Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Anmol Jain, B.A., LL.B. Student (Hons.), National Law University, Jodhpur, India
Last month, the Lower House of the Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 to ‘provide for protection of rights of transgender persons and their welfare.’ This comes after a series of efforts by the legislature in the form of multiple lapsed bills and the long journey that the judiciary has traveled to establish the rights of transgender and inter-sex people. However, the Bill has faced multi-pronged criticism from civil society. In this post, I seek to counter such misplaced criticisms–a post that coincides with the first anniversary of the Indian Supreme Court’s historic decision decriminalizing same-sex relationships.
This Bill is a carbon copy of its 2018 version except for a couple of omissions in response to severe backlash from civil society and international institutions. First, the procedure involving a recommendation from the District Screening Committee before granting a certificate of identity to transgender persons has been omitted; and second, the provision criminalizing the act of begging has been dropped.
One of the most severe criticisms of the Bill comes from Human Rights Watch, which argues that the Bill ‘is unclear on a transgender person’s right to self-identity, which India’s Supreme Court recognized in a landmark judgment in 2014.’ It further argues that empowering the District Magistrate to judge the correctness of the application for issuing a certificate of identity violates the international standards of gender recognition, i.e. self-declared identity. While arguing so, the NGO fails to take into account Section 4(2) of the Bill. It explicitly states that a transgender person ‘shall have a right to self-perceived gender identity.’ The District Magistrate is merely empowered to reject an application if it does not adhere to the rules laid down in Section 22. Omitting the decision of a District Screening Committee itself indicates the Government’s commitment to the right of self-determination.
Moreover, considering the fact that the Bill obliges the Government to provide welfare measures towards the socio-economic and educational development of the transgender persons, it becomes imperative to identify the target group through a certification drive. Similar requirements are also present for the Scheduled Castes, Scheduled Tribes and others, who require special attention from the State for their development. Therefore, challenging the provision of certification in itself seems unfounded.
Another strong criticism is that the Bill has failed to include the recommendation of the Supreme Court to provide reservation for transgender persons in educational institutions and public employment. This is again unfounded because the Government already provides reservation for backwards castes and classes under Articles 15(4) and 16(4) of the Indian Constitution, without having any specific provision obligating the Government to do so. Moreover, it can be perceived from the Bill that the Parliament has preferred wide terminologies such as ‘welfare schemes and programmes’ while obligating the Government for the development of the transgender persons to enable them to innovate new means of development in addition to reservation.
The next criticism concerns the definition of family under Section 2(c). The transgender community argues that the Bill takes a narrow picture of family while restricting relations by blood, marriage and blood and fails to acknowledge the special community structures such as the ‘gharana’ system, where transgender persons live together. I believe that the real picture is different. A generic term ‘family’ is defined under the Bill only because Section 12 prohibits any forceful separation of a transgender person from his/her immediate family owing to their identity. The Bill nowhere prohibits a conscious decision of a transgender person to leave the family and reside with another. The prohibition is merely against the immediate family.
Given the fact that it is a prohibition, Parliament cannot afford to define the term ‘family’ in a wide manner inclusive of the social organizations of transgender persons; otherwise, it shall hamper the right of such organizations to limit their membership. Amid such unfounded criticisms, the press has failed to highlight one important lacuna of the Bill. Parliament has merely given a statutory recognition to the National Council for Transgender Persons, when similar bodies for SCs and STs have been conferred constitutional recognition. Last year, similar recognition was also extended to the National Commission for Backward Classes through the 102nd Constitutional Amendment.
Keeping this aside, I believe this Bill must be welcomed as it marks the first attempt by the Indian Legislature to enact an equality code which shall supplement the guarantees of anti-discrimination and equality as envisaged in the Constitution of India.
Suggested Citation: Anmol Jain, Special Undergraduate Series–The Misplaced Objections Against the Transgender Persons (Protection of Rights) Bill, 2019 (India), Int’l J. Const. L. Blog, Sept. 15, 2019, at: http://www.iconnectblog.com/2019/09/special-undergraduate-series–the-misplaced-objections-against-the-transgender-persons-(protection-of-rights)-bill,-2019-(india)