Last week Parliament passed the Transgender Persons (Protection of Rights) Bill. To many, this may have seemed a significant and joyous occasion. But for members of the community it only served to prove how much India’s leaders must evolve to understand and respond to their needs.
In 2014, the Supreme Court in the historic NALSA judgment stated transgender persons had the right to self-identify their gender. This meant a trans person did not need to go to a state authority to be certified as the gender they identify as. Their own recognition was sufficient. The verdict also ordered that the state provide for reservations in education and employment.
Five years later, the Bill passed by Parliament betrays the rights assured by the verdict. There are at least five key flaws. First, despite the SC verdict, it requires a trans person to be certified as trans by a district magistrate. Further, until and unless the person undergoes sex reassignment surgery, the certificate will only recognise the person as transgender and not the gender they identify as. Second, it conflates trans persons and inter-sex persons. Third, it outlaws discrimination against trans persons but provides no penalties against such discrimination. Fourth, it clubs various forms of violence—from emotional to sexual abuse—under one head with a penalty of six months to two years, making it evident that the state believes sexual violence against trans persons is a crime of less gravity than against cisgender women. Fifth, despite the verdict’s call for reservations, the Bill makes no such provisions.
The Centre pushed through the legislation despite knowledgeable interventions by MPs calling for amendments. It did so over the vociferous objections of the communities whose rights it seeks to protect. While it is unlikely the President will refuse to sign the Bill into law, the communities and their allies can only count on the National Council for Transgender Persons envisaged by the Bill and the Rules that will give effect to the legislation to fill in at least some of the gaps and ensure some rights are fulfilled in implementation.