Tripti Bhusan and Vinayak Sharma

This piece seeks to bring to the fore the struggle of India’s transgender community in getting vaccinated against COVID, analyse the current vaccination policy from a legal lens, and suggest certain policy measures in this regard, thereby attempting to create a discourse on the same. 

INTRODUCTION

In the context of human rights, a grounded approach to health provides a set of clear principles for setting and assessing health policy and service delivery, targeting discriminative practices and unjust power relations that exist in a social setup. These clearly dictate that one must not be discriminated against when it comes to health, especially during grim situations such as the ongoing COVID-19 pandemic. However, the sad reality of today would show the challenges existing at the heart of inequitable health and sheer inaccessibility to healthcare faced by transgender persons all over the country, most notable in recent times being in respect of vaccination against the COVID. From lack of documentation to vaccine hesitancy to lack of awareness to rampant discrimination at the vaccination centres and many more, challenges faced by the transgender community in India in relation to their vaccination have been far too many. On top of that, the government’s statement in the Lok Sabha denying record of any data of vaccination of transgenders aged above 45 years, upon being asked a few months back, non-representation of the vaccination data of transgenders on the CoWIN dashboard, supplemented by inconsiderable visible action by the Central Government and many State Governments in terms of policy-making in this regard since then indicate a sad state of affairs, which makes it a matter of legal importance. A discussion on this matter becomes all the more relevant in backdrop of the rising COVID cases in many parts of the country again, a potential fourth COVID wave, and the specific vulnerability of this community in terms of contracting the virus, owing to hormone replacement therapies, treatments for HIV or tuberculosis or gender-affirmation surgeries which are undergone by many in the community. In this light, the present article attempts to bring to the fore the vaccination struggle of the community, analyse the current vaccination policy through a legal lens, and suggest certain policy measures in this regard, thereby attempting to create a discourse on the same.

PROCEDURAL BARRIERS IN CURRENT VACCINATION REGIME

The current vaccination process requires individuals to register online through the CoWIN portal. Alternatively, on-spot registration by directly walking in the vaccination centres has also been recognised as a valid mode of registering oneself, though it is generally more inconvenient than the former. However, the digital illiteracy & inaccessibility to smartphones prevalent among the transgender persons render them in a very plightful situation. Further, the current vaccination regime labels all those not identifying themselves as cisgender as ‘others’, which impinges the community’s right to express their self-affirmed gender-identity, implicit under Article 19(1)(a) of the Constitution of India. correctly. Additionally, it is notable that the current vaccination policy requires photo ID proofs, which is a rarity among the transgender community. Those willing to obtain their identification cards have to encounter a lot of challenges, even at the cost of compromising upon their fundamental rights at times, in forms of discrimination, the erroneous procedures adopted at many places which involve them to undergo physical examination and tests, which severely impinges their right to express their self-affirmed gender identity, as also explained above. In addition to this, there is also sheer lack of awareness and lack of clarity among the community as to the efficacy of vaccines, owing to the immunocompromised state of their bodies rendered by exposure to hormone therapies, HIV and complex sex reassignment surgeries, which has developed great hesitancy in getting vaccinated and considerable mistrust in the overall effect certain medicines and products will have on their health. The final nail in the coffin happens to be the prior experiences & historical discrimination faced by the trans community in the hospitals and medical centres, that dissuade many from getting vaccinated.

ANALYSING SOME MEASURES TAKEN SO FAR

Generally speaking, the vaccination rate among the transgender community appears to be significantly low. In this backdrop, this part of the article attempts to look at and analyse some of the measures taken by the stakeholders, viz., the Central Government, State Governments, local administrative authorities and Courts. In May 2021, the Ministry of Social Justice and Empowerment asked the States to ensure that the transgenders are not discriminated against at the vaccination centres. The Ministry also recommended organising awareness drives and separate vaccination booths for the transgenders. Further, the Central Government also issued a Standard Operating Procedure (SOP) on vaccination of persons without any prescribed identity proofs in May 2021, leaving the onus of identifying such persons and facilitating their vaccination on district and State-level officials. However, reports and articles published in 2021 itself after May, capturing conversations with some transgender persons reveal the unfortunate truth of discrimination at the vaccination centres at some places; lack of documentation significantly hindering vaccination; and, dilatory pace of the vaccination for transgenders even in states such as Uttar Pradesh which in August 2021 stood first in terms of number of vaccines administered across the country. A coverage by Business Standard released in September, 2021, revealing a lower share of the vaccinated transgenders as a percentage of their population, in comparison to their male and female counterparts, also noted the aforesaid observations. At the state and district levels, some State Governments and local authorities have taken some steps, for instance, Assam launched a separate vaccination drive in May 2021, separate vaccination sessions for transgenders were being organized in Haryana, followed by cities such as Bhubaneswar, Jaipur, Mumbai, Noida and Delhi. Some independent and private organizations, and Non-Governmental Organizations (NGOs) have also come to the rescue of transgendered persons, such as Citizens’ group starting a vaccination drive for transgenders, organisations comprising transgendered persons conducting vaccination awareness camps for their communities among other residents in Chennai, Covid Action Collab conducting vaccinations for transgenders among other vulnerable communities across five states, and Delhi NGOs conducting vaccination camps for transgenders. In the states of Tamil Nadu, and Rajasthan, the abysmal state of the vaccination of the transgenders came to be even addressed by their respective High Courts in their orders dated 2nd August, 2021, and 7th September, 2021, wherein the Madras High Court inter alia directed the Tamil Nadu Government for a complete vaccination of all transgender persons within three months from date of its order, and the Rajasthan High Court directed for the Rajasthan Government’s compliance with the guidelines for vaccination of transgenders framed by the Central Government, as also mentioned above, respectively. However, since most of these developments and this data are months old now, and there is largely no credible and readily available recent data signifying the transgender’s vaccination across the country till date which is also coupled with Governmental apathy at many levels in this regard as also observed above, it can be inferred that the state of transgender’s vaccination is abysmal, to say the least.

A LEGAL ANALYSIS OF THE STATUS QUO

The procedural barriers in the vaccination policy in forms of vaccine hesitancy, digital inaccessibility, lack of documentation, etc., enumerated above, coupled with a lackadaisical approach of majority of the stakeholders in this regard as noted above, considerably hamper the transgender’s fundamental right to health, which has time and again been held to be a crucial facet of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution through judgments such as Consumer Education & Research Centre v. Union of India, Bandhua Mukti Morcha v. Union of India, Devika Biswas v. Union of India and many others, wherein the Supreme Court has addressed the issue of right to health and has cast positive obligations on the State in enabling a better access of and promoting this right by adopting all necessary measures in this regard. The Supreme Court in the landmark case of NALSA v. Union of India also categorically held any kind of deprivation of access to healthcare and any discrimination in this regard to the transgender persons as being blatantly unconstitutional. Additionally, it is argued that these run afoul of the provisions of the recently-enacted Transgenders Persons(Protection of Rights) Act, 2019, which inter alia talks about recognition of gender identity, and prohibition of any kind of discrimination whatsoever against the transgender persons. Section 8 of the said Act obligates the Central and State Governments to take such welfare measures as are necessary to protect all kinds of their interests, while Section 15 specifically mandates the said Governments to take measures which are conducive to their right to health, however the structural roadblocks followed by little visible Governmental actions reveal how their right to health is being severely infringed, and how the Governments are significantly faltering in their duties. Moreover, additionally, lack of transparency in this regard also appears to reflect how the transgender community is not being equally considered in the vaccination plan, especially when they tend to have a higher vulnerability towards contracting COVID. It is argued that the same is highly discriminatory towards them, apart from impeding their fundamental right to health, and thus runs afoul of their right to equality guaranteed under the Constitution. In the NALSA Judgment (supra), the Supreme Court also highlighted the need for a due inclusion of transgender persons rights in all the laws and policies formulated by the State backed by a general affirmative approach of the State, given their specific vulnerabilities. The Court in this context specifically underscored the Central and State Governments positive role in framing various social welfare measures that are aimed at the community’s betterment. Therefore, it is argued that the vaccination policy should not just be inclusionary of the transgender community but instead be such that is aligned towards catering to their special needs. them.

AN INTERNATIONAL HUMAN RIGHTS LAW PERSPECTIVE

A brief examination of the history of transgender people’s rights reveals that the world has made great progress in recognising gender identity rights. However, these regional and national improvements do not compensate for the fact that transgender people continue to face some of the most ubiquitous types of violence and prejudice. States are entitled to enact laws that offer transgender people limited or arbitrary rights in the absence of specific universal criteria. In Nepal, transgender people can only register as “Others,” regardless of the gender they identify with, while India’s Transgender Persons Act, passed in 2019, denies transgender people their fundamental right to self-identification.

As the first international comprehensive enumeration of LGBTQI+ specific universal human rights criteria, the Yogyakarta Principles of 2007 & 2017 are revolutionary. They have been endorsed by Nepalese, Indian, and Brazilian courts, and they are frequently mentioned in regional and international human rights reports, but they are yet to be formally approved by the United Nations. Similarly, the United Nations has passed several resolutions recognising that transgender people should be guaranteed the right to recognition as well as the full range of rights and freedoms by the state, that they are subjected to heightened forms of violence, and that they are discriminated against. The following resolutions and principles, on the other hand, remain mere declarations and affirmations of a commitment to addressing LGBTQI+ rights in general, with no legislation or authoritative backing.

The right to liberty is open to “everyone,” according to Article 9 of the ICCPR, which encompasses all LGBTQ people. The right to health of transgender people has been recognised as a vulnerable category that requires positive State measures under Article 12 of the ICESCR. Similarly, under Article 2 of the Anti-Torture Convention, the Committee on the Anti-Torture Convention requires special measures to safeguard transgender people from torture, as well as efficient redress processes for transgender torture victims under Article 14 of the Convention.

Thus, it is clear that even the international human rights legal landscape enjoins the states to take positive measures that safeguard and promote transgender’s right to health, which reinforces the need for an overhaul in the current vaccination policy to include appropriate inclusionary steps which are conducive to the community’s right.

THE WAY FORWARD

As suggestible measures, attempts should firstly be made to collate the data pertaining to transgenders vaccination from all across the country so that at least a rough vaccination rate signifying the percentage of vaccinated vis-a-vis the unvaccinated may be calculated which will help gauge their present situation much better, and a comprehensive strategy in this regard may accordingly then be formulated. Further, vaccination awareness drives and campaigns should be regularly conducted in collaboration with the local authorities so that their fears, misconceptions, and concerns with respect to vaccination and the process may be allayed. Additionally, separate vaccination camps exclusively for the transgenders, as have also been conducted in the past, should be regularly conducted, as this will encourage unvaccinated lots from the community to get vaccinated. These may also be conducted by partnering with NGOs, civil society organisations, community-based and trans welfare organisations. In this respect, special collaborations with some volunteers from the community itself right at the grassroot level may be of help, where the peer educators which might for instance comprise vaccinated members from the community, may educate their unvaccinated counterparts about vaccination, its importance and also address and dispel other associated concerns that may be prevalent, since their own engagement in this regard is likely to also lend more credibility to the initiatives that the other stakeholders may be taking parallelly, apart from serving as a promising strategy in itself for a rise in their net vaccination rate. Besides, a look at the transgender’s rights recognition story reveals a saga of historical discrimination and denial of proper access to healthcare, which is a cause of concern and calls for changes, which may take place in form of gender sensitization trainings and other inclusionary steps at almost every possible level, so that the healthcare system is more transgender-friendly.

CONCLUSION

The aforesaid analysis highlights the myriad of problems associated with the current vaccination policy and the lackadaisical approach of the Governments and authorities across all the levels, and how the current vaccination regime is largely exclusionary to the transgender community, thereby impeding their legal rights across many levels, and from many lenses. As a welfare state, the Constitution, International Human Rights legal regime and even the recently-enacted Transgenders Persons (Protection of Rights) Act, 2019 clearly expect the State to take certain positive and affirmative measures that cater specifically to the transgender community and safeguard their right to health & access to healthcare. Policy suggestions mentioned above in this regard may be implemented, as affirmative measures to be taken to change the status quo surrounding the situation. It needs to be remembered that while COVID still continues to be an unfortunate reality and vaccination a pressing need, transgender’s plight cannot be turned blind eye at. This community has typically been failed by the majority of the stakeholders so far, which has already marred their hopes, thus taking special care of them and their legal rights by not merely strategizing and formulating the policies but also timely implementing them, will help not only in garnering their trust in the system, but in also making the right to health truly egalitarian for everyone.

Vinayak Sharma is a fourth-year law student at Delhi Metropolitan Education, Guru Gobind Singh Indraprastha University, Delhi. 

Tripti Bhushan is an Author & currently serving as a Lecturer at O.P Jindal Global Law School, Sonipat, Haryana, India. She is also the recipient of the International Award as Emerging Scientist in the field of law. Recently she has won Research Excellence Award at Jindal Global Law School for her excellent contribution in Research & Publication in 2021. Lucknow. She has authored two books namely “Looking into the Question of terrorism in India through Prism of International Law” and  ” Facets of Media law & IPR”.