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Legislations, The Law

The Transgender Persons (Protection of Rights) Bill, 2019

Protecting the interests of the marginalised should be the primary aim of social security laws. In situations where dialogue is not accepted by the oppressed, purely because of a very real danger to their lives and structural barriers in place to not only dissuade, but to discourage group members from occupying and engaging in political spaces, it is then incumbent on the state to effectively interact with those groups to create such a dialogue.

By: Harshal Kumar, Semester III, Year II B.A.L.L.B (Hons.), National Law University, Delhi.

Introduction:

The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. This Article will deal with the introduction of this Bill and will lay down the criticism faced by the same along with the suggestions in the conclusion.

 Transgender person is identified by the Bill as one whose gender does not match the gender assigned at birth. It comprises trans-men and trans-women, intersex variance individuals, gender queers, and socio-cultural identity individuals, such as kinnar and hijra.

Intersex variants are characterised to mean a person who exhibits variants from the normative pattern of the male or female body in his or her primary sexual characteristics, external organs, chromosomes, or hormones at birth.

The Bill allows for self-perception of gender identity. But it mandates that each person would have to be recognised as ‘transgender’ on the basis of a certificate of identity issued by a district magistrate. A recommendation from the 2016 Standing Committee to have a screening committee was rejected. Opposition MPs have raised concerns about certain provisions in the Bill. 

The religious footing for transgender rights:

The Hindu idea of ‘Ardhanarishwara’-an androgynous deity containing the combined aspects of the destroyer Shiva and his female consort is the religious basis for India ‘s recognition of transgender persons.

Yet transgender leaders argue that this pious underpinning of the lives of transgender people has subsumed their claims to be treated as full members of western society.

The first bill on transgender rights presented by Tiruchi Siva of the Dravida Munnetra Kazhagam in the Rajya Sabha in 2014 was “a perfect bill” in accordance with the Supreme Court’s judgement of the National Legal Services Authority (NALSA) that year, said Ashok Row Kavi, member and chairman of the Humsafar Trust and advocacy.

The measure, approved and passed in the upper house in April 2015, was a private member’s measure.

When the government next presented the transgender bill in the Lok Sabha on August 2, 2016, as the Transgender Persons (Protection of Rights) Bill, 2016, on several counts it was opposed, including the demand for “screening boards” to determine who was a transgender and who was not, and the criminalization of begging, a hallmark for a majority of transgender Indians. Transgender members said they introduced over 100 changes, but there were 27 changes to the bill that was first enacted on December 17, 2018. It concluded with the dissolution of the house due to the 2019 general election. Those 27 amendments persisted in the most current edition, which transgender groups argue annuls the advances of the five-year – old order of the Supreme Court.

 Criticism faced by the Bill:

In an effort to attract mainstream recognition, the transgender people, along with its supporters, took to Twitter. Initially, some attempted to convince the MPs to send the Bill to a select committee when the Bill was brought up for consideration at the Rajya Sabha in November. However, they are now directing their tweets to the President now that it has been signed, asking him to withdraw his assent, and give the Bill back to the Rajya Sabha.

To receive a certificate claiming that they are transgender, it requires a transgender citizen to contact a District Magistrate. It is only after a government issued identification cards that they will be able to change their sex to either Male or Female.

India’s transgender persons now have to agree to a licencing scheme involving a government officer and a doctor, rather than the right to assess their identity.

If transgender people are sexually abused, their assailants face a statutory sentence of incarceration of two years compared with a minimum of seven years for women who have been attacked. They will no longer represent the trans community if young trans adults choose to leave home because of stigma to adapt to the body they were born as. Instead, they must go to a judge that will commit them to a’ rehabilitation facility.’

Protecting the interests of the marginalised should be the primary aim of social security laws. In situations where dialogue is not accepted by the oppressed, purely because of a very real danger to their lives and structural barriers in place to not only dissuade, but to discourage group members from occupying and engaging in political spaces, it is then incumbent on the state to effectively interact with those groups to create such a dialogue.

But a crystal-clear retraction of the statements raised and guarantees offered was what followed. A variety of bills starting with the 2016 bill followed by the 2018 bill is but a death knell on the culmination of the community’s aspirations. Several definitions that the Bill prescribes are rather redundant in relation to the community ‘s problems. The definition of “family” in particular. Where the present act blindly borrows its meaning from prior laws in effect, without the use of mind as to the status or distinctions identified with the transgender community. After numerous clarifications made by members of the group about the need to broaden the scope of ‘family’. Because of the prejudice and abuse they face from their birth families and their extended society; most people do not live with their biological family. Therefore, it is important to include the preferred family within the ‘family’ framework and meaning. Since it is through the selected family that most transpersons gain assistance and can locate their kith and kin.

Implications:

While for ‘intersex people’ there is a separate standard, that appears to have been undertaken primarily to satisfy foreign organisations calling for a separate standard for intersex persons. Since it was conflated with the concept of ‘transgender male’ in the very next paragraph. There is not only a horrific misrepresentation of intersex people and their concerns, but also an invisibility. In the field of health, this is of particular concern when there are a number of common challenges encountered by intersex individuals. From compulsory ‘corrective’ activities on intersex children through chronic health conditions that the treatment system is both unfit through cope with and inaccessible to a significant percentage of intersex people.

According to the activists, this new bill would not go into matters of livelihood, starting from education. Although the current law allows the government to “formulate livelihood assistance welfare schemes and services” for transgender people, including “technical preparation and self-employment,” it lacks a main demand public-sector work reservation, such as those for people of differing skills. 

Suggestions and Conclusion: 

Critically, for transgender persons, the Bill seems to continue mandating sex reassignment surgery.

The Supreme Court’s judgement in National Legal Services Authority (NALSA) v Union of India (UOI), which grants the right to self-identification without the need for medical intervention, will contravene the provision. Activists and transgender community members have managed to lift their doubts on new digital platforms and otherwise about the latest iteration of the law.

Furthermore, it was pointed out that all federal law adopted to protect the interests of transgender people should take place in consultation with community members. The disavowal of the right to gender self-determination and the pathologizing of transgender identities remain violative of the human rights responsibilities of the government.

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