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The Transgender Persons (Protection Of Rights) Bill, 2019

As per the dissenting opinion of Dr D.Y. Chandrachud cited in the case of K.S. Puttaswamy v. Union of India[1]:
Having an individual identity is an important part of the human condition. The negation of identity is the loss of personhood, which in turn affects the freedom of choice and free will. Personhood constructs democracy.

The Transgender Persons (Protection of Rights) Bill, 2019 was the second major institutional development in the transgender discourse after the NALSA Judgement’s[2] which was considered as path-breaking because the rights of transgenders in India are addressed here for the first time in this judgement. Transgenders are an abhinn ang (integral part) of our society, said the Minister for Social Justice and Empowerment, Krishan Pal Gurjar while introducing the Transgenders Rights Bill, on 5 August 2019. Despite being recognised as an integral part of our society, the journey of this Bill has been riddled with much criticism.

This Bill suffers from several limitations which have rendered and it is unfeasible in providing any real relief to the socio-political exclusion of transgender persons. The Bill consists of many gross versions of the measures envisaged by the Supreme Court.

The Bill altogether regresses towards a diagnosis-based invasive approach of gender identification by incorporating the District Magistrate for issuing a certificate of identity as a transgender person as written under Section 5 of the Bill. A public procedure of changing one's identity also contributes to making transgender persons easy targets of discrimination.
According to clause 6(3) of the Bill, the identity certificate shall confer rights upon transgender persons and be a proof of recognition of identity.

The Bill is silent on whether those who have already changed their identity documents or have self-attested affidavits identifying as male or female can claim rights under this law, or other government welfare schemes and programs meant for transgender persons. There is no mention of whether persons who do not/cannot get identity certificates as prescribed, will be ‘protected’ or conferred rights by this law.

In particular, the Bill had failed to incorporate the self-determination model and provide for basic civil rights for transgender persons. The Bill failed to facilitate the inclusion of third gender identities in the social sphere.

Thus, it is evident that this Bill has adopted a vague and stereotypical approach of denying the capacity to self-identify and reinforcing a model of state control over the private choices of non-heterosexual genders. Although the Bill was to advance the rights of self-determination and inclusion envisaged by the operative rationale of NALSA judgement, the Bill only enforces scrutiny and regulation by taking advantage of the inconsistencies in the midway of the decision.

In order to achieve an inclusive and model of self-identification, I have identified three stages to achieve the goal effectively and efficiently.
  • The first stage is to establish Gender Neutral Laws
  • The second stage is to rebuild the social understanding of gender identity by promoting the Self Determination Model of choosing one’s gender inspired by the Australian Legislative Framework in this regard.
  • The third stage is to create a framework that provides for special safeguards and measures for persons identifying as the third gender in order to dismantle the systemic discriminatory practices and attain social equality.
End-Notes:
  1. K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
  2. National Legal Services Authority v. Union of India (2014) 5 SCC 438.

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