Aditi Behura, National Law University, Delhi
Abstract
Multiple Bills seeking to protect the rights of transgender individuals have been introduced since the judgment was passed in the case NALSA v. Union of India. However, these Bills, including the Transgender Persons (Protection of Rights) Act, 2019, which has been passed by the Lok Sabha, have failed to incorporate many progressive provisions laid down in this judgment. Amongst other issues, the 2019 Act has failed to acknowledge the right of a transgender individual to self-identification of gender, and has provided a discriminatorily lenient punishment for the sexual abuse of a transgender individual in comparison to that of a cis-gendered woman as provided by Section 376 of the Indian Penal Code. Furthermore, the Act has failed to provide for reservation in various fields for the transgender community. The Act has also included a provision which compels a transgender child to live with their parents or immediate family unless an order is attained from a competent court, upon which the child is to be placed in rehabilitation centre. This paper has highlighted how the Act is not only discriminatory in nature, but also how the very community this Act seeks to protect was excluded from the discussion on their welfare. Further, this paper has put forth various arguments as to why the provisions which were not included in the Act are, in fact, essential for preventing the violation of their rights as well as for protecting their dignity.
Keywords: Transgender rights, self-determination, violation of rights, gender inequality, reservation, third gender, sexual abuse
