Why Rajya Sabha Should Not Pass Transgender Bill In The Current Form?
The Transgender Bill is against the spirit of NALSA judgment of SC.
The Transgender Persons (Protection of Rights) Bill, 2018 ("the Bill"), was passed by the Lok Sabha on December 17, 2018 and will be introduced in the Rajya Sabha on January 8, 2019.
The Bill only scratches the surface when it comes to protecting the rights of transgender persons, does little to help enhance their welfare and is in fact derogatory and oppressive. There are several aspects of the Bill that are regressive and problematic, such as the creation of a Screening Committee to determine the identity, the lack of reservations for transgender persons or the provisions that criminalize begging.
This Bill was created in the aftermath of the NALSA judgment, where the Supreme Court guaranteed the Transgender people several rights including the right to privacy and dignity. In this judgment, Justice Radhakrishnan expressly stated, "Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights."
However, this Bill does little to protect the rights of Transgender People, it disallows people to self-identify and denies them the basic right to privacy and dignity. According to this Sections 5 and 6 of this Bill, a person would have to make an application to the District Magistrate , who would then make an application to the District Screening Committee to identify and determine whether the person could be categorized as transgender . The involvement of the Screening Committee and various medical examiners or psychiatrists and others in determining whether the can be identified as a transgender person completely contradicts Section 4 of the Bill which states that transgender persons will have the right to "a self-perceived gender identity".
Countries across the world have recognized how invasive this process of determining another's gender can be, and have allowed self-identification. Several countries such as the UK, Denmark and Argentina allow for self-identification and as recent as 2015, Malta adopted a Bill that did away with medical examinations to identify gender and instead allowed Transgender people to attain legal recognition and self-identify as whatever gender they associated themselves with.
There are numerous injustices that the Transgender community face that have not been remedied or discussed by this Bill. For instance, while this Act makes a specific provision regarding begging and touches upon inclusion in education and employment, no positive rights have been conferred to ensure such inclusion or alternative employment. Justice Radhakrishnan famously began the NALSA judgment by noting,"Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex".
This Bill is proof of this lack of awareness in the lawmakers who have not considered the violation of privacy and dignity the transgender persons will face when their identity is determined by someone other than themselves, or the lack of opportunities actually available to them in society. Most Indian laws still consider gender as a binary between male and female, and there is still a large amount of stigma and superstition regarding Transgender persons. Therefore, the Bill should have sought to at least try and remedy this, and provide more detailed positive rights to the Transgender community, a community that has faced a large amount of hardship and discrimination that has been facilitated by archaic laws.
In the Navtej Singh Johar v UOI judgment, Justice Dipak Misra said, "It is through times of grave disappointment, denunciation, adversity, grief, injustice and despair that the transgenders have stood firm with their formidable spirit, inspired commitment, strong determination and infinite hope and belief that has made them look for the rainbow in every cloud and lead the way to a future that would be the harbinger of liberation and emancipation from a certain bondage indescribable in words – towards the basic recognition of dignity and humanity of all and towards leading a life without pretence eschewing duality and ambivalence." And that "denial of self-expression is inviting death.
The Rajya Sabha should take into account the concerns of transgender community before passing the bill in the current form. The current Bill merely makes a show of protecting the transgender rights, but in actuality, the community is still far away from the pot of gold that is supposed to be at the end of the rainbow.