The Transgender Persons (Protection of Rights) Bill, 2016 seeks to introduce anti-discriminatory and welfare measures for transgender persons in India. The Bill comes two years after the landmark NALSA judgment of 2014 which recognized the fundamental rights of transgender persons and gave broad directives to the government to facilitate the realization of these rights. This Bill is a critical opportunity to correct the historical wrongs perpetrated on transgender persons, and to guarantee them a life of dignity and equal opportunity.
Upon close examination, we find that there are several counts on which this Bill fails to deliver, some of which are listed below:
● First, the Bill significantly deviates from the NALSA judgment
● Second, the anti-discrimination provisions in the Bill are weak and limited in scope. For instance, the Bill fails to define the key term “discrimination”
● Third, the Bill lacks adequate accountability mechanisms.
● Fourth, the Bill sets up a Screening Committee to certify transgender persons, which runs against the right to self-identification recognised in NALSA.
In sum, this Bill appears to be an unsatisfactory attempt to achieve its stated purpose: the protection of rights of transgender persons. It is recommended that the Bill be redrafted and brought in line with the directions of NALSA, as well as the recommendations of the Expert Committee Report. This would imply changes in the definition of ‘transgender’, use of rights-based language, a provision on reservations, clear delineation of obligations of different governments and relevant stakeholders, introduction of an effective National Council, a powerful enforcement mechanism, and crafting of comprehensive welfare measures, including measures for creating awareness and sensitizing stakeholders about concerns of transgender persons. Most importantly, the process of redrafting must be in conjunction with extensive consultations with transgender persons including marginalized voices such as transmen and intersex persons.