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In a landmark judgment passed on April 15, 2014, the Supreme Court held that transgender persons are to be recognized as a third gender and are entitled to the same Constitutional and legal rights as any other citizen. In the case of NALSA V Union of India, the Supreme Court, while calling for legislation to safeguard the rights of transgender persons, held,
“Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.”
Five years later, this legislation has finally seen the light of day, with both Houses of Parliament signing off on the The Transgender Persons (Protection Of Rights) Bill, 2019. The Bill has now received Presidential assent and has been notified as the Transgender Persons (Protection Of Rights) Act, 2019
While the NALSA judgment was wholeheartedly welcomed by the transgender community, the same can hardly be said about the 2019 Act. On closer inspection, it appears that the Act fails to fulfill the purpose of its enactment i.e to empower transgender persons.
Definition and Identification as Transgender
First of all, the Act defines a transgender “as one whose gender does not match the gender assigned at birth.” It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. The purview of the term’s definition is very wide and is not exclusive to just transgenders alone.
Further, the Act states that if a transgender person undergoes surgery to change gender, then such a person may make an application to the District Magistrate (DM), “along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery…”
Further, if the DM is satisfied with the “correctness of such certificate”, he/she will later issue a certificate indicating a change in gender of the person.
This section is problematic for two reasons. Firstly, the requirement of applying to a DM is a direct and gross violation of the NALSA judgment, which held that “any insistence for SRS for declaring one’s gender is immoral and illegal.” The judgment clearly stated that self-determination of gender is quite integral to one’s personality and dignity. Secondly, the Act gives the DM immense power which could lead to arbitrariness and misuse.
Senior Advocate and co-founder of Centre for Law and Policy Research (CLPR) Jayna Kothari, who is an ardent advocate of transgender rights, sheds more light on this aspect. She says,
“The main issue with the Bill is that it does not recognize on the “self identification of gender” as per the NALSA Judgement. The Supreme Court judgment clearly states that any form of SRS is illegal. In that case, why do you need documents to prove that you are a transgender? What if the authorities come up with a bodily screening under the act? In other parts of the world, a self-declaration is enough to prove that one is a transgender.”
Inadequate penal provisions
The Act seeks to eliminate all kinds of discrimination against transgender persons by other persons or establishments. Interestingly, it has failed to prescribe a punishment for the same. The absence of a specific punishment for discrimination would defeat the purpose of having such a provision.
Further, under Chapter VII of the Act, which deals with offences and penalties, the term “sexual abuse” has not been defined. Moreover, this Chapter neither mentions nor defines the term “rape”. Even more disconcerting is that the punishment for sexual abuse against transgenders is imprisonment, which should “not be less than six months but which may extend to two years and with fine”.
At this juncture, it is pertinent to point out that under the Indian Penal Code, punishment for rape against women is imprisonment is “not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.”
“Rehabilitation” of Transgenders
One of the provisions of the Act state that, if immediate family is unable to care for a transgender person, the person would be placed in a “rehabilitation centre” pursuant to the order of a competent court.
A mere perusal of this section is testament to the fact that the same is violative of Article 21, which guarantees the right to life with dignity. The Act fails to recognize every adult transgender as a responsible individual, capable of making their own decisions.
Though Section 15 of the Act states that the Central government will provide for medical care facility including sex reassignment surgery and hormonal therapy for transgender persons, there is still some confusion as to whether such services would be provided for free or at a subsidized rate.
Additionally, reservation for transgender persons does not find a place in the Act. In the NALSA judgment, the Supreme Court had held,
“We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
The Act further fails to provide for a provision of “separate public toilets and other facilities” for transgender persons, as directed by the Supreme Court.
As Kothari points out, Parliament seems to have passed the legislation in a hurry.
“What is the need to bring up the Bill in such a hurry? Why are they not referring the Bill to a select committee? There is no point of a legislation if the community itself rejects it.”
Read the Transgender (Protection of Rights) Act, 2019: