In its landmark judgement in 2014 (NALSA vs Union of India) Hon'ble SC declared transgenders as the third gender and affirmed that fundamental rights granted under the constitution will be equally applicable to the community. Also, it asked the government to make adequate provisions for the empowerment of the community. As a follow up govt. tabled Transgender Person (Protection of Rights) bill in the parliament in 2016 which was subsequently sent to a parliamentary panel for further improvements. The govt. has reintroduced the bill again in the parliament without any modifications. Due to various provisions of the bill, it has attracted criticism from the community stakeholders on various grounds. Lets us try to analyze what the bill provides and where its found lacking which has led to this criticism.
Transgenders have been one of the most marginalized community since the ancient time as their sense of gender identity did not conform to the prevalent social norm. They are forced to live in separate settlements, deemed fit only for certain professions and castigated by the state & society for no fault of their own. Archaic provisions like section 377 of the IPC restrict their control over their own body and are detrimental to the right to life and dignity provided by Article 21 of the Indian constitution. In this light SC's decision was welcomed & seen as opening up the path to freedom for the community from the shackles of history. However, 2 years after the judgement little difference has been made on the ground.
The bill introduced by the govt. provides a definition of transgender person as one who are neither wholly male or female, or a combination of both female and male. The activists have criticized this definitions as it defines transgenders based on the traditional heterosexual gender norms. Moreover it falls short of providing affirmative support to transgenders in arenas like education & employment. The bill just states that the state will make sure that they will not feel any discrimination due to their gender. It provides for punitive action against those who subject transgender to any kind of violence but does not include public servants under its ambit. Considering that the transgenders have to face maximum exploitation at the hands of police officials via torture in custody, sexual violence and criminalisation by perennial threat of section 377, the bill does little to help to allay this fear.
The bill also falls short of granting civil rights to transgenders like right to marriage, adopt children etc and they will continue to face legal action against section 377 of IPC. The SC judgement was historic in the sense that it provided the right of self determination to the transgenders to define their identity in the way they deem fit. The bill reiterates the self determination in principle but at the same time provides a state level screening committee to grant transgender person a certificate of identity. How the self identification and certification will work parallely is unclear.
It is difficult to comprehend a society where a human being is deemed unfit for certain basic civil rights due to his gender. The union govt. had an opportunity to nudge society to a progressive attitude towards gender identity by building on the SC judgement through a strong legislation. By rejecting all the recommendations of parliamentary committee, the bill will fail its purpose to be a tool of empowerment for the transgender community.
Post Script: SC upheld the validity of Section 377 in 2013 Koushal judgement. By declaring right to privacy as a fundamental right under Article 21 in 2017, SC has paved way for quashing Section 377 as it can be interpreted as violation of privacy of transgender community.
Transgenders have been one of the most marginalized community since the ancient time as their sense of gender identity did not conform to the prevalent social norm. They are forced to live in separate settlements, deemed fit only for certain professions and castigated by the state & society for no fault of their own. Archaic provisions like section 377 of the IPC restrict their control over their own body and are detrimental to the right to life and dignity provided by Article 21 of the Indian constitution. In this light SC's decision was welcomed & seen as opening up the path to freedom for the community from the shackles of history. However, 2 years after the judgement little difference has been made on the ground.
The bill introduced by the govt. provides a definition of transgender person as one who are neither wholly male or female, or a combination of both female and male. The activists have criticized this definitions as it defines transgenders based on the traditional heterosexual gender norms. Moreover it falls short of providing affirmative support to transgenders in arenas like education & employment. The bill just states that the state will make sure that they will not feel any discrimination due to their gender. It provides for punitive action against those who subject transgender to any kind of violence but does not include public servants under its ambit. Considering that the transgenders have to face maximum exploitation at the hands of police officials via torture in custody, sexual violence and criminalisation by perennial threat of section 377, the bill does little to help to allay this fear.
The bill also falls short of granting civil rights to transgenders like right to marriage, adopt children etc and they will continue to face legal action against section 377 of IPC. The SC judgement was historic in the sense that it provided the right of self determination to the transgenders to define their identity in the way they deem fit. The bill reiterates the self determination in principle but at the same time provides a state level screening committee to grant transgender person a certificate of identity. How the self identification and certification will work parallely is unclear.
It is difficult to comprehend a society where a human being is deemed unfit for certain basic civil rights due to his gender. The union govt. had an opportunity to nudge society to a progressive attitude towards gender identity by building on the SC judgement through a strong legislation. By rejecting all the recommendations of parliamentary committee, the bill will fail its purpose to be a tool of empowerment for the transgender community.
Post Script: SC upheld the validity of Section 377 in 2013 Koushal judgement. By declaring right to privacy as a fundamental right under Article 21 in 2017, SC has paved way for quashing Section 377 as it can be interpreted as violation of privacy of transgender community.
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