The Transgender Persons (Protection of Rights) Bill 2016 was drafted by the Ministry of Social Justice and Empowerment as a response to the landmark judgment of the Supreme Court in National Legal Services Authority v Union of India to fulfil its obligation of safeguarding transgender persons’ rights under the Constitution. The Minister of Social Justice and Empowerment, Thaawar Chand Gehlot, in the Statement of Objects and Reasons, declared that the objectives of the Bill are inter alia to define transgender persons, prohibit discrimination, establish a process of recognition and punish violations of the Bill. This comment will critically assess whether this Bill may achieve the self-targeted aims and the obligation under the National Legal Services Authority v Union of India judgment. To provide alternative solutions, it will draw comparison to foreign legislation.
1. The Self-perceived Gender Identity: Definition and Recognition
Section 4(2) of the Transgender Persons (Protection of Rights) Bill, 2016 grants the right to self-perceived gender identity to all transgender persons who may be recognised as such by the state via an issuance of certificate of identity as a transgender person by the District Magistrate. A Transgender person is defined in Section 2 (i) as a person which is “neither wholly female nor wholly male”, a “combination” of both or “neither female nor male” and the gender assigned at birth does not match with their own perceived gender identity. By using the terms “female” and “male” in contrast to the concept of own perception of gender identity in the latter part of the provision, the definition clearly relies on the biological characteristic of the person, which may be internal (like chromosome) and external features (like breast). Argument e contrario possessing the only features of one sex bars a person from being recognised as a transgender person. Thus, a person with “wholly male” biological features is forced to have a Sex Reassignment Surgery (“SRS”) to become a person with not “wholly male” features. As internal features like chromosome may not be changed through a SRS, the person may not be then “wholly female” either. Only in such a scenario a person, which is born with the biological features of one sex may fall in the scope of transgender person under this Bill as “neither wholly female nor whole male”. Further, there is no mention of a right to gender identity of giving the right to a person to identify herself or himself as male or female irrespective of his or her biological gender. This is overtly contrary to the very essence of the National Legal Services Authority v Union of India judgment, which ruled that the “core of one`s personal self, [is] based on self-identification, not on surgical or medical procedure”.
Furthermore, only those persons who may claim to be transgender as per section 2(i) of the Bill and get legally recognized as such as per the provisions of the Bill, shall have the right to self-perceived gender identity. It is pertinent to note that the Bill defines ‘transgender’ and not ‘gender identity’. Gender identity is defined as a personal conception of oneself as male or female (or rarely, both or neither)”. The right to self-perceived gender identity is thus understood and enforced in other jurisdictions like the United Kingdom and Argentina to enable a person to identify as male, female, both or neither. In other words, other jurisdictions recognize the conception of gender identity as opposed to expressly defining a ‘transgender’ in order to protect transgender rights. The current Bill, however, grants this right only to persons who would have already been granted the certificate of identity as transgender. The Bill thus takes away the right of transgender to be either male or female and their right to self-perceived gender identity becomes redundant.
The provision therefore reinforces injurious stereotypes and predisposes transgender to both social and legal disentitlements in blatant disregard to the Supreme Court’s earlier affirmation in National Legal Services Authority v. Union of India that gender identity self-identified gender can be either male or female or a third gender (like Hijras).
Besides, the recognition process formulated in the Bill is onerous which defeats the very self-identification principle. It is also needlessly restrictive as individuals who may successfully claim to be transgender apparently will have no “special” rights, besides the “ordinary” right to be treated equally. This is despite the conflicting stance which was taken by the judiciary in National Legal Services Authority v. Union of India, where the Court had emphatically observed that the right to self-perceived gender identity should be recognized as existing in the realm of basic human rights which could neither be granted nor taken away by any social or legal system. The Bill clearly discounts the proposition of the Supreme Court that gender identity is the core of personal self, which needs to be based on self-identification.
2. Non-Discrimination – ‘unfairness’ as vague concept and lack of enforcement procedure
The Bill prohibits discrimination against transgender persons in Section 3 and Section 10 (1). Section 3 applies to any “person” in areas of inter alia education, employment, health care, goods, accommodation, housing, services and benefits. Section 10 (1) obliges an “establishment”, defined in Section 2 (b), not to discriminate in regards to employment. Section 10 (1), however, does not define discrimination. Only Section 3 describes discrimination as denial, discontinuation, termination or unfair treatment.
Discrimination always needs a relation between the protected characteristic (here Gender Identity) and the conduct (like denial). The Bill employs the concept of unfairness as such a link. Unfair treatment amounts to discrimination. Only if an employer unfairly links the gender identity to his/her treatment it will amount to discrimination. The other actions such as “denial” or “discontinuation” of services also need to be linked by clarifying that such denial is ‘because’ the person is transgender. As the Bill does not expressly link such discriminatory conduct, it is likely that the interpretation is guided by the broadest and the only term which provides a link, unfair treatment.
Unfairness, however, is a vague term and falls short in providing effective protection against discrimination. The concept of unfairness provides the discriminator with a tool of defence. It might be interpreted subjectively as not amounting to be unfair, if the discriminator did not intend to be unfair, or objectively that the discriminator did reasonably and justifiably link his or her action to the person’s gender identity. Either subjective or objective, the courts will have to assess the justification. With the current stigmatization of transgender persons, and without any guidance the Bill is likely not to provide substantial protection against discrimination.
A comparison to other legislation and jurisdictions might show a suitable alternative. The Equal Remuneration Act 1976 demands in Section 4 (1) a “less favourable” link between the conduct (lower payment) and the characteristic of gender. This approach obliges the courts to a value-free comparison of whether the person of the other gender is treated more favourable. Also the Equality Act 2010 in United Kingdom follows the “less favourable” approach in regards to direct discrimination in Section 13. This concept gives a clearer guideline to the courts. If it is deemed to be necessary the Bill may provide express exceptions for situations in which the less favourable treatment should not amount to discrimination. The achieved legal certainty is necessary to provide adequate protection of transgender persons, which the current Bill with the concept of unfairness fails to provide.
Furthermore, the Bill does not consist of an enforcement procedure in regards to a violation of the non-discrimination duty. Enforcement, however, is crucial as an act only has a dissuasive effect if the consequences are persuasive. The Bill merely requires in Section 23 (1) the “appropriate Government” to establish rules for carrying out the provisions of the Act. Thus, it is even not clear from the Bill itself, whether the Central or the State Government are responsible for providing the rules of enforcement in regards to the non- discrimination.
The discrimination duty through the principle of unfairness and lack of enforcement is ineffective to achieve the self- targeted aims and meet the obligations of the constitution after the National Legal Services Authority v Union of India judgment. The definition of transgender persons falls overtly through its biological dogma short in respect of the constitutional recognition under National Legal Services Authority v Union of India. Lastly, the process of recognition is unnecessarily strict of restricting the constitutional right to self-identify your Gender Identity.
 The Transgender Persons (Protection of Rights) Bill, 2016, s 4(1).
 The Transgender Persons (Protection of Rights) Bill, 2016, ss 5 – 8.
 National Legal Authority v Union of India, (2014) 5 SCC 438) §76
 Shuvo Ghosh, ‘Gender identity and gender role’ (Medscape News & Perspective, March 16 2015) <http://emedicine.medscape.com/article/917990-overview>
 See Gender Recognition Act, 2004.
 See The Argentina Gender Identity Law, 2012.