PROGRESSIVE OR REGRESSIVE? AN ANALYSIS OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
Author: Pavitra Mani, Sastra Deemed University.
The Transgender community has battled exclusion and ubiquitous aversion from all sectors of the society for a very long time. Their struggle to survive starts from childhood. Most of them are abandoned by their families, are denied education and employment. To earn their living, they are forced into begging, sex work, and dancing at the wedding to earn their living. Medical care is denied to them including prejudice from the doctors. We live in a transphobic society that is reflected in the health care sector too.
The attempts of the Government to address transgender rights in India have been a blue flunk. Though the NALSA Judgment of 2014 was the first major attempt to address trans person rights in the country whereby it laid the foundation, since then, the past five years have been depressing.
Fast forward to 2019, the Transgender Persons (Protection of Rights) Bill, 2019 (hereinafter referred to as the Bill) has been passed by the Legislature after many amendments to the previous Bill. This Bill is nothing but State-sanctioned discrimination under the guise of protection. The Bill was passed by the Lok Sabha on August 5, 2019, and the transgender community termed the day as ‘Gender Justice Murder Day’. This Article aims to establish how the Bill is in conflict with and in direct violation of the NALSA Judgement delivered by the Supreme Court, also focusing on the highlights of the Bill.
WHAT LED THE CENTRE TO INTRODUCE THE BILL?
In National Legal Services Authority v. the Union of India(hereinafter referred to as the NALSA case), the Supreme Court observed that the transgender community has a right to be treated as ‘third gender’. In the above-mentioned case, it was held that a person’s gender identity is an integral part of one’s personality and is one of the most basic aspects of dignity and freedom of an individual. Certain Guidelines were issued by the Apex Court in this Judgement which was to be followed by the Central Government to ensure the protection of the members of the transgender community. The Judgment received widespread praise and was hailed by the media.
In 2015, a Private Member’s Bill on transgender person rights was introduced by Siva of the DMK that was passed in the Rajya Sabha and was transmitted to the Lok Sabha. This bill was never taken up for discussion. In 2016, the Lok Sabha introduced its own Bill to protect the transgender community’s rights. This Bill was criticized by the community activists for several reasons, one of which was the definition provided for transgender persons. It was also criticized for taking away the right to self-determination by establishing screening committees consisting of social workers, doctors, etc for determining whether an individual is a transgender or not. The Parliamentary standing committee produced a report on the Bill in July 2017 which was rejected by the Government.
The Government in 2018 came back with the Bill in Lok Sabha and passed it with 27 amendments that included a different definition of a transgender person. A provision regarding setting up of a district screening committee was provided in the Bill. Rajya Sabha did not pass the Bill. It lapsed with the dissolution of the Lok Sabha for the general elections in May. After the BJP won a second term, the Bill was introduced in the Lok Sabha again and passed on Aug. 5, 2019. The Bill was also passed by the Rajya Sabha on November 25, 2019, and gained Presidential assent on December 5, 2019.
HIGHLIGHTS AND SHORTCOMINGS OF THE BILL
Firstly, the definition of a transgender person in the Bill is unsatisfactory. Section 2 (k) defines a transgender person as one whose gender does not match the gender assigned at birth and includes transmen and trans-women. Persons with intersex variations are also included within the scope of the definition. Though a separate definition for intersex persons has been incorporated, it has been done purely to satisfy the international groups. Since in the very next line it has been included with the definition for ‘transgender person’. This inclusion is controversial as an intersexual person may or may not identify themselves as transgender. Many distinct issues are faced by intersex persons starting from forced ‘corrective’ operations on intersex infants to persistent health issues in which the medical system is both inadequate to handle and is inaccessible to a large number of intersex persons. Thus, the Bill is unsympathetic towards the intersex community and its issues.
Furthermore, according to the Bill, a transgender person must make an application to the District Magistrate along with the prescribed documents to receive a certificate of identity. This process of applying for a certificate is contrary to the spirit of the NALSA Judgement which identifies self-determination of gender. Moreover, if a transgender person is to change their preferred gender to male or female, the Bill jumps back to the archaic understanding, enforcing the need to undergo a Sex Reassignment Surgery (SRS) to change their gender identity to either male or female in accordance to their preference. Furthermore, a procedure for appeal has not been mentioned in the Act, which means that due to bias, any corrupt Government employee can intervene in the process, and no opportunity for appeal would be given.
Also, the Bill prohibits discrimination against transgender persons in the following matters:
- Education: Education, sports and recreational facilities shall be provided for the transgender persons by the Government-funded or recognized educational institutions without discrimination.
- Employment: Transgender persons cannot be discriminated by a government or private entity in employment matters covering recruitment as well as promotion. A complaint officer is required to be appointed in every establishment to address the complaints under this Act.
- Healthcare: Transgender persons should be provided with health facilities including HIV surveillance centers, and sex reassignment surgeries by the government. They must be provided with a comprehensive medical insurance scheme.
- right to purchase/reside/occupy property: Transgender persons have the right to reside and be included in their household. On the orders of a competent court, the person may be placed in a rehabilitation center if the immediate family is unable to take care of the transgender person.
- right to movement
- opportunity to stand for public or private office
- access to Government or private establishment in whose custody or care a transgender person is.
While the same has been guaranteed under the Constitution of India, a specific provision may act as a deterrent for any person from discriminating against transgender persons. The Bill fails to define ‘discrimination’ in the context of the transgender community. The Bill fails to prescribe a penalty for a person who discriminates against a transgender person. If a Transgender person faces discrimination, he is not entitled to any monetary compensation. The protection sought to be given to transgender persons will be quite ineffective in the absence of any relief in this regard in the Bill.
The Bill fails taking steps to treat the transgender community as socially and educationally backward classes and extend them reservations which were mandated in the Judgement. The reservations for transgender and intersex persons in education and employment are necessary for their social inclusion and integration. Given the controversy around reservations in India, it is improbable that the transgender community will be considered in that category any time soon.
Forcing Transgender persons to indulge in bonded labour, denying them the right of passage, forcing them to leave household or village, harming them or physical or sexual abuse, etc are some of the specifically recognized offences against transgender persons. These offences are punishable with imprisonment which shall not be less than six months but may extend to two years and fine. The punishment of two years for sexual abuse has caused outrage from the transgender community as sexual offences against cis-women attract higher punishment which may extend to life imprisonment. This discrimination is in violation of Article 14 of the Constitution and is also in violation of Article 21 of the Constitution as it treats the transgenders as lesser humans violating their right to dignity.
Moreover, the Bill does not talk about issues pertaining to civil rights, such as marriage, civil partnership, adoption and property rights, thereby depriving transgender persons of their fundamental rights and constitutional guarantees. These rights are critical to transgender persons and are an essential component of democracy. Also, without any legal recognition from the State, many are engaged in marriage-like unions.
Further, the Bill provides for the formation of a National Council for Transgender Persons that will advise the Government on formulating policies for the community, and monitor the implementation, and address grievances, among others. The drawback here is that there has been only a representation of 5 persons from the transgender community among the 30 members of the Council.
It is also important to provide emphasis on the provisions of the Bill which seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centers, and sex reassignment surgeries. It also states that the Government shall review the medical curriculum to address the health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
The Bill does not contain any provision regarding the non-disclosure of information received from the community during the application or issuance of the certificate, etc. However, this aspect may be dealt with in India’s proposed data protection regime (namely the Personal Data Protection Bill, 2018) which classifies transgender & intersex status as ‘sensitive personal data’.
History has always ignored the transgender community. Erased their stories, stories of the state, majoritarian forces killing, raping and stripping them naked. Their identities have mutilated to an extent that the word violation would be shortchanging the narrative. The unfairness with which history has dealt with the transgender community can only be rectified through an active effort of the state, to recreate a discourse, the primary requirement being consultations with the community.
The Transgender Persons (Protection of Rights) Bill, 2019 does not move towards a progressive realization of rights of the community and has disappointed many. The Government, even in its third attempt failed to come up with a comprehensive transgender protection Bill curtailing the efforts made by the Judiciary and the International community.
constitutionality is challenged in courts and the law is struck down, the
Legislation will prevail over the Court’s Judgement. As the Bill has been
enacted without any amendments, it is an increased complication for the already
distressed community living in India.
 National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438.