The Supreme Court on Monday issued notice to the Central Government on a petition which challenges the constitutional validity of Transgender Persons (Protection of Rights) Act 2019.
As per the petition filed by transgender activist Swati Bidhan Baruah, the Act passed with the stated objective of protecting the rights of transgender community in effect negates their rights.
Under the Act, for asserting one's identity as a transgender, a certification by the District Magistrate is necessary. Even if a a person undergoes a gender affirming surgery, such certification from District Magistrate is mandatory.
These provisions are challenged as "invasive and violative of the personal dignity and privacy of transgender persons. The Supreme Court has declared in the NALSA judgment that self-identification of gender is a right of transgender persons. But the Act has replaced "self-identification" with "state-identification", states the plea.
"the process of certification is unnecessarily invasive and fails to achieve a balance between the right in question and the state aim of effectuating self identification. The method prescribed completely deprives transpersons of their right to privacy".
"The Act treats transpersons with suspicion and several provisions of the Act evince and reinforce the very prejudice that the legislation ought to have aimed at eliminating", states the plea through Advocate Rashmi Nandakumar.
It is further pointed that the NALSA judgment had directed the Governments to take steps for affording Socially and Economically Backward Class status to transgender persons for the benefits of reservations in education and jobs. The petitioner raises the grievance that the Act falls short of making any such compulsory condition, and merely directs that State shall take "welfare measures".
"The Petitioners submit that reservation being a facet of equality is a necessary measure that Parliament should have incorporated in the Act", says the plea.
It is also stated that the punishments prescribed by the Act for harming transgender persons are wholly inadequate.
While rape of a woman is punishable with imprisonment extending up to life term, sexual abuse of a transgender is punishable with a term ranging from six months to two years imprisonment. Therefore, the provisions are challenged as discriminatory.
Also, the provisions intended to grant a right against nondiscrimination are stated to be "completely toothless" as no remedy has been provided for the violation of these provisions.
The Parliament had passed this law on November 26.
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