Introduction
The Transgender Persons (Protection of Rights) Bill, 2019 (hereinafter “Bill”) was passed by the Parliament of India on 26th November, 2019. It has nine chapters, each pertaining to independent measures undertaken to protect the rights and interests of Transgenders (TGs), while mandating the central and state government to promote their welfare in education, employment, healthcare, access to, or enjoyment of goods and facilities etc.[1]
This article is an attempt to analyse and identify disparities in the Bill when compared with the Supreme Court judgment of NALSA v. Union of India[2] and other international norms. The article further analyses certain socio-cultural aspects prevalent in the society that have been side-lined by the drafters.
Incomplete Welfare Schemes
The Object of the bill suggests that the bill was formulated in furtherance of the Supreme Court decision in NALSA v. Union of India[3].In the light of this, it is imperative to note that the Court came out with nine guidelines (mentioned in para. 129 of the judgment), for directing the state to protect, maintain and promote TGs rights. However, a few of these guidelines have been completely overlooked by the Bill. For example, as per Chapter IV of the bill, the centre and states do not have obligations under the act to promote awareness about the TG community, although, the SC had directed them to do so. However, this can be cured by further guidelines that will be laid down for the welfare of TGs as Section 8(1) states that the governments are mandated to “take steps to secure full and effective participation of transgender persons and their inclusion in society”.[4]
Intersex rights
The definition of Transgender[5] is an elaborate and inclusive one and it also brings within its ambit the intersex community. The difference between intersex and Transgender community is that intersex is a condition identifiable at birth and is medically evaluative.[6][B1] There are certain internationally recognized rights that have been ignored by the bill, thus, doing more harm than good to the intersex community by bringing them within the ambit of the bill as it fails to protect the rights such as right to say no at the time of surgery, right to refusal of forceful surgery etc.
Right of Recognition and Certification of Identity
Section 4(1) of the bill has been worded in an ambiguous manner, it states that “A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act”.[7] On its facial reading, it suggests that a TGs’ right of recognition has been subjected to the provisions of the Bill, this defeats the object of the whole exercise and essence of the NALSA judgment as the right of recognition is to exist irrespective of other provisions in the Bill.[8]Further, Section 4(2) reads that a person recognised as a TG under Section 4(1) “shall have a right to self-perceived gender identity”.[9]This essentially means that a TG will not have a right of recognition unless such a right is accorded with the provisions of the Bill. To simplify, the bill leaves a question that, if we assume that a TG is unable to accord to the provisions of the Bill which are yet to be substantiated by “appropriate governments”. Will that person not be entitled to recognition under the welfare schemes implemented for the TG’s benefit?
It is important to note that in 2015 United Nations[10] recommended that all such standards for determination of TG status are to be removed for grant of identity. This, at the first-place questions validity of Section 6, wherein, district magistrate is to grant certificate on grounds of compliance that will be laid down by “appropriate government”.
Application Procedure
The Bill lays down a mechanism for a TG to “make an application to the District Magistrate (DM) for issuing a certificate of identity as a transgender person”.[11] This certificate will act as a proof of a person’s gender identity before availing the benefits provided by the Bill. This mechanism was debated[12] upon at the Parliament before the Bill’s passage since the mechanism is seemingly absurd. It is so because the DM is not an appropriate forum to decide upon the intricacies of who may be deemed as a TG person, in accordance with its definition provided under Section 2(k) of the Bill. Further, it is also important to note that such standards are to be removed all together, however, if the need for the same is not felt, a more feasible mechanism would be to take assistance of medical officers who hold much more expertise to determine whether a person is a TG or not.
Rights of Hijra Houses and discrimination in terms of Punishment
One important aspect which is to be highly criticized is that the bill fails to acknowledge the socio-cultural reality of Hijra houses which is an age-old tradition in India. As per Section 12, a child can only be separated from his birth family after the order of the court. Further, in situations where the family is unable to take care of the child, he/she is to be shifted to rehabilitation centre i.e. this provision puts an obstacle on the rights of the Transgender community to adopt the child at the time of his birth for the welfare and upbringing of the child within an identical community.
Additionally, Chapter VII which deals with offences and punishment is also in great disparity with the normal penal laws. It lays down the low term of punishment for offences against a TG, such as for sexual abuse the term of punishment is up to two years. However, under the Indian Penal Code such punishment extends up to seven years. It is to be noted that the TG community has been suffering from all forms of abuses and tortures for ages, thus necessitating the punishment to be higher as a means of deterrence.
Provisions of Appeal and National Redressal Commission
The Bill fails to discuss the provision for appeal against the decisions of the DM.[13] In a situation where the DM does not deem a person qualified as a TG, there will be no legal recourse available to him. This is substantiated by Section 21, which explicitly states that no suit or prosecution will lie in respect of anything which is in good faith done or intended to be done in pursuance of this Act and any rules made thereunder.
Further, National Council for Transgender Persons formed under Section 16 has been empowered to “redress the grievances of transgender persons”[14] and as Section 21 expressly bars proceedings in court, this is the only recourse available to the aggrieved party. Though, Certification is a good way of identifying TGs competent to avail the schemes, however, the way in which such certificate is being provided has a gnomic statutory framework which is further enhanced by lack of supplementary guidelines as of now.
Additionally, it is also to be noted that the National level Commission also lacks adequate representation of TGs in the panel. Out of more than 20 members in the commission only 5 of them are representations from the TG community.[15]
In-comprehensiveness & Functions of Appropriate Government
The Bill is endowed with words like “as may be prescribed”, this implies that the act is not comprehensive as of now. “Prescribed”, as per Section 2(j), means “prescribed by rules made by the appropriate Government under this Act”.[16] The Bill mandates the Governments to carry out schemes for promoting the rights and general welfare of TGs, and lays down comprehensive guidelines for grant of certificate as well as for the welfare schemes. In this situation, it is to be noted that no clarity has been given in terms of division of responsibility between the Central Government and the State Government. This will further lead to disparities in terms of grant of TG certificates under Section 4 and other schemes and practises which might differ from state to state. This ambiguity will also create issues while dispute redressal by National commission as the parameters and measures will differ from state to state and there will no state body to resolve it.
Conclusion
The Transgender Bill may turn out to be a failed attempt at what it aims to achieve. The loop-holes identified and discussed above create conditions which are detrimental to the interest of TGs, countering the idea of protecting the same. Although the Bill consists of elaborate provisions directing appropriate Governments to implement and carry out schemes for promoting TGs, the root problems seem to be camouflaged behind the division of responsibility that has been in an ambiguous manner and incomprehensive provisions. Without adequate clarity, recognition on these crucial aspects of the bill, welfare and protection for TGs seems like a distant dream. Further, as Section 23, lays down time period of 2 years for curing any all difficulties in the act,[17] it is important that these issues are rectified as early as possible.
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References
[1]The Transgender Persons (Protection of Rights) Bill, Section 3, 2019.
[2]NALSA v. Union of India, AIR 2014 SC 1863.
[3]Ibid.
[4]The Transgender Persons (Protection of Rights) Bill, Section 8(1), 2019.
[5]The Transgender Persons (Protection of Rights) Bill, Section 2(k), 2019,
[6] India: Transgender Bill Raises Rights Concerns, Human Rights Watch, (July 23, 2019 1:06 AM EDT), https://www.hrw.org/news/2019/07/23/india-transgender-bill-raises-rights-concerns.
[7]The Transgender Persons (Protection of Rights) Bill, Section 4(1), 2019.
[8]Supra note 2.
[9] The Transgender Persons (Protection of Rights) Bill, Section 4(2), 2019.
[10] Report of the Office of the United Nations High Commissioner for Human Rights, Human Rights Council, Twenty-Ninth Session, (A/HRC/19/41), https://undocs.org/A/HRC/29/23.
[11] The Transgender Persons (Protection of Rights) Bill, Section 5, 2019.
[12]Akshita Saxena, Breaking : Parliament Passes Transgender Persons (Protection of Rights) Bill, 2019, Live law, https://www.livelaw.in/news-updates/breaking-parliament-passes-transgender-persons-protection-of-rights-bill-read-bill-150178.
[13]TNM Staff, Amid Opposition from Trans Community, Rajya Sabha passes Transgender Persons Bill, The News Minute (26thNov. 2019), available at- https://www.thenewsminute.com/article/amid-opposition-trans-community-rajya-sabha-passes-transgender-persons-bill-112971, last seen- 27/11/2019.
[14] The Transgender Persons (Protection of Rights) Bill, Section 17(d), 2019.
[15] The Transgender Persons (Protection of Rights) Bill, Section 16, 2019.
[16] The Transgender Persons (Protection of Rights) Bill, Section2(j), 2019.
[17] The Transgender Persons (Protection of Rights) Bill, Section 23, 2019.
Submitted by,
Ashwin Vardarajan & Shatakshi Tripathi,
Year II & Year IV (respectively),
Symbiosis Law School, Pune
(Image used for representational purpose only.)