armed Forces do not accept transgenders or homosexuals. Officials emphasise that recruitment of transgenders would be based on selection and merit, similar to existing practices. Administrative challenges, like housing and toilet facilities, especially in field locations, are also being considered. Another concern is that restricting transgender postings to peaceful stations could limit opportunities for others.
In August, a report to the Rajya Sabha by the Standing Committee on Personnel, Public Grievances, Law and Justice recommended that the Ministry of Home Affairs consider reservation benefits for transgenders in the Central Armed Police Forces, despite there currently being no transgenders employed in the armed forces.
This is a positive step as the transgender community has faced societal discrimination and marginalisation in many areas like access to social equality, social rights, education and employment opportunities, etc. Excluding transgenders from military service reinforces social stigma and inequality.
According to a National Human Rights Commission study in 2018, 96% of the transgenders face discrimination in employment, resulting in their limited access to decent career opportunities. The first ever study on the rights of transgenders unveiled that around 92% of transgenders lack access to engage in economic activities in India, with even qualified individuals being denied employment opportunities.
A study on the impact of allowing transgenders to serve openly in the US military suggests that embracing diversity can enhance the effectiveness and viability of the armed forces.
The Transgender Persons (Protection of Rights) Act, 2019, stipulates that both government and private entities are prohibited from engaging in discriminatory practices against transgenders in areas pertaining to employment, such as recruiting and promotion. The key arguments are:
All citizens have a duty to serve their country, hence transgenders have the right to serve their country.
There is no factual evidence to support the claim that transgenders are unfit for military service.
The Central Armed Police Forces, as well as the army and police forces, employ a distinct psychological approach to administration.
Recruitment of transgenders in the Central Armed Police Forces may encounter challenges due to practical considerations related to unconventional command philosophy.
Following a period of familiarisation and pre-induction training alongside soldiers will be challenging for transgenders.
The Indian Army as an institution has not undergone significant modernisation with respect to the LGBTQ community.
The apex court ruling in 2014 and 2018 with respect to transgenders may not be applicable to Indian Army as certain rights afforded to civilians may not extend to members of the armed forces.
The fundamental rights of the armed forces personnel may be subject to limitations as determined by legislation enacted by Parliament. This implies that the Army Act, Navy Act and Air Force Act have the capacity to curtail various liberties that are typically afforded to non-military individuals.
Indian Army may face several difficulties such as providing housing and other infrastructure for transgenders.
In 2014, the Supreme Court in the National Legal Services Authority case acknowledged transgenders as the third gender within the framework of the Constitution. The Yogyakarta Principal is quoted in the 2014 Supreme Court ruling and it provides a comprehensive framework for understanding and promoting human rights in relation to gender. In 2018, the Supreme Court rendered Section 377 of the Indian Penal Code as null and void, therefore eliminating the criminalisation of homosexuality.
The Kerala High Court has upheld the right of transgenders to self-determination and non-discrimination and directed the army to amend the National Cadet Corps Act, 1948, to include transgenders within six months in the Corps.
Historically, the transgender population in India held influential roles during the Mughal empire, serving as guardians of harems and assisting the royal family. They were regarded as astute and dependable, enjoying unrestricted access to all spheres of society. However, later, the British colonialists brought about a significant transformation. The colonisers viewed transgenders with aversion and failed to comprehend the respect accorded to them. Consequently, the British designated them as a “criminal tribe” and denied them civil rights.
A RAND study conducted in 2016 examined the potential implications of allowing transgenders to openly serve in the United States’ military. This study analysed policies and practices in 18 other nations that permit transgender troops to serve openly. The findings emphasise the importance of diversity-related training within military organisations and the development of a comprehensive transgender recruitment policy.
These insights provide valuable guidance for Indian policymakers, not only for increasing transgender representation in the armed forces, but also effectively addressing the opposition to inclusivity.
Courtesy : India Legal
Note: This news piece was originally published in indialegal.com and used purely for non-profit/non-commercial purposes exclusively for Human Righ Transgenders and Defence Forces
