Transgender Persons (Protection of Rights) Act, 2019
Back on July 19, 2019, the Transgender Persons (Protection of Rights) Act, 2019 was introduced in Indian Parliament which caused massive protests against the bill by members and representatives of LGBTIQA community. The Bill that avers to protect the rights of transgender people came up empty and was rejected by the community and activists.
This struggle of transgender people for their rights has been going on for a long time. But in recent years it had seen some progress. One of the most historic win for them being the Supreme Court order in 2014 in National Legal Services Authority vs Union of India which ruled that transgender people should be recognized as a third gender. They would enjoy all the fundamental rights and are also entitled to specific benefits in education and employment. Another milestone being the historic decision of the Supreme Court in 2018 that struck down the colonial-era sodomy law that criminalized consensual same-sex relations. The 2018 bill for protection of their rights passed by the Lok Sabha was widely criticized by transgender persons, activists, students, and lawyers. They protested in various cities in India calling the provisions regressive and in violation of the Supreme Court judgment in 2014. The 2018 bill had criminalized begging, which transgender persons in India engage in as a ritual-custom while some rely on it for livelihood.
Unfortunately the new act also turned out to be extremely regressive and undermined their rights. Although the provision that criminalized beggary by transgender people has been removed from bill, there have been still a lot of demurs against it. Yes it prohibits discrimination against the trans people but still lacks in safeguarding their rights.
It defines a transgender as someone whose “gender does not match with the gender assigned to them at birth” and includes trans-man or trans-woman whether or not such person has undergone sex reassignment surgery or therapy. The activists flagged many provisions laid down in this act. One of the major objections is that it asks for a two-step process for legal gender recognition. Firstly, it requires a trans person to apply for a “transgender certificate” which can be done on the basis of a person’s self-declared identity. Then the person can apply for a “change in gender certificate” which signals to authorities to change their legal gender to male or female. This second step seems to require surgery and then documentation by a medical authority confirming it. The bill empowers the district magistrate to check the “correctness” of the application and decide whether to issue the change in gender certificate or not. But it does not give any guidelines on how this decision should be made. These provisions appear to be contradictory to international standards for legal gender recognition as well. The legal gender recognition of trans people should not require assessment of surgeons, psychologists or any other person for that matter, rather it should be a self-declared identity.
The other objection to the new bill is that it refers to intersex and transgender cognate to each other, despite the intrinsic differences. While transgender persons are identified as those whose gender identity or gender expression differs from their sex assigned at birth, intersex persons are those born with physical or sex characteristics that do not fit the typical definitions for male or female bodies.
The Bill also says that a transgender person must live either with their biological parents or in governmental shelters. But what if these shelters could not fulfill their basic needs? What about the constant discrimination and abuse they constantly face at their supposed homes?
The Act has failed to provide them a secure environment they’ve been asking for years. It has failed to give them reservations in government jobs. When it should have emphasized on the inclusion of this community, the law has done very little to punish the offenders who harassed them and continue to do so. The trans people deserve to live with dignity and not out in the fringes. This act was expected to make them feel welcome in this society, to give these children a safe space and an aspiring future but sadly it went on and did the complete opposite of that.
