November 20, 2019
Shanta Chhetri speaks on The Transgender Persons (Protection of Rights) Bill, 2019
Sir, All India Trinamool Congress strongly believes that Bills must be scrutinised by Standing Committees before they are passed. This is a good way to improve legislation and not rush with them. This was one of the few Bills to be scrutinised by the Standing Committee and we welcome it.
Sir, there are around 5 lakh transgender people in our country. However, the transgender community in India is one of the most marginalized communities because they don’t fit into the stereotypical categories ‘men’ or ‘women’. They have faced discrimination, ostracism, hate crimes, harassment, abuse, animosity, and lack of opportunity in almost all spheres of life for centuries in India.
They have been considered far from equal from the other genders, whose consideration is based on facts such as equality, liberty, justice and fertility. On the very onset, this Bill fall short of the Human Rights obligation. By haste the Bill was passed in Lok Sabha is clearly evident. The Bill is unclear on a transgender person’s right to self-identity, which is the basic purpose for which the Bill is supposed to have been conceived.
Sir, the Transgender Persons Bill lay out a broad and inductive definition of transgender persons and a clear distinction between an identity-based recognition rights and the medical procedures some transgender people might want. The Bill says that a transgender person shall have a right to self-perceived gender identity. It’s language could be interpreted to that transgender people are required to have certain surgeries before legally changing their gender.
Sir, this Bill clearly fails on the fundamental rights to self-identity as laid down by the Supreme Court. I would like to ask the Hon’ble Minister that, it’s crucial that the law be in line with the Supreme Court’s historic review on a transgender person’s life. Sir, this Bill to protect the right of a transgender person would not provide full protection and recognition.
It is important to mention the work done by the West Bengal Government under Mamata Banerjee in this area. Bengal was the first State in the country to set up a Transgender Development Board. It is distributing identification cards to all members of the transgender community, which will take care of education, health and employment related issues.
Manabi Bandopadhyay, India’s first transgender college principal, has been made vice-chairman of the Board. The Board has initiated the employment of transgender persons into the volunteer civic police and has also started building separate toilets or modifying existing ones for transgender students at all State-run and State-aided colleges.
The bill appears to mandate a two-step process for legal gender recognition. First, it requires a trans person to apply for a “transgender certificate.” This can be done on the basis of a person’s self-declared identity. Then, a certificate holder can apply for a “change in gender certificate,” which signals to authorities to change their legal gender to male or female.
This second step appears to require surgery and then documentation by a medical authority confirming it. The bill empowers the district magistrate to judge the “correctness” of the application and decide whether to issue the change in gender certificate. And in case the individual is denied the certificate, the Bill mentions no provisions for an appeal or review of the decision taken by the District Magistrate.
The Bill states that the Government shall formulate welfare schemes and programmes which are transgender sensitive, non-stigmatising and non-discriminatory but it is unclear about the criteria under which transgender people would be eligible to avail the benefits of such schemes.
To enact a law that meets international standards it is critical that Parliament fully bring transgender people into conversation. The Supreme Court in NALSA vs India ruled that transgender people should be recognised as a third gender and enjoy all the fundamental rights while also being entitled to specific benefits in education and employment.
In 2018, in a historic decision upholding privacy and non-discrimination of LGBT persons, the Supreme Court struck the down the Colonial era Sodomy Law that criminalise consensual same-sex relation.
In the Bill, penal provision for sexual assault against a transgender person is imprisonment for a period of minimum six months to maximum two years only whereas for others, sexual assault is punishable by imprisonment of not less than seven years and maximum of life imprisonment. Hon’ble Minister, this is perhaps one of the biggest flaws of the Bill in its present form. It clearly encourage the rape and sexual assault of a transgender person.
Sir, Bill should properly enlist the right of a transgender person to marry, adopt and inherit property. Since the transgender is basically unemployed and without a definite regular income the Bill should provide free-sex reassignment, surgeries, hormone therapy, laser therapy or any other health treatment for transgender in both public and private hospitals.
The Bill should include setting of National and State Transgender Commissions on the lines of Women’s Commission. The ultimate goal of this Bill is to provide gender identity, the creation of third-gender, create space third gender and not accommodate between within first and second gender as according to the landmark Supreme Court judgment. When the third gender comes into being we have to provide the facility of all kind of socio-economic etc as provided to the other two genders.
Sir, Lok Sabha known as the House of people can now be known as the House of Haste, but we are the House of Elders. We have to act sensibly after all with maturity and sensibility. This half-baked Bill, if becomes a Law will surely be chaotic on ground and our already over-burdened judiciary will be flooded with avoidable litigation.
I would like to remind the Hon’ble Minister, that transgender person born in every religion and every caste, in every language and every community around the world. Hence this Bill can be safely stated as mega Bill which will have far reaching consequences in the lives of other two genders and hence should be referred the Bill to a Select Committee at this state. I would like the Hon’ble Minister to clear my doubts.
Thank you, Sir.