Analysis of Transgender Persons (Protection of Rights) Bill, 2016

Recently, on 17th December 2018, Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2016. The bill was presented in the Lok Sabha by Thaawarchand Gehlot, the Minister for Social Justice and Empowerment.

The basic need of this piece of legislation was to empower and safeguard the interest of the 4.8 million Transgender community of India. Supreme Court in its judgment of 2014 first time recognized the rights of the transgender community. In the case of NALSA V. UOI Justice K.S. Radhakrishnan had ruled that “recognition of transgender as a third gender is not a social or medical issue but a serious human right issue.” 

However, even after judgment, the Transgender were not given the equal rights and opportunities, discrimination towards the community was widespread even after the judgment. Therefore, the parliament felt the need for legislation to be there to tackle the social exclusion of the transgender community.

The legislation made by parliament ensures the enforceability of Article 21 of the Constitution and provides the life of dignity to the transgender community on an equal basis as the other genders. In addition, it provides that a transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.

This Bill also prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas. Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.

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(Source: Google Images)

Although the bill respects the judgment of the Supreme Court which held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution by providing the clause for the ‘Self Determination or self-perceived gender identity’ by the transgender person.

But there is conflicting provision to this clause that there would be a ‘District Screening Committee’ comprising of a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person which would issue a certificate of identity to the Transgender person and such certificate would be necessary to invoke rights or remedies under this act. Therefore the term ‘Self-Perceived’ gender identity remains in an ambiguous situation.

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(Sources: Google Images)

The bill includes some terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons.  The issue is that these terms are not defined in the act anywhere which makes the act more ambiguous. However, these terms may be defined in the subordinate act but this makes the parent act less dynamic which not a good sign on the part of parliament on making laws. Also, there are certainly criminal and personal laws which invoke rights and punishments for the ‘men’ and ‘women’. Now, the question of law arises here that how these laws would be applicable to ‘transgender’. There is no provision addressing this issue.

This clearly shows that the Transgender Persons (Protection of Rights) Bill, 2016 has been passed in haste which makes some of its provisions self-conflicting, unclear and ambiguous.  Now Ministry of Social Justice and Empowerment should come up with a strong and affirmative child act which clears all the contentious issues of this act and cover all the loopholes in matters related to the treatment of transgender in the country.

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