Transgender Rights in the wake of Transgender Persons (Protection of Rights) Bill, 2019. Sonali Pokhriyal takes a look.
The hastily passed Transgender Persons (Protection of Rights) Bill, 2019 in the Lok Sabha has been met with a strong backlash from the queer community and the allies across the country. To facilitate an understanding for the readers about the said bill and the retaliation towards it, a perusal of the Supreme Court’s 2014 judgement of National Legal Services Authority of India v Union of India, a repository of rights for the transgender community, becomes imperative. The Apex Court in the said decision not only declared that the transgender persons be treated as the “third gender” with a view to safeguard their rights but also emphasized on building an inclusive atmosphere which affords equal opportunities to them thereby allowing them to live with dignity, a requisite for any human to move beyond mere animal existence into a life full of potential.
Disguised as a step towards inclusivity, the aforementioned Bill is devoid of the intrinsic ethos and quintessence constituents of the NALSA judgement. `
The Right to Determine Self-Identified Gender
The 2014 verdict had progressively upheld the right of Transgender Persons to decide their self-identified gender. Yet, the current Bill puts forth a rather insensitive two-step process for legal gender recognition. An application is to be made to the district magistrate for a “transgender certificate”. Consequentially, such a certificate holder, upon undergoing surgery to medically change the gender to either male or female, shall make a fresh application to the district magistrate for issue of “change in gender” certificate. The district magistrate is to ascertain the correctness of such applications made, however, no guidelines to that effect have been laid down in the Bill. Amidst the prevalent Gender Dysphoria in the transgender community, is it right to put Transgender persons through a humiliating medical screening before a district magistrate who is not even sensitized to the complexities associated with the struggle of a trans person? With Right to Privacy becoming a fundamental right after the landmark decision of the Supreme Court in the case of Justice K.S Puttaswamy in August, 2017, the provisions of the Bill that call for a medical screening for a person to be allowed to identify as Transgender is not only morally questionable but legally flawed.
The Right Against Sexual Assault and Violence
The 2013 Report of the Expert Committee on the Issues Relating to Transgender Persons opined that sexual assault, sexual harassment and domestic violence laws must be made transgender-inclusive. Under section 376 of the Indian Penal Code, a man who commits rape is to be punished with an imprisonment for a term of not less than 7 years but which may be for life. However, Chapter VIII of the Bill in question states- “Whoever tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years with fine.” The provision is blatantly discriminatory as it treats sexual offenses against cis-women and trans-women differently rendering the very idea of according the “third gender” to the Transgender persons inefficacious. It suffers from conspicuous ambiguity as it fails to define any of these soi disant offenses. What must have been points of concern of individual meticulous scrutiny have been recklessly chipped in under one provision, it seems, only for the sake of it.
Lack of Reservations
Amongst many other directions, the Supreme Court had adjured the Central and State governments to treat the Transgender Community as Socially and Educationally Backward Classes thereby extending all kinds of reservations in cases of admission in educational institutions and for public appointments. The Bill fails to take into consideration this direction of the Court. Reservation is the structural tool and the constitutive means needed for integration of the transgender population that has suffered constant stigma and has been disparaged for countless years into the mainstream society.
Although the 2019 Bill makes no mention of the nuptial rights of Transgender Persons, it flows from one’s understanding of the judicial pronouncements like NALSA v UOI 2014, that in order to live a life of dignity and freedom, one must have the right to marry. In a very welcome and progressive decision, the Madras High Court in April 2019 held that a trans-woman is a bride under the Hindu Marriage Act by stating that for far too long, the transgender persons have been languishing in the margins, the Constitution being an enabling and dynamic document invites them to benefit from the social institutions already in place in the mainstream.
Nugatory Welfare Measures
Chapter IV of the Bill lays down welfare measures to be taken by appropriate governments. One glance at it is enough to reveal the hollowness of these “welfare measures”. They are ambiguous, obscure and certainly not actionable. It is only when a qualitative and quantitative course of action will be designed for not only welfare but also rehabilitation of transgender persons that they will be able to derive some benefit out of these provisions.
THE WAY AHEAD
The Transgender Persons (Protection of Rights) Bill, 2019 is a landmark piece of legislation. It is a product of years of struggle of the Indian queer community. There is no denying that it could use some alterations to be a more effective law that can actually protect the rights of the trans community. What, thus, becomes indispensable is more active participation of queer persons in the formation of amendments in the Bill. Addressing the grievances of the trans persons beneficially is possible only if we learn of the grievances first and with constant consultation with them chart a way of harmonizing them into the society. If the Legislature welcomes the recommendations of the community, indulges in a civic, cordial discussion with the beneficiaries of this law and accordingly calibrates the suggestions in the Bill, India will be able to provide a holistic enactment which shall become a solid reinforcement of human rights and shall lead the path of transgender rights across all countries of the world.
Sonali Pokhriyal is a New Delhi based digital marketer.