Four days after the Transgender Persons (Protection of Rights) Bill 2019 was tabled in the Rajya Sabha on November 20, members of the transgender community marched in Delhi’s 12th Queer Pride Parade on Sunday to highlight their concerns about the proposed legislation.

The Bill is a far cry from the Supreme Court’s landmark 2014 judgement in National Legal Services Authority v. Union of India (or NALSA), which was applauded for its progressive stance on self-determination of gender. In fact, the passage of this Bill – which was cleared by the Lok Sabha on August 5 with little debate – will violate the rights of the very individuals it seeks to protect.

There are several problems with the proposed legislation.

According to the Bill, a transgender person must apply to the District Magistrate for a certificate of identity indicating their gender as “transgender”. If a transgender person undergoes surgery to change their gender either as a male or female, a revised certificate may be obtained. At this point, the District Magistrate will examine the “correctness” of the medical certificate issued by a Medical Superintendent or Chief Medical Officer.

This in direct violation of NALSA, which affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery. The new procedure will also subject transgender persons to intrusive medical scrutiny.

Adding red tape

Besides, the Bill provides for transgender persons to only receive identity certificates recognising them as “transgender”: individuals who wish to identify as a man or a woman would have to undergo sex-reassignment surgery. This will add several bureaucratic layers that a transgender person will have to navigate.

The Bill is silent on whether sex-reassignment surgery would be provided free or at subsidised cost even though this is the basis for the identity certification without which a transgender person would not be able to get official documents in their desired name and gender.

While the Bill prohibits discrimination, it does not explicitly include a definition of discrimination that covers the range of violations that transgender persons face. In 2018, the Supreme Court, while reading down Section 377 that criminalised homosexuality, had recognised that transgender persons face abuse and sexual assault, often at the hands of law enforcement officials. However, the Bill fails to extend protection to transgender persons who might face sexual abuse because the Indian Penal Code recognises rape in strict terms of men being perpetrators and women being victims.

While the Bill makes “sexual abuse” punishable, with imprisonment of only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes. By failing to plug the gap in the judicial protection of transgender persons who are victims of sexual abuse, the Bill legally sanctions discriminatory behavior and denies equal protection in law.

A protest in Mumbai in 2018. Credit: IANS

Another major flaw of the Bill is that it does not provide for reservation in education and employment for transgender persons. This goes against the mandate in NALSA, which had clearly stated that the state must take measures “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 judgment noted how transgender persons have been denied rights under Article 16(2) of the Constitution and discriminated against in respect of employment or office under the state on the grounds of sex. Hence they are entitled to reservations in the matter of employment, as envisaged under Article 16(4) of the Constitution. The state, it said, “is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied”.

The judgment had also noted that transgender persons are “entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.” The Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights as well as social security and pension, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.

Transgender people have faced discrimination for years, and it is dehumanising for them to be denied their dignity, personhood and, above all, their basic human rights. The Bill in its present form continues to push them into obscurity, making a mockery of their struggles by failing to secure for them their constitutional rights. The Rajya Sabha must recognise the severe discrepancies in this insufficient Bill and send it for further review

Ajita Banerjie is a gender & sexuality rights researcher based in New Delhi.