The government of India attempted to take a progressive step to protect the rights and dignity of transgender persons by introducing the Transgender Persons (Protection of Rights) Bill 2016. This was passed by the Lower House of Indian Parliament and is set be introduced in the Upper House. The groundwork for this bill was laid in 2014 by the Supreme Court in NALSA v Union of India.
The NALSA judgement held the right to self-determination as the most fundamental right of a person. Therefore, transgender persons have the right to self-identification as male, female or third gender. However, according to the Bill, a transgender person is required to receive a certificate of identification to be recognised as a transgender. A District Screening Committee (DSC) is formed for the purpose of providing such a certificate. No redressal mechanism is provided if a person is not satisfied with the gender mentioned in the certificate of identity. One of the primary oppositions of the Transgender communities have been against the need to obtain such a certificate. It is argued that this will lead to a further violation of the rights of the community.
Even though the right contested is of an immense importance, it must be recognised that an obvious consequence of exclusively granting such a right would muddle the line between genuine and fake claimants, thus making it impossible for the government to successfully provide the limited welfare benefits available for the members of the community. Therefore, an amendment to the Bill is required to reconcile the right of transgender community and government’s need to issue such certificates of identity. A possible solution could be in line with Ireland’s Gender Recognition Act 2015. Here, an application requesting a Gender Recognition Certificate is to be made to the Minster. While granting or refusing such a certificate, consideration will be given only to the information provided by the applicant. The applicant has the right to appeal against a refusal to grant the certificate. Further, an application can also be made for revocation of the certificate previously given. Therefore, this preserves the individual’s right to self-determination, whilst also recognising the government’s need to have an objective basis for providing the certificate of identity. A similar mechanism should be adopted in India. This could further be enhanced by ensuring that the Committee has a due representation of trans people and eliminating the inclusion of medical practitioner or psychiatrist.
Further, the Bill makes the act of compelling or enticing a transgender person to indulge in the act of begging a criminal offence. This is made punishable with imprisonment for six months to two years and with fine. This is in complete disregard of the fact that most transgender persons are denied employment opportunities and have to resort to beggary. Further, it does not consider the cultural practices of communities such as Hijra gharana which have been making their livelihood by begging from households. It is to be noted that this comes after the Delhi High Court judgement holding that the act of criminalising begging is unconstitutional. The Court here held that criminalising begging is a wrong approach to the underlying problem as this merely adds insult to the injury of people in search of essentials for bare survival.
There is also no provision for reservation in employment opportunities, which the government was required to do according to the NALSA judgment. Therefore, the Bill criminalises the only source of income for many members of the trans community, and does not provide any protection to seek alternative opportunities.
The Bill does not provide any protection to transgender community against grave issues of sexual assault. In its present state, the Bill punishes the rape of a trans-woman with imprisonment of six months to two years, while the rape of a woman is punishable under the IPC with rigorous imprisonment for a term not less than ten years. This a clear violation of the right to equality of trans persons. This classification does not have an intelligible differentia or a reasonable nexus to the object sought to be achieved, which are essential conditions according to Supreme Court in State of West Bengal v Anwar Ali Sarkar.