Rajya Sabha passes Transgender Persons (Protection of Rights) Bill, 2019

Thawar Chand Gehlot, Minister of Social Justice and Empowerment on November 20 moved the Bill for consideration and passage in Rajya Sabha that was passed by Lok Sabha on August 5, 2019. The Bill got a nod in the Upper House defeating a motion to refer it to an RS Select Committee. Tiruchi Siva from DMK calling the Bill “regressive" pushed for sending the Bill to a select committee stating that slow and steady legislation won’t do any harm and it (Bill) should be complete and comprehensive. He pointed out that while the proposed legislation has no definition of discrimination, the definition of transgender is ambiguous. Siva also mentioned the Supreme Court’s verdict on self-determination adding that taking away the right to self-determination is humiliating to the people.

The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent, or otherwise occupy property, opportunity to hold public or private office, and access to a government or private establishment. The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries. The Bill also has a provision of certificate of identity for a transgender person by making application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.

“A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female," the Bill states. It also calls for establishing a National Council for Transgender persons (NCT) and offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

Human rights organizations have alleged that the Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations. “Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in National Legal Services Authority (NALSA) v Union of India (UOI), which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI," said Frederick Rawski, Asia Pacific Director, International Commission of Jurists (ICJ), a nongovernmental organization (NGO) defending human rights.

“Moreover, the Bill sets out lighter sentences for several criminal offences, such as “sexual abuse" and “physical abuse", when they are committed against transgender people. In addition, the Bill does not adequately define these offences and retains provisions that could be used in a discriminatory manner to target transgender people for criminal prosecution. It also fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity," Rawski.