The Transgender Persons (Protection of Rights) Bill 2019 was passed by the Lok Sabha on 5th August 2019 and it was then sanctioned by the Upper House, Rajya Sabha on 26th November 2019, deeming for it to be an Act from thereon. This bill was proposed in the Parliament to bring about a sense of equality to the LGBTQ Community.
This Community has been a minority in the social structure and provision of rights was not granted to them until in the year of 2014 by a Supreme Court judgment. This section of the society has been granted many more rights by the Government and the Judiciary to uplift and bring it at par with other citizens of the country in the following years. This proposition and approval of this Bill was also done with the same motive.
The main aim of this Act has been to bring about the end of discrimination met out against the concerned Community in various fields of education, employment and in the facilitation of healthcare services. Other welfare schemes and programs for educational and social benefit have also been proposed. It also provides recognition of gender identity to the Transgender Persons. The National Council was given the responsibility to ensure the protection of these freshly granted rights.
On the face of the Act, it is a capable one and it achieves all that it has set out. It brings forth new rights and recognition of the transgender community and is a commendable step on part of the Government to empower and uplift the concerned downtrodden part of the society. But on the analysis of the Act in a more detailed manner, it can be found that the Act has certain loopholes which instead of elevating the LGBTQs, oppresses them instead.
Firstly, the Act does not acknowledge all classes of non-binary genders, thus, depriving them of their Fundamental Right of self-perceived gender identity which is beyond the purview of the State.
Chapter 1 of the said Act, the term “transgender person” does not acknowledge that intersex persons (both of which are different gender identities), meaning that the Act is conflating sex and gender, thus diminishing its capacity to understand the needs of the transgender persons. According to the WHO, ‘Gender’ describes those characteristics of women and men that are largely socially created, while ‘sex’ encompasses those that are biologically determined. However, these terms are often mistakenly used interchangeably.
The Act provides for the recognition of “self-perceived identity” but only to those who have recognized themselves as transgenders. It does not serve to provide the other non-binary genders with the right to take upon and identify themselves with their chosen gender identities. It is not fair and just to all the other queer genders who do not want to be categorized under the umbrella term “transgender” and would like the right to be identified as “lesbians”, “gays”, “bisexuals”, “bi-curious” or any other gender that they choose to be associated as and to.
Secondly, in case a person undergoes a sex reassignment surgery then they must apply for another certificate, apart from the one which validates for them to be a transgender, to change their gender identity. The district magistrate will analyze the “correctness” of the medical certificate issued by the medical superintendent or chief medical officer, according to the Act. Thus, the entire essence of liberty promised under protection of life and personal liberty as promised under Article 21 of the Indian Constitution is being violated as there is a veiled pressure imposed by this Act upon transgenders to undergo a sex change operation which would be measured on stereotypical standards.
As for the aim of the Bill that it would sustain a non-discriminatory attitude and provide welfare in terms of education, it does not actually fulfil these promises. Chapter VI, sub-clause 13, states that “Every educational institution funded or recognized by the appropriate Government shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination on an equal basis with others” which clearly omits the need of reservation in educational institutes for the transgender Community.
Fourthly, the Act punishes sexual abuse with a term ranging from 6 months to 2 years but has no clause for punishment in the offence of rape of a non-binary citizen
The Act as a whole was presented and implemented with a noble aim of pushing forward the social as well as the judicial status of the LGBTQs in the country but instead of being an Act which makes this sector stronger and more confident, it is insensitive to the intricate needs and aspirations of those for whom it has been solely made for. It is a commendable attempt on part of the Parliament to uplift its backward and neglected citizens but there are some clauses which need to be revised to make achieve the optimum goal of the Act. There has been a great amount of stigma which has been attached to the LGBTQ society and the coming in of this Act is just one minor step in mitigating that but still, tremendous amounts of efforts are required for an entire section of the society to be given their basic human rights to exist and thrive.