PUDR condemns the passage of The Transgender Persons (Protection of Rights) Bill 2019 by the Rajya Sabha on 26 November 2019. The Lok Sabha had earlier passed the Bill in the Monsoon session on 5 August 2019 amid the chaos relating to the unannounced abrogation of Article 370. Presently pending Presidential assent, the Parliament has completely ignored mass opposition and protests by queer and trans groups since last year in passing the Bill. The result is a law that violates the constitutional rights to self-determine one’s gender and guarantees of equality, and also increases the policing and criminalisation of transpersons.
The 2014 Supreme Court judgment in NALSA v. Union of India upheld the self-determination of gender as lying at the heart of fundamental right to dignity and liberty under Article 21. The Bill, however, requires transpersons to apply to the District Magistrate for a certificate of identity, subject to whatever procedure the government may decide from time to time, perpetuating the systemic pathologisation and harassment of transpersons. The Bill perpetuates discrimination and policing of transpersons, while denying them protection under the criminal justice system. Sexual assault upon transpersons is trivilaised as it invites imprisonment for 2 years as compared to the IPC prescription for sexual assault against women as 7 years minimum. The Bill criminalizes "enticement" to beggary and sex work, but meanwhile, it is completely silent on long-standing demands to decriminalise sex work, provide reservations in education and employment, and ensure equal protection for transpersons under criminal and family laws. While the Bill contains broad provisions prohibiting discrimination and discussing state welfare measures, it is toothless, with no remedy mechanism if these provisions are not implemented. Further, the Bill empowers courts to send transpersons into the custody of ‘rehabilitation centres’ on being abandoned by their birth-families, which are often primary sites of abuse and violence. It undermines their right to reside with who they choose, regardless of whether they are immediate family, and violates the freedom to decide one’s intimate and personal relations and the right to association of those facing common oppression.
The history and passage of the Bill demonstrates its undemocratic character. An earlier 2015 version, introduced by Tiruchi Siva of the DMK and passed by the Rajya Sabha, had provided for self-determination and self-identification of gender, extensive socio-economic guarantees, clear state obligations towards trans healthcare etc. The BJP government scuttled this Bill by re-introducing it with extensive amendments in the Lok Sabha on 2 August 2016, and passing it on 5 August 2019. In both houses, the government refused demands to refer the Bill to a Select Committee, going against the established parliamentary practice of refining and scrutinizing the contents of the tabled bills.
PUDR vehemently opposes the passage of the Transgender Persons (Protection of Rights) Bill, 2019 which dilutes the rights and protection recognized by NALSA, and furthers injustice and violence against trans and gender non-conforming persons. PUDR demands that:
- The President should withhold assent to the The Transgender Persons (Protection of Rights) Bill 2019 and refer it back to Parliament for reconsideration
- The Bill should be referred to a Parliamentary Select Committee
- The constitutional right to self-determine one’s gender should be upheld, and effective socio-economic rights, non-discrimination in all spheres, and protection from abuse and violence should be guaranteed.
- Enticement to beggary, and other criminal offences relating to livelihoods and associations of transpersons and sex work should be decriminalized.
Shahana Bhattacharya and Deepika Tandon