After gathering ubiquitous criticism for its previous bills pertaining to transgender rights, the Government has yet again come up with a new Transgender Persons (Protection of Rights) Bill, 2019 (the Bill from herein).[i] One of the many commonalities between the Bill and its predecessors is that all of them in the name of protecting transgender rights actually dehumanise and humiliate transgenders living in India. The Bill was passed by the Lok Sabha on 5th August 2019 and the transgender community labelled it as “Gender Justice Murder Day”.[ii] Now the Bill has been passed by the Rajya Sabha without any amendments and is awaiting the President’s assent. This paper is an attempt to throw light upon the main provisions of the Bill and analyse whether or not they pass the test of constitutionality.
Firstly, the Bill puts forth an unintelligent definition of transgenders. Section 2(k) of the Bill defines transgenders in two parts. Part I states that “transgender person” means a person whose gender does not align with such person’s biological gender and includes transman and transwoman. Part II includes persons with intersex variations within the ambit of the definition. This inclusion of intersex people within the ambit of the term “transgender persons” is problematic as an intersexual person may or may not identify as a transgender.[iii] Moreover, intersex persons may have a number of unique needs that does not correspond with that of the transgenders.[iv] These unique needs take a back seat and are often neglected when intersex is viewed as a sub-category of transgender. Thus, the Bill is inconsiderate towards the intersex community and its needs.
The 2016 bill introduced by the Government on transgender rights was heavily condemned as it proposed to establish “screening committees” in order to determine whether or not an individual qualifies as a transgender.[v] The current bill does not provide for screening committees. However, it requires that a transgender person has to acquire a “certificate of identity” which shall confer rights and be a proof of such person’s identity as a transgender. In order to get the certificate, the concerned person is to make an application with the District Magistrate along with the “prescribed documents”.
Moreover, if a transgender person undergoes a sex-change surgery then such a person will have to apply for a “revised certificate” to the District Magistrate. The Bill states that in order to get the revised certificate, the applicant has to first obtain a certificate attesting to the surgery from the Chief Medical Officer of the institution where the surgery took place. The District Magistrate is to issue a revised certificate only after being satisfied with the correctness of the certificate issued by the Chief Medical Officer. Thus, the Bill does provide for a screening procedure without using those exact words.
In Anuj Garg vs. Hotel Association of India[vi], the Supreme Court held that Article 21 guarantees the protection of “personal autonomy” and “self-expression”. It was further held that self-determination of gender is an indispensable facet of personal autonomy and self-expression; therefore, it falls within the ambit of Article 21 of the Constitution. The same view was reiterated in National Legal Services Authority vs. Union of India[vii] (NALSA judgement from herein) wherein it was held that Article 21 of the Constitution mandates that the members of transgender community should be given the right of self-determination of their identity and sexual orientation. The Bill, by putting the transgenders through the humiliating process of screening, takes away their right of self-determination guaranteed under Article 21 of the Constitution.
It is also important to emphasise that the Bill does not contain any provision prohibiting the District Magistrate, Chief Medical Officer or any other person in possession of sensitive information regarding a transgender person from disclosing or publishing the same. In Puttaswamy vs Union of India[viii], the Supreme Court held that right to privacy is a fundamental right under Articles 14, 19 and 21 of the Constitution. Thus, the non-inclusion of a confidentiality provision adds a further dent upon the constitutionality of the Bill.
The biggest flaw in the Bill is that it promotes the rape and assault of the members of the transgender community. Section 18(d) of the Bill provides that any person who is guilty of inducing or causing the sexual abuse of a transgender shall be punished with “imprisonment for a term which shall not be less than six months but which may extend to two years along with a fine”. However, sexual offences upon cis-women attract stricter penalties which may even extend to life imprisonment.[ix] Thus, there is a huge disparity between the punishment that is attracted upon the sexual assault of a transgender as opposed to a cisgender person. This discriminatory treatment is unintelligent and in violation of Article 14 of the Constitution.[x] It dehumanises transgenders by treating them as lesser humans which also violates their right to dignity guaranteed under Article 21 of the Constitution.[xi]
Apart from containing a number of unconstitutional provisions, the Bill fails to address a number of pertinent issues that affect the transgender community in India. It provides that transgender children cannot live separately from their family except by an order of the court. Thus, a transgender child cannot on his own choose to reside with a supportive community even when the family is abusive. In the NALSA judgement, the Supreme Court declared that transgender persons are socially and economically backwards and thus are entitled to reservation in education and employment. The Bill is unfortunately silent on this very pertinent issue. Moreover, it does not contain express provisions enabling the transgender community to have effective access to healthcare. Lastly, it mandates the Government to frame welfare measures to benefit the transgender community but provides no timeline for the implementation of the same.
The Transgender Persons (Protection of Right) Bill, 2019 unlike its name dehumanises and humiliates the struggling transgender community. It is staggering that the Government has been unable to come up with a holistic transgender protection bill adhering to the NALSA judgement even in its third attempt. Now that the Bill is likely to be enacted without any amendments, it will be yet another hurdle for the already struggling transgenders living in India.
[vi] Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1.
[vii] National Legal Services Authority vs. Union of India, (2014) 5 SCC 438.
[viii] Puttaswamy vs Union of India, (2017) 10 SCC 1.
[ix] Sections 354, 354A, 354B, 376 of the Indian Penal Code, 1860.
[x] See, State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.
[xi] See, Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1.
Utkarsh is a student at Symbiosis Law School, Pune
Image submitted by the author.