Advocates Raise Concerns Over India’s Transgender Rights Bill

The landmark bill ensures new rights, but falls short of meeting basic obligations, Human Rights Watch warns.

A transgender rights bill first introduced in 2016 is set to come up for debate and a vote this week. But human rights advocates are questioning certain aspects of the legislation, which has seen a number of revisions over the years.

The Transgender Persons (Protection of Rights) Bill, 2019, was introduced in parliament on July 19, and has been the subject of controversy both within and outside of the trans community in India for years.

India’s Supreme Court ruled in 2014 in favor of a transgender person’s right to self-identify, but Human Rights Watch says the bill does not clearly ensure that right.

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It lays out an inclusive legal definition of what it means to be a trans person, as well as including mention of intersex persons, and states the government will be obligated to prevent discrimination against the community, as well as work to provide access to medical care.

However, Human Rights Watch warns in a new report that while the bill states a transgender person “shall have a right to self-perceived gender identity,” its language could be interpreted to require certain surgeries before a person could legally change their gender.

A two-step process would be required should the bill become law. First, a trans person must “make an application to the District Magistrate for issuing a certificate of identity as a transgender person,” the bill reads.

This first step only requires self-identification, but for a legal gender change must be followed up by “surgery to change gender either as a male or female,” after which time “such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate.”

The magistrate is then empowered to make a call on the “correctness” of the application.

“The Transgender Persons Bill should be a remarkable achievement for a long-persecuted community, but the current draft fails on the fundamental right to self-identify,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “It’s crucial that the law be in line with the Supreme Court’s historic ruling on transgender rights.”

The organization charges that these provisions seem to not only violate the country’s 2014 Supreme Court ruling, but “are also contrary to international standards for legal gender recognition…including those of multiple United Nations agencies, the World Medical Association, and the World Professional Association for Transgender Health.”

Human Rights Watch also argues the bill fails to offer explicit protections for intersex people, such as forbidding “medically unnecessary procedures on children” and requiring informed consent before such operations are performed on adults. The government should also issue them legal identity documents that reflect their preferred gender, the group states.

“Transgender people in India should be able to live with dignity and nondiscrimination, and have equal access to education, employment, and health services.” Ganguly said. “To enact a law that meets international standards, it’s critical that parliament fully bring transgender people into the conversation.”

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