The Upper House of Parliament must revise the Transgender Persons (Protection of Rights) Bill, 2019, which was passed by the Lower House of Parliament on 5 August 2019.
The Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations, the ICJ said today.
The Government introduced the Transgender Persons (Protection of Rights) Bill, 2019, before the Parliament on 19 July 2019. It was passed by the Lok Sabha (the Lower House of Parliament) on 5 August, 2019, despite a lack of consultation with the transgender community and serious weaknesses in the Bill, which would be in violation of the Supreme Court’s NALSA judgment.
“If the Upper House of Parliament adopts the Bill in its current form, without any amendments, it will miss an important opportunity to introduce a law that respects, protects and fulfills the human rights of transgender people as required by the Supreme Court’s decision in NALSA v. UOI and India’s international obligations,” said Frederick Rawski, ICJ Asia Pacific Director.
The current draft, fails to address key concerns that have been repeatedly raised by the transgender community and human rights organizations.
Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI.
Moreover, the Bill sets out lighter sentences for several criminal offences, such as “sexual abuse” and “physical abuse”, when they are committed against transgender people. In addition, the Bill does not adequately define these offences and retains provisions that could be used in a discriminatory manner to target transgender people for criminal prosecution. It also fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
The ICJ has recommended the deletion of provisions that mandate sex reassignment surgery and that set out lighter sentences for criminal offences against transgender people. In addition, the ICJ recommends the inclusion of provisions addressing affirmative action for transgender persons in education and employment.
“We urge the Upper House of Parliament to address these deficiencies before passing the Bill into law, in accordance with India’s constitutional and international law obligations, and to ensure meaningful consultation with the transgender community” Rawski said.
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
ICJ 2019 Report on India Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. The Report details human rights violations suffered by LGBTQ persons in their family homes, workplaces, and public spaces including streets, public toilets, public transport and shopping centres.
ICJ Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.NewsPress releases