As per the provisions of the Bill, while a person can still self-identify to apply for a certificate, the actual granting of the certificate shall require an assessment by the district magistrate.
While the Supreme Court’s (SC’s) judgment in National Legal Services Authority (NALSA) vs Union of India is considered a landmark for its progressive stance towards transgender persons, the Centre seems to have undone its gains by clearing the Transgender Persons (Protection of Rights) Bill 2019 in its current form. Instead of guaranteeing the right to self-determination of gender—this was guaranteed by SC in the NALSA case—the Bill vests the power to assign a person transgender status with the government. As per the provisions of the Bill, while a person can still self-identify to apply for a certificate, the actual granting of the certificate shall require an assessment by the district magistrate. In case the person undergoes a surgery, the DM will again examine the correctness of the medical certificate issued by the medical superintendent or chief medical officer. The humiliation of being denied legal status as a transgender person—likely for those who haven’t ‘transitioned’ surgically—will have grave effects on the mental health of persons who already face social and economic ostracism, and sexual exploitation.
Not only this, the Bill’s recognition of sexual abuse of transgender persons is also coloured. The legislation prescribes penalties for sexual abuse, and does not provide similar penalties for rape as those prescribed in cases where the survivor is a woman. The punishment, from six months to to two years, is also milder than that prescribed for sexual abuse of a woman under Section 354 of the IPC. Unless the government changes its approach, the new rules shall only impinge on the rights of transgender persons, not guarantee them.