The Transgender Persons (Protection of Rights) Bill 2019 (‘the Bill’) (a full text of the Bill is available here) was strategically introduced in the Rajya Sabha on 20th November 2019 being Transgender Day of Remembrance by the Minister of Social Justice and Empowerment, Mr. Thawarchand Gehlot. The Bill had previously lapsed after the dissolution of the Lok Sabha on account of the general elections and was reintroduced and duly passed by the Lok Sabha on 5th August 2019. The Bill was passed by the Rajya Sabha after three days of debate on November 26, 2019.
A full transcript of the debates in the Rajya Sabha before the passing of the Bill is available here.
November 20, 2019
On the first day after the Bill was presented, a majority of the MPs welcomed the Bill, but voiced their reservations about some of the provisions.
Jaya Bachchan was vocal about the need for rethinking the finer details of the Bill that mandates the role of a Screening Committee in issuing a transgender certificate to the individual seeking change in gender. She emphasized that the very procedure for recognising a transgender person segregates them from other citizens and that this Bill if passed, could backfire as a law that forcibly imposes a transgender identity on a gender non-conforming person. Echoing her view, Shanta Chhetri of AITC and Vijila Sathyananth of AIADMK raised concern over the certification procedure that allows the individual to self-identify their gender but still mandates confirmation from a District Magistrate.
Rajeev Gowda observed that the lack of a clear definition of discrimination against transgender persons would impede its prohibition and grievance redressal and he proposed an amendment offering an encompassing definition.
Sasmit Patra of BJD stressed upon was the need for State and District level Councils for Transgender Persons, apart from National Councils.
Several MPs mentioned the need for reservations for the socio-economic development of the trans community which is not addressed in the Bill. Manoj Kumar Jha and Vijila Sathyanath suggested that 5% reservation in education and employment would help mainstream transgender persons in society.
Dr. L. Hanumanthaiah criticized the discrepancy in the penalty for sexual crimes against a transgender person which carries a light sentence of upto 2 years in prison, whereas rape against a woman under the IPC warrants life-term sentence which may extend to death in the rarest of rare cases. He urged the House to send the Bill for review instead of hastily passing it. Most MPs suggested that the Bill be referred to a Select Committee.
Countering the dissents Ashok Bajpai and Anil Agarwal supported the immediate passage of the Bill as a long-awaited legislation that extends protections to transgender persons and were of the view that “justice delayed is justice denied” and argued that sending it to a Select Committee would delay it and amendments could be made later.
November 21, 2019
The debates on the Bill continued in the Rajya Sabha on November 21, 2019 amidst strong protests by the transgender community who claim that the Bill violates their personhood and rights in the name of protecting them, and hence is in support of the Bill being referred to a Select Committee for amendments.
The debates began with Suresh Prabhu (BJP) who was in support of the Bill being passed with minor amendments. He pointed out that although discrimination is defined comprehensively in the Bill, the Bill must have a provision similar to the SC/ST (Prevention of Atrocities) Act, 1989, which specifically prohibits verbal abuse. He referred to the process for issuance of certificate of identity by the District Magistrate (‘DM’) as a welcome provision although he insisted that the Act must prescribe a time limit within which the Magistrate must act, lest it will amount to a denial of the right to identity. He also insisted that the welfare measures provided for in Chapter IV of the Bill be amended to place responsibility not only on the Central and State Governments but also on local governments in order to make the benefits easily accessible. He also felt that including only five representatives of the transgender community as members of the National Council of Transgender Persons (‘the National Council’) was disproportionately low and that their participation should be enhanced.
Next, Sanjay Singh (AAP) was in support of Tiruchi Siva’s (DMK) proposal for the Bill being sent to the Select Committee for amendments. He was of the view that the Government should have passed the private member bill earlier introduced by Tiruchi Siva as it is without amendments, as the Bill in the present form excludes important provisions of the private member bill such as the 2% reservation in education and public employment and the constitution of a National Commission for transgender persons. He strongly voiced the concern that the Bill insults transgender persons and commits injustice by requiring them to undergo medical examination in order to confirm their identity.
Ashok Siddharth (BSP) was in support of the Bill being passed. Importantly he pointed out that those included as ex-officio members of the National Council for Transgender Persons are already overburdened by their own official duties and this alongside the absence of provisions to mandate a minimum number of meetings per year, procedure to be followed etc. risks the working of the body as a mere formality. Shiv Pratap Shukla (BJP) stood in support of the Bill and insisted that the issuance of certificate of identity by the DM is necessary to prove their identity when lodging complaints of harassment or discrimination before the Court. He also suggested that the Central and State governments should make separate community toilets for them.
Vandana Chavan (NCP) voiced grave concerns with the Bill and was in support of it being referred to the Select Committee. She pointed out that the Bill is deeply problematic for non-inclusion of self-identification of gender identity, and that the need for the DM to be satisfied about the correctness of the certificate of the sex-reassignment surgery is violative of transgender persons’ rights. She noted how the Bill unfairly imposes low penalties for the same offences committed against transgender persons as compared to when the victim is a cis-woman and how it fails to extend reservations for transgender persons.
Binoy Viswam (CPI) was in support for reference being made to the Select Committee in noted that exclusion of important provisions from the private member bill reduces the effectiveness of the Bill. Noting that the Bill violates the Constitution’s equality provisions, he loathed the exclusion of provisions providing for horizontal reservation in employment and for civil rights in matters of acquisition of property, adoption and inheritance.
Wilson (DMK) asked the Bill to be sent to the Select Committee. He noted that the Bill fails to recognize transgender persons as belong to the third gender, and this is a major loophole as this separate identification is needed to claim both reservation and identity documents such as passports. Importantly he voiced the concern that the Bill fails to recognize members of the transgender community as fully human and it fails to create a special provision to tackle sexual harassment.
November 26, 2019
The debates on the Bill continued in the Rajya Sabha on November 26, 2019 where despite strong opposition, the Bill was finally passed.
Tiruchi Siva (DMK) questioned the procedure followed for passing of the Bill by the Lok Sabha, where the Bill was simultaneously passed with the Jammu & Kashmir Reorganization Bill without any substantial debate on its provisions. He contested several aspects especially that the Bill does not provide for the definition of discrimination. He highlighted that the Bill requires transgender persons to go for screening to provide proof of their identity and that such kind of humiliation should not be inflicted upon any citizen. Further, he suggested that the National Council for Transgender Persons should have the powers of a civil court. He also demanded for horizontal reservations for the transgender community within the parameters of already existing reservations. Finally, he highlighted the discrepancy in the penalty imposed for sexual abuse against transgender persons when compared to the sexual abuse against women victims. Tiruchi Shiva requested for the Bill to be scrutinized by the Select Committee and appropriate revisions made to its provisions.
Vijay Reddy (YSRCP) supported the Bill but also had no objection if it was sent to the Select Committee. He suggested that Section 4(2) of the Bill, which talks about self-perceived gender identity should be amended as it can be misused by peoples to claim benefits. Rupa Ganguly (BJP) supported the identification by a District Magistrate as identification by a government official will prevent harassment and discrimination against transgender persons. In contrast to this, K. Keshava Rao (TRS) stated that as per the Supreme Court’s judgment in NALSA vs. Union of India, an individual can determine one’s identity and there was no need for certification. Navaneethakrishnan (AIADMK) suggested that reservation should be provided in education and employment. Satish Chandra (BSP) argued that as the implementation of the Bill is to be controlled by the National Council, a provision mandating periodic meetings of the National Council should be inserted, or in the alternative an equivalent provision should be made in rules. He further stated that Section 18 of the Bill does not subscribe penalties if the police officers refuse to register their complaints or the doctors refuse to provide them services and that such penalties should be added.
Thaawarchand Gehlot (Minister), in response to the contestations made by the MPs stated that the Bill had taken into consideration the 2014 private member’s Bill, the NALSA judgment, and the suggestions of the Standing Committee. He stated that the offence of sexual abuse against transgender persons provided for in the Bill could not be equated to rape and therefore the punishment for both offences cannot be same. He clarified that the offenses against transgender persons will be dealt with under the Indian Penal Code and Section 18 deals only with sexual abuse.
Out of a total of 116 members, one was absent, 48 voted ‘yes’ and 67 voted ‘no’ for sending the Bill to the Select Committee and for moving the amendment proposed by Tiruchi Shiva. Thus, the Bill was passed in its existing form, much to the resentment of the transgender community.
– This post was authored by Elizabeth Mathew, CLPR intern, Devi Jagani, Equality Fellow, CLPR and Manisha Arya, Research Associate, CLPR.