Lawyers Collective

| @LCHIVWRI | December 17,2018

Amidst loud protests over Rafale judgment and sparse attendance, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2018 (“the Bill”) on December 17, 2018.

Introduced in August 2016, the Bill was widely criticised for introducing an offensive and archaic definition of transgender persons with expressions like “neither wholly male or wholly female” and imposing medical screening for recognition for one’s gender identity. Thereafter, it was referred to a Standing Committee which made over 55 recommendations to modify the Bill. These included restoring the right to self-determination of gender under NALSA, applying the Yogyartaka Principles to counter discrimination and recognising transgender persons’ rights to enter into civil partnerships and/or marriage. It was hoped that the Government would review and revise the Bill in light of the said recommendations.

The Lok Sabha passed the Bill with 27 amendments moved by the Minister for Social Justice and Empowerment. Key among them are:

 

Definitions

  • New clause 2 (ba):family” means a group of people related by blood or marriage or by adoption made in accordance with law
  • Amended clause 2(d):persons with intersex variationsmeans a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body
  • Amended clause 2(i): transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man (whether or not such person has undergone sex re-assignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinnar, hijra, aaravani and jogta.”

 

 

 

None of these changes address the concerns expressed by transgender persons.

The newly added definition of ‘family’ excludes the living arrangements that many in the transgender community have, thereby de-legitimising them.

The conflation of intersex persons with transgender persons remains problematic.

While the definition of ‘transgender person’ is far better than what was proposed, a more appropriate articulation would have been:-“a person whose sense of gender does not match the gender assigned at birth….” The amended clause is prone to ambiguous and illiberal interpretation.

 

Changes in the procedure for recognition of gender identity

 

Despite demands to do away with the screening procedure, no amendments have been made to clause 7 of the Bill. However, certain amendments have been adopted in clause 8(1), which make it mandatory for a person, who seeks recognition in the binary genders of ‘male’ or ‘female’, to undergo sex-reassignment surgery (“SRS”) and produce a medical certificate to this effect.

According to the Bill passed by the Lok Sabha, such a person will have to first obtain a certificate from the District Magistrate recognising them as ‘transgender’, on the basis of the recommendation of the Screening Committee. Thereafter, they will have to undergo SRS and produce the SRS certificate before the District Magistrate and obtain a revised certificate of identity as ‘male’ or ‘female’.

The aforesaid amendment is completely contrary to NALSA, wherein the Supreme Court had categorically stated:-”Transgender persons’ right to decide their self-identified gender is upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity as male, female or as third gender” and further that:-“any insistence for SRS for declaring one’s gender is immoral and illegal”.

 The fundamental right to self-identified gender under Articles 14, 15, 19 and 21 of the Constitution stands blatantly violated.

The procedure adopted in the Bill is more regressive and burdensome than current practice, which allows a person to change their gender identity in official documents directly from ‘female’ to ‘male’ or third gender, as the case may be or vice-versa. Now, transgender persons will have to go through intrusive bureaucratic procedures twice – first, by being “certified” ‘transgender’ and then being “re-certified” ‘female’ or ‘male’.

 

Other amendments

  • Clause 13 has been modified to the effect that a “transgender child” shall not be separated from parents or immediate family. The earlier clause employed the expression “transgender person”.
  • Clause 16(g) has been amended to restrict insurance cover to “SRS, hormonal therapy, laser therapy or any other health issues.”
  • The functions of the National Council for Transgender Persons include, under a new clause 18 (ca), the task:- “to redress the grievances of transgender persons.” With no statutory powers or procedures enumerated, it is unclear what complaints the Council will examine and how it will adjudicate and/or provide remedies.

 

Other changes moved by the Minister were cosmetic.

The demand for robust anti-discrimination clauses and proportionate penalties for sexual offences committed against transgender persons, in line with section 375-376 of the IPC was unheeded. Clauses 3 (prohibition of discrimination) and 19 (offences and penalties) of the Bill were passed without any changes. As a result, there is no effective remedy for discrimination and sexual violence will be treated like a ‘petty crime’, punishable with six months to two years imprisonment — thereby clearly violating the constitutional guarantee of equality before law and equal protection of the law.

The Bill is silent on reservations, which the Supreme Court, in NALSA, had directed the Central and State Governments to extend to the transgender community. The Standing Committee’s recommendation to include a provision on the lines of the Right to Education Act, 2009 requiring private schools to reserve seats for gender non-conforming children has also been ignored.

The sixteenth Lok Sabha has once again disappointed by passing a regressive and flawed Bill.

With only four MPs addressing the debate which lasted less than the time allotted of two hours, the Bill passed by the Lok Sabha is a washout.

It is now for the Rajya Sabha to resist and reject, especially since it has already passed ‘The Rights of Transgender Persons Bill, 2014’ in April 2015.

 

[Note: The statement has been drafted by Tripti Tandon on behalf on Lawyers Collective.]

 

Read the Transgender Persons (Protection of Rights) Bill, 2018, passed by Lok Sabha on December 17, 2018.

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