By Dharmendra Lambha, School of Law, UPES, Dehradun.

The Transgender Persons (Protection of Rights) Bill, 2016 was introduced by the government of India for the protection and welfare of the transgenders in our country. It was introduced in the Parliament in August 2016 by the Minister for Social Justice and Empowerment after two years of the landmark NALSA judgement, which recognised transgender as the third gender, affirmed their fundamental rights and directed the government to work on a Bill for the protection of their rights. But The Transgender Persons (Protection of Rights) Bill, 2016 suffers from various shortcomings that reduce its capacity to serve as a tool of empowerment for transgender persons.

First, there is a lack of accountability mechanism in this Bill. There is no prescribed time limit under which the welfare mechanism could be implemented, no penalties for non-implementation, and no monitoring provisions for regular submission of report by the authorities. Further, the term “appropriate government” is used in the Bill, which creates a kind of confusion in the duties of different agencies. The unclear division of responsibilities between the Central and State Government(s) allows each to pass the responsibility to the other, causing delays in implementation and further diluting accountability. Vague language employed in various clauses of the Bill additionally reduces the accountability of actors.

Second, there is a provision introducing the Screening Committee, which will decide the gender of the person. Article 21 of the Indian Constitution provides Right to Life and Personal Liberty; NALSA judgement also recognises one’s gender identity as being “integral to a person’s personality and one of the most basic aspects of self-determination, dignity and freedom”, thus a person should have a right to self-identified gender, i.e. male, female or third gender, and this right should be absolute in nature. However, owing to the Screening Process to determine the gender of the person, this right has become conditional.

Further, a Screening Committee which comprises of medical officers implies that being transgender is a pathological condition. The medical officers and social welfare officials may not possess the necessary credentials and sensitivity to do justice to a process which is inherently fraught with a continuing history of harassment.

Also, the requirement of a screening process runs counter to progressive international jurisprudence. For instance, Argentina’s Gender Identity Law, 2012, which is upheld as a Model Law, recognises the right to self determination as absolute and does not require any screening process as a precondition to the exercise of such right. Other jurisdictions have also followed suit.

Third, the Bill deviates from a rights based approach and follows a welfare oriented approach. The importance of the rights based approach is that it provides an agency to the right holders and allows greater access to justice, since the denial of their rights will amount to a violation. Further, there is no clause related to the reservation of some seats in jobs for transgender persons. Earlier versions of the Bill, i.e., The Rights of Transgender Persons Bill, 2014 and The Rights of Transgender Persons Bill, 2015 also incorporated a Chapter on the rights of transgender persons but the 2016 Bill lacks any such chapter.

Fourth, the anti-discriminatory provisions of the Bill are weak and limited in scope and the Bill fails to define the key word “discrimination”.

Fifth, there are no provisions for the amendment of other laws which recognise only the male and female genders, such as family laws (marriage, adoption, succession, etc.) and laws punishing sexual offences. These laws discriminate against transgender persons by preventing them from seeking relief against sexual violence, and from accessing several core societal institutions. The NALSA judgement has also acknowledged the need to make civil rights meaningfully accessible to transgender persons.

Moreover, there is no provision for the establishment of a National Commission for the transgender persons. Although there is a provision for the establishment of a National Council, that might prove to be insufficient. There is also no provision for the establishment of Special Courts to deal with the cases of transgender persons, in order to ensure easy access of justice to them.

Overall, it can be said that the Bill is an unsatisfactory attempt for the purpose of recognition and protection of the rights of the transgender persons. The government should try and overcome these shortcomings, as this Bill, for now, comes across as a toothless tiger alone.