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Transgender Persons Act, 2019 violates the fundamental rights it seeks to protect: Another challenge mounted in Supreme Court

The Supreme Court on Friday issued notice on the plea and tagged it with a similar petition filed earlier this year by Assam's first transgender Judge, Swati Bidhan Baruah.

Shruti Mahajan

Another petition challenging the validity of the Transgender Persons (Protection of Rights) Act, 2019 has been filed before the Supreme Court. The apex Court, on Friday, issued notice on the same while tagging it with a similar plea.

Notice was issued by a Bench of CJI SA Bobde with Justices AS Bopanna and Hrishikesh Roy on the plea filed by some members of the transgender community, which has now been tagged the case moved earlier by Assam's first transgender Judge, Swati Bidhan Baruah.

The latest instant petition highlights that while the 2019 Act was enacted to protect the rights of the transgender community, it in fact violates the fundamental rights of transgender persons.

The Act which received the President's assent in December 2019 goes against the legal principles laid down by the Supreme Court in the 2014 NALSA case as well as the case Navtej Singh Johar, apart from violating the right to privacy which was declared a fundamental right in the KS Puttaswamy judgment.

"...(all the mentioned judgments) guarantee that the right to self-determine one's gender identity is an integral part of one's right to life, dignity and autonomy and this basic guarantee is violated in the 2019 Act."
the petition states.

It is argued that Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the 2019 Act violate the fundamental rights of life, liberty, privacy, autonomy and dignity guaranteed by the Constitution. Therefore, it is contended these provisions should be declared ultra vires Part III of the Constitution.

"The 2019 Act was enacted with an objective to provide for the protection of rights of transgender persons, but in reality it violates their fundamental rights and goes against the judgements of this Hon'ble Court."
The petition further adds.

It is pointed out that on the one hand, the Supreme Court, in the 2014 NALSA judgment, had held that a person shall have the right to determine their gender identity and the same would form part of their right to life with dignity. However, the 2019 limits this very right by mandating that a trasngender person has the right to be identified as transgender, thereby closing the avenue for the person to identify as either male or female.

In fact, it was held in no unequivocal terms by the Supreme Court that the right to identify one's gender and sexual orientation is integral to their personality and their basic rights and that nobody shall be forced to undergo any medical procedure as a requirement for legal recognition of this identity. This aspect is contradicted by the 2019 Act which requires transgender persons to undergo medical surgery to identify with a gender they choose, the petition points out.

"This violates the decision of this Hon'ble Court in NALSA vs. Union of India, which declared that transgender persons have a right to self-identify their gender as an aspect of their right to personal liberty and personal autonomy under Article 21 of the Constitution, and, to express their self-identified gender through dressing, words and behavior in exercise of their right to freedom of speech and expression under Article 19(1) (a)", reads the plea.

It is highlighted in the plea the provisions in the Act are in direct contravention of the legal principles identified and laid down by the Supreme Court, particularly in the NALSA judgment. Therefore, the Constitutional validity of these provisions of the Transgender Persons (Protection of Rights) Act have been challenged before the Court.

This petition was filed though Advocate Anandita Pujari. Senior Counsel Jayna Kothari represented the petitioners before the Court.

Earlier, Assam's first transgender judge, Swati Bidhan Baruah, had challenged the Constitutional validity of the Act and in January this year, the Supreme Court Bench headed by CJI SA Bobde had issued notice on the same. This fresh petition has been tagged with Baruah's petition.

Read Order:

Grace Banu Ganesan vs UOI - 12.06.2020.pdf
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