Right the wrongs in Transgender Bill

The Transgender Persons (Protection of Rights) Bill, passed by the Rajya Sabha last week, seeks to provide a legal framework for the rights of the community for the first time in the country. Considering the social ostracism, discrimination and oppression that the community has historically suffered from, the law is a step forward, but it could have been framed better. The LGBTQI (lesbian, gay, bisexual, transgender, queer and intersex) community, whom it is supposed to benefit, and those who have campaigned for their rights, are not happy with many provisions of the bill. It was the landmark judgement of the Supreme Court in the NALSA (National Legal Services Authority) case in 2014 that granted legal recognition to the third gender and provided for their equal treatment that has prodded the government to bring forth the legislation. But the bill has failed to comply with the judgement in some crucial respects. The original bill which was introduced in 2016 had lapsed, and the government has ignored some proposals and suggestions to improve its provisions in the present bill.

The biggest drawback of the bill is that it denies the right to self-definition and self-declaration of a transgender person, which the court had recognised. While a person may self-identify as a transgender individual, the power to assign the status has been given to the district magistrate. This amounts to the government or the society determining the gender status of a person, and social and official prejudices can come into play in the matter. It is a violation of a person’s right to equality and dignity. There is also no scope for appeal against the magistrate’s decision. The transgender person’s life has always been vulnerable and the bill does not improve the situation much. The bill is also silent on unnecessary sex-selective and reassignment surgeries though the transpersons have demanded a ban on them.

Unfairness and discrimination can be clearly seen in the bill’s provisions on sexual offences. The bill prescribes mild fines and imprisonment of six months to two years as punishment for sexual abuse of and assault on transgender persons while similar offences against women invite much harsher punishment. There can be no explanation for the difference in treatment except that the offence against transgender persons is considered less serious. The community has reservations about some other provisions too which go against the 2014 judgement and the view that no individual or community should be denied their rights on the basis of gender. The government should address these infirmities and frame the rules under the legislation accordingly to ensure that a traditionally oppressed and marginalised community gets justice and fair treatment and the individuals get equality in status and opportunities