The Transgender Persons Act Is Flawed And Will Not Protect Their Rights In Full
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
It is regrettable that the government did not listen to any of the experts and stakeholders before rushing through the Transgender Persons (Protection of Rights) Bill through Parliament. Since the time the bill was first introduced during the 16th Lok Sabha, there have been many reservations against the bill from experts and from the LGBTQI (which has now expanded to LGBTQIAPK, for lesbian, gay, bisexual, transgender, queer, intersex, asexual, pansexual and kink, with more to be added) community. None of these were addressed. The bill lapsed when the term of that Lok Sabha ended. The new bill was placed in the current Lok Sabha on July 19 and hurriedly passed by the house without any discussion on August 5, amid the din of the move to abrogate Article 370. In the Rajya Sabha, an effort was made to refer it to the house Select Committee but the motion was defeated. Hence the bill was passed without any modifications and has angered the LGBTQI community. They have argued that the bill puts forward a very narrow understanding of gender identities and also provides too few opportunities for mainstreaming those who have suffered prejudice from society for long.
Although the bill grants the right of self-determination to the community, they still have to get the status certified by the District Magistrate (DM) of the area where they live. This leaves the door open for corruption. The worst part is that the bill does not provide for any authority where they can appeal if the concerned DM refuses to grant a certificate on self-determination. When the first bill was introduced, the Parliamentary Standing Committee had recommended setting up of district-wise screening committees (that would have included medical persons) to certify the status. That would have been a much better way. Of course, leaving it only to self-determination is fraught with danger as men can pose as women, and vice versa, without any certification. But leaving it to the DM, who is not an expert in these matters, is worse.
The bill also does not have many details in the anti-discriminatory clause. The penal provisions for physically or sexually abusing a transgender person are also very low. The bill provides for mild penalties and jail terms of just six months to two years in case of sexual abuse. This is not in sync with other sexual abuse laws and it gives the impression that despite working to protect their rights, the government is making an Act that recognizes them as lesser persons. Further, the bill fails to provide for penal provisions in case of unnecessary and non-consensual sex-selective or reassignment surgeries performed on such persons by force or otherwise.
Although a weak and flawed bill has been passed by Parliament and will soon be law, there still is hope in the form of the National Council for Transgender Persons (NCTP) which will be the nodal body and will provide the framework within which the provisions of the new law would be implemented. There is hope that the NCTP will perhaps listen to the stakeholders and try to go around some of the visible flaws in the bill. Otherwise, despite the grandiosely named bill, the LGBTQI community will not have its rights protected to the full. But more than that, society will have to change the way it looks at the community. There needs to be a wider acceptance of people who choose their gender in a different way. Society needs to shed its old prejudices about what it considers 'normal'.
