Why Transgender Persons Bill, 2016 is hugely problematic
The Transgender Persons (Protection of Rights) Bill, 2016, is set to be tabled in the ongoing winter session of Parliament. Sadly, this bill “to provide for protection of rights of transgender persons and their welfare”, in fact, defeats their rights.
It is a well-settled fact that the gender to which a person belongs is to be determined by the person concerned, as gender identity forms basic aspect of personal autonomy and self-determination as per Article 21 of the Constitution.
Explaining the scope of self-determination, the Supreme Court, in Anuj Garg versus Hotel Association of India (2007), took the view that “personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression, and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India”.
Earlier, in Francis Coralie Mullin verus Administrator, Union Territory of Delhi (1981), the Supreme Court had held that “the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings”.
It is beyond doubt that the members of the third gender have the right to determine themselves as belonging to the said community, rather than placing reliance on the biological test to establish their identity. More recently, the Supreme Court, in the case of National Legal Services Authority versus Union of India (2014), issued numerous directives to the government covering a range of issues such as affirmative action, social welfare schemes and medical care to realise the rights of the transgender community.
Indeed, this judgment, emphasised the rights regime of the "third gender" of the society founded on the constitutional guarantees of articles 14, 19 and 21 of the Constitution.
One would have expected Parliament to enact legislation furthering the cause highlighted by the Supreme Court of "safeguarding the rights of this community under Part III of our Constitution".
The bill does exactly the opposite. Firstly, it simply ignores the numerous welfare schemes suggested by the Supreme Court in its judgment in National Legal Services Authority versus Union of India (2014).
Secondly, it in effect re-introduces the biological test to determine gender identity of a transgender individual while ostensibly mouthing the principle that transgender people “have a right to self-perceived gender identity”. The bill, in fact, requires a transgender individual to make an application to the district magistrate for issuing a certificate of identity as a transgender person which would be referred to the district screening committee constituted for the purpose of recognition of transgender persons. The district screening committee would consist of the chief medical officer, district social welfare officer, a psychologist or psychiatrist, a representative of transgender community, and an officer of the appropriate government to be nominated by that government.
Such provision is patently in violation of the rights of the third gender guaranteed under Article 21 of the Constitution and, indeed, the entire human rights jurisprudence. No individual can be forced to undergo medical screening to identify and recognise his/her sexual orientation and gender identity, which is one of the most basic aspects of self-determination, dignity and freedom.
This has been reiterated by the Supreme Court in numerous cases, latest being the right to privacy judgment which explained that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”.
Further, this provision would deter people, who identify themselves as belonging to the third gender, from admitting and revealing their sexual identity and would pressurise them to conceal, suppress or deny the same out of fear and shame.
In the name of legal recognition, the transgender individual could subjected to physical, sexual and emotional abuse. And, while such abuse is an offence, it attracts a penalty of mere six months to two years imprisonment in contradistinction to stiffer penalties for such offences in the Indian Penal Code that extend up to seven years.
The provisions of the bill rest on the idea of exclusion can be used not only to victimise the community of the third gender, but are downright contemptuous and demeaning.
One can only hope that the retrograde bill does not become a law in its present form as that would be a fatal blow to the transgender community, robbing them of their dignity.