In the evolving landscape of reproductive rights, the intersectionality of gender identities and abortion rights in India demands critical examination. Recognising the multifaceted challenges faced by transgender individuals in accessing healthcare, this essay explores the imperative for specific legal provisions safeguarding their reproductive autonomy. In a country where societal norms often marginalise transgender communities, the discourse on abortion rights becomes inherently linked to broader conversations on inclusivity and justice.
Yet, within the existing legal framework, affording transgender individuals the right to abortion is attainable, a standpoint this essay contends.
What are the issues faced by the trans community?
The presence of transgender individuals in the Indian subcontinent can indeed be traced back to ancient times, as evidenced by mentions in ancient Hindu texts. Despite this historical acknowledgement, contemporary Indian society continues to pose significant challenges for the transgender community, rendering them one of the most vulnerable groups.
Stigmatisation surrounding transgender identity remains pervasive in today’s society, making it difficult for transgender individuals to assimilate into mainstream culture. This social stigma often forces them to live in isolation, estranged from broader societal acceptance. Discrimination and oppression against the transgender community persist, exacerbating their vulnerability. Recently, it surfaced in the form of a petition filed by a transwoman teacher in the Indian Supreme Court against her dismissal allegedly because of her transgender identity.
Moreover, a pressing issue faced by transgender individuals is the lack of access to proper medical care. Transgenders often encounter difficulties in obtaining appropriate healthcare services, which should encompass not only general medical needs but also specific healthcare related to gender identity.
History of transgender rights in India
The NALSA judgment, officially known as the National Legal Services Authority v. Union of India, marked a significant milestone in recognising and affirming the rights of transgender individuals in India. In this landmark ruling, the Supreme Court acknowledged the need for legal recognition of the transgender community.
The Court’s directives encompassed various measures for transgender individuals, including the establishment of separate HIV Sero-surveillance Centres, the resolution of social challenges without requiring gender confirmation surgeries, the provision of medical care and distinct facilities, the formulation of social welfare schemes, the promotion of public awareness for inclusivity, and the restoration of respect and historical significance transgenders in society.
However, one key aspect of the judgment was the shift from a ‘biological test’ to a ‘psychological test’ for identifying gender. The court emphasised that gender identity should not be solely determined by biological factors but should also consider an individual’s psychological sense of self. This change in perspective aimed to provide a more inclusive and comprehensive understanding of gender. Moreover, the NALSA judgment upheld the right of transgender individuals to self-identify their gender. The Supreme Court directed both the Central and State governments to legally recognise the self-identified gender of transgenders, emphasising that any form of discrimination against them would violate their fundamental rights.
By recognising the rights of transgenders and advocating for their legal recognition, the NALSA judgment played a crucial role in promoting inclusivity and safeguarding the fundamental rights of transgender individuals in India.
A welcome step by the Indian Supreme Court
The judgment in X v. Health & Family Welfare Department, particularly the statement authored by Justice D.Y. Chandrachud, has significantly brought abortion rights into the spotlight in India.
The case specifically dealt with the abortion rights of ‘unmarried’ women under the Medical Termination of Pregnancy Rules, 2003 (MTP Rules), and the Medical Termination of Pregnancy Act, 1971 (MTP Act). MTP Act and MTP Rules are the legislations which lay down the laws and rules for abortions in India. In this case, the court affirmed that unmarried and single women have the reproductive right to abortion under section 3(2)(b) of the MTP Act, which allows termination by a registered medical practitioner for a prescribed category of women, as per the MTP Rules, if the pregnancy duration is between twenty and twenty-four weeks, provided at least two registered medical practitioners are involved. Similarly, it was held that Rule 3B of the MTP Rules explicitly includes unmarried and single women under 3B(c), addressed under the ‘change of marital status’ category. Rule 3B lists down the category of women eligible for abortion as per section 3(2)(b) of the MTP Act.
However, what stirred controversy and drew attention to the case was the inclusive language used by Justice D.Y. Chandrachud. The statement, “…we use the term ‘woman’ in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies,” marked a crucial departure from traditional interpretations. By expressly including individuals beyond cis-gender women in the definition of ‘woman,’ the judgment sought to expand the scope of the MTP Rules and MTP Act to encompass even transgender individuals.
Although the appellant’s prayers did not specifically address the issue of gender, the Supreme Court’s proactive stance in interpreting and expanding the scope of the MTP Act can be seen as an instance of judicial activism.
This judicial activism is considered essential as it broadens the ambit of the MTP Act, ensuring that transgender individuals have access to proper medical facilities and can exercise their reproductive rights without hindrance. The court’s decision reflects a commitment to inclusivity and underscores the importance of adapting legal interpretations to contemporary understandings of gender and reproductive rights.
A case for transgender abortion rights
Apart from the X v. Health & Family Welfare Department ruling, which broadened abortion rights for unmarried and single transgender individuals, there exists the potential for the extension of these rights to encompass all categories of transgender persons, mirroring the existing rights afforded to cisgender counterparts.
The definition of ‘woman’ remains unspecified in both the MTP Rules and the MTP Act. Rule 3B of the MTP Rules outlines the ‘categories of women’ eligible for abortion under section 3(2)(b) of the MTP Act but does not explicitly address whether this includes transgender individuals. In cases of ambiguity, the ‘mischief rule’ is applied, akin to the ‘purposive’ interpretation of a law, which seeks to identify the intended remedy for the law’s mischief or the purpose.
The mischief aimed to be addressed by the MTP Act was the liberalisation of abortion provisions for health, humanitarian, and eugenic reasons, as stated in the Statement of Object and Reasons of the MTP Act. Notably, the Act and Rules refrain from specifying ‘woman’ as exclusively referring to biological gender, utilising the term more broadly.
Furthermore, drawing from the NALSA judgment, which acknowledges that transgenders can self-identify as men, women, or third gender, it is arguable that transgenders identifying as women should fall within the purview of the MTP Act. Also, the same judgment emphasises the responsibility of Central and State Governments to ensure proper medical care for transgenders. Given that abortion is an integral aspect of medical care, it can be contended that the government should extend facilities for abortion to transgender individuals.
Additionally, the prohibition against discrimination under section 3(b) of Transgender Persons (Protection of Rights) Act, 2019 explicitly states that no person or establishment is allowed to discriminate against a transgender individual, particularly concerning healthcare services. This includes actions such as denying or discontinuing healthcare services or subjecting transgender individuals to unfair treatment in the realm of healthcare. Moreover, the government is mandated under section 15 of the same Act to address transgender healthcare by reviewing medical curricula for their specific needs and facilitating increased access to hospitals and healthcare institutions.
The way forward
It is imperative for the government to introduce an amendment to the MTP Act and MTP Rules to explicitly incorporate transgender individuals within the scope of these legislations. Drawing inspiration from the recent post-colonial criminal law legislation Bharatiya Nyaya Sanhita, where ‘transgender’ is included under the term ‘gender’ under section 2(10), a parallel approach could be adopted within the MTP Rules and MTP Act. This would entail incorporating transwomen within the definition of ‘women,’ ensuring equitable reproductive rights.
Moreover, adopting such an approach aligns seamlessly with the progressive trajectory of the evolving legal landscape, thereby safeguarding and acknowledging the reproductive autonomy of transgender individuals. By explicitly recognising and protecting their reproductive rights within the framework of the MTP Act and MTP Rules, this proposed amendment reflects a commitment to inclusivity and the principle of equal rights for all. It signifies a pivotal step towards dismantling barriers that may disproportionately affect transgender individuals, affirming their right to make informed choices about their reproductive health. This proactive legal stance not only promotes societal equality but also underscores the government’s commitment to upholding the fundamental rights of every citizen, regardless of gender identity.
