SC issues notice to Centre on petition challenging ‘toothless’ Transgender Act

Tribune News Service
New Delhi, January 27

Two months after Parliament passed the Transgender Persons (Protection of Rights) Act, 2019, the Supreme Court on Monday issued notice to the Centre on a petition filed by a transgender activist challenging its constitutional validity.

 A Bench headed by Chief Justice of India SA Bobde asked the Centre to respond to transgender activist Swati Bidhan Baruah’s petition that alleged that the Act passed with the stated objective of protecting transgender persons but in effect it negated their rights. She alleged that the Act was “completely toothless” as there was no remedy provided for in it to deal with violation of its provisions.

“The Act treats trans-persons with suspicion and several provisions of the Act evince and reinforce the very prejudice that the legislation ought to have aimed at eliminating”, the petitioner submitted.

 The Supreme Court had in 2014 directed the Central Government and state governments to take steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their fundamental and statutory rights. It has also said transgender persons should be given reservation in public employment and education in the category of ‘Socially and Economically Backward Class’.

It was only after that the Transgender Persons (Protection of Rights) Act was passed by the Lok Sabha in August 2019 and then by the Rajya Sabha in November 2019. The Act provides for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.

For asserting one’s identity as a transgender, one has to get a certificate from the District Magistrate concerned. Even if a person undergoes a gender arming surgery, such certifice from the District Magistrate concerned was mandatory, the petitioner submitted.

The petitioner contended that such provisions were “invasive and violative of the personal dignity and privacy of transgender persons and went against the top court’s verdict which said self-identification of gender is a right of transgender persons. The Act has replaced “self-identification” with “state-identification”, Baruah submitted.

 The process of certification is unnecessarily invasive and fails to achieve a balance between the right in question and the state aim of effectuating self identification. The method prescribed completely deprives trans-persons of their right to privacy,” the petitioner contended.

 The petitioner faulted the Act for failing to provide for reservation and merely stating that the State shall take welfare measures. Reservation being a facet of equality was a necessary measure that Parliament should have incorporated in the Act, Baruah submitted.

 Unlike rape of women—which is punishable with imprisonment extending up to life term—sexual abuse of a transgender person is punishable only with a jail term ranging from six months to two years, the petitioner contended, terming it discriminatory.