India’s Transgender Bill 2019 Violates The Right To Self-Identification Of Gender
The controversial Transgender Persons (Protection of Rights) Bill was passed by the Rajya Sabha on 26th November, 2019. It is a proposed act of the Parliament of India with the objective to provide for protection of rights of transgender persons, their welfare, and other related matters.
The bill was introduced in the Lok Sabha on 19 July, 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot, in light of the lapse of the Transgender Persons (Protection of Rights) Bill, 2018.
However, before the bill was passed in November this year, DMK MP Tiruchi Siva made an appeal to the Deputy Chairman to send the Bill to a Select Committee and listed out the reasons why the bill must be reconsidered.
“The trans community has called this Bill regressive and hard-hearted. They have asked for a comprehensive Bill. A Bill should be wholesome and comprehensive. Why don’t you give six weeks at least, send it to Select Committee and then you hear them out. A slow and steady regulation will not do any harm,” he said. He also sought reservation for the trans community in India.
TMC MP Derek O’Brien also pushed for the Bill to be sent to a Select Committee. “We need to go beyond this Bill and look at other Bills which also need to change to address the concerns of the trans community, like POCSO, Domestic Violence Act and the Sexual Harassment at Workplace Act,” he said.
The bill was cleared despite the opposition’s efforts to send the bill to the select committee. The government got 74 votes defeating the opposition motion, which only garnered 55 votes.
However, transgender activists have widely criticised this Bill. They argue that it is likely to endorse further discrimination and stigma in the name of protecting rights, since it talks about gender in a fixed binary, which goes against what both the trans rights movement and the feminist movement stand for.
The Transgender Protection Bill defines a transgender person as one whose gender does not match the gender that was assigned at birth. The category of people includes trans-men, trans-women, gender-queers, persons with intersex variations and persons with socio-cultural identities.
Even though the bill provides discrimination and unfair treatment against transgenders in education, employment, healthcare, access to opportunities, right to movement, right to live, opportunity to hold public or private office, and access to government and private establishment, there are several contentious provisions to the bill. The bill recommends that a transgender person may submit an application with the District Magistrate to get a certificate of identity, which states the gender as ‘transgender’. The bill also recommends that a person may obtain a revised identity certificate if he or she undergoes surgery to change the gender either as male or female.
The transgender community feels that the bill fails to address the fundamental rights of a transgender because it doesn’t let them determine his or her own identity, and instead confers power to the District Magistrate to grant identity certificate to transgender applicants. The Bill does not include a provision that states what recourse a transgender person can take in case the District Magistrate refuses to recognize a transgender or refuses to issue a certificate of identity.
Hence what the bill takes away is the transgender person’s right to self-identification of gender that was granted to them by the NALSA judgement. Objections were also raised on the bill’s silence on provisions relating to the right to marry and inherit property for transgender persons.
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