Caught in the Act: On Transgender Persons Act

It is inconceivable that any effort to ostensibly ameliorate the fortunes of a particular group should be completely impervious to the entreaties of intended beneficiaries. The Transgender Persons (Protection of Rights) Bill, passed in the Rajya Sabha on Tuesday, and seeking to ensure the fundamental rights of those who do not conform to the binary notions of gender identity, has disappointed the community. The Act’s long history traces back to the judgment in NALSA vs Union of India of April 2014, which directed the Centre and State to grant legal recognition for the third gender, ensure there is no discrimination against them, and construct specific social welfare programmes. In August 2016, the government introduced the Transgender Bill in the Lok Sabha and this was referred to the Standing Committee on Social Justice and Empowerment, which submitted its report in less than a year. But that Bill lapsed with the dissolution of the 16th Lok Sabha. The current Act arose out of a Bill that the government introduced in the Lok Sabha in July 2019, and was passed there on August 5 this year, the same day the Centre revoked the special status of Jammu and Kashmir. In its passage through the Upper House, more recently, a motion to refer it to a Select Committee of the Rajya Sabha was defeated. The Act is progressive in that it allows self perception of gender identity, but regresses by mandating that each person would have to be recognised as ‘transgender’ on the basis of a certificate of identity issued by a district magistrate, rejecting the recommendation from the 2016 Standing Committee to have a screening committee. There are no avenues open either for appeal in the event a magistrate refuses to hand out such a certificate.

India’s vocal LGBTQI community had problems with the Bill’s basics — right from the nomenclature. Calling it a ‘Transgender Persons’ Bill would not give adequate play to the diversity the non-binaries included, it argued, instead calling for a more broad-based definition. Activists have slammed it for its ‘narrow understanding’ of gender identities and for offering woefully inadequate mainstreaming opportunities. They remain unhappy with the silence on unnecessary and non-consensual sex selective or reassignment surgeries, despite the plea that it be made an offence. Elaborate detailing of the anti-discriminatory clause in the Bill might have gone a long way in ensuring implementation and legal recourse, they argue. With the Bill becoming law, unaltered in any significant form, in the face of such strident opposition, the community is seething at being ignored. Its only hope is that the National Council for Transgender Persons, which is supposed to provide the institutional framework for implementing the Act, might allow more latitude for incorporating genuine demands. Otherwise, this Act might well be a glove that ill fits the hand it was tailored for.

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