Daily Times

During the Winter Session of Parliament, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2018. Ostensibly aimed at recognising and protecting the rights of the transgender, intersex and gender non-conforming community, and following up on the Supreme Court’s landmark 2014 judgment in NALSA v Union of India, the Transgender Bill has been controversial throughout its career in Parliament. After initial drafts were criticised by stakeholders, the Lok Sabha then passed an amended version of the Bill, which it has sent on to the Rajya Sabha for its consideration.

While the amendments remove one of the most problematic aspects of the earlier draft Bill – a transgender person is no longer defined as “one who is neither male nor female” – the current Bill continues to retain other, heavily criticised provisions. Consequently, in its present form, the Bill not only falls well short of meeting the constitutional aspirations of the transgender, intersex, and gender non-conforming persons, but also causes them active harm. Unsurprisingly, therefore, it has been met with nationwide protests. Two issues are worthy of specific mention.

Self-determination: It is now widely recognised that gender identity is a deeply and intensely personal experience. Socially, the world of gender is divided into the binary of “male” and “female”, and these socially inscribed identities are believed to track certain unchangeable biological attributes. However, our experience of gender identity is subjective and fluid; sometimes, it does not match the gender that society “assigns” to us at birth, and sometimes it escapes the male-female binary altogether. The Transgender Bill acknowledges this in its amended definition of “transgender”; however, when it comes to legal recognition, the Bill retains the requirement – found in previous iterations – that legal status as a transgender, intersex or gender non-conforming person depends upon a certificate being issued by a magistrate, and also the performance of gender affirmation surgery.

It must amend the Trangender Bill in a manner that furthers the constitutional rights of dignity, autonomy, and equality

However, effectively outsourcing the determination of gender identity to a State official negates the individual’s fundamental right to autonomy and self-determination. It also sends a message that while it is “normal” to continue to identify with the gender that one is assigned to at birth (cis-identity), it is deviant and abnormal to experience the opposite (trans-identity). To understand why this is unjust, consider a situation where each one of us has to get a certificate from a magistrate before we can be recognised as a “man” or a “woman”. We would consider such a requirement as both absurd and demeaning, a hallmark of a totalitarian State. Therefore, to make the recognition of trans-identity subject to the determination of the State – to say nothing of the requirement of gender affirmation surgery – amounts to a clear violation of the constitutional rights of transgender, intersex and gender non-conforming persons.

Affirmative action: In the NALSA judgment, the Supreme Court recognised that the transgender community has been historically persecuted, deprived, and denied access to the economic, social, and cultural opportunities that are necessary for leading a dignified and fulfilling life in society. The court therefore directed that the community be treated as a “socially disadvantaged” class under the terms of the Constitution, and therefore, entitled to reservations.

The Transgender Bill, however, makes no mention of reservations, contenting itself, instead, with the anodyne phrase “rehabilitation”. This will not do. Our constitutional philosophy has long recognised that it is the positive duty of the State to take active steps in order to remedy centuries of structural and institutional disadvantage. The courts have recognised that the philosophy of equality underlying the Constitution is not merely “formal equality” – treating likes alike – but “substantive equality” – that is, removing systemic barriers to opportunity through remedies such as reservation, with the objective of creating genuine equality in society. In denying that remedy to the transgender, intersex and gender non-conforming community even after the holding in NALSA, the Transgender Bill violates this constitutional promise.

As the upper house of Parliament, the Rajya Sabha exercises a crucial role in the “checks and balances” system of parliamentary democracy. In particular, the Rajya Sabha is meant to introduce a spirit of measured and reflective deliberation to the legislative process, free from the majoritarian passions that can often sway the lower house. It is now, therefore, the task of the Rajya Sabha to listen to the voices of the community, and amend the Transgender Bill in a manner that furthers the constitutional rights of dignity, autonomy, and equality.

The writer is a lawyer in the Supreme Court

Published in Daily Times, January 7^th 2019