The Supreme Court Monday, 27 January sought the Centre's response on a plea challenging the constitutional validity of the 2019 law on the protection of rights of transgender people on the ground that it restricts their right to self-identification.
A Bench, comprising Chief Justice S A Bobde and Justices B R Gavai and Surya Kant, issued notice to the Ministry of Social Justice on the PIL filed by Swati Bidhan Baruah, an activist who is transgender.
The plea has sought that the Transgender Persons (Protection of Rights) Act, 2019 be declared unconstitutional saying it restricts the right of such persons to self-identify their gender by subjecting it to certification from the State.
The issue of protection of rights of transgender people had also cropped up when the apex court was hearing the matter relating to NRC in Assam when the association had sought a chance for them to file the forms.
State-Identification Is Not Self-Identification
The fresh plea has alleged that subjecting such a person to gender identification and certification from the State is discriminatory as a non-transgender person is not required to go through such a process for certification of gender identity.
The Act mandates for a transgender person to undergo certification of gender identification by a District Magistrate and additionally the person may also have to go through a gender-affirming surgery by a medical officer, it said.
The plea said the Act constitutes disproportionate interferences with the right to privacy of a transgender person and the process of certification fails to pursue any legitimate state aim and hence is disproportionate.
"It cannot be said that the aim of the state is to give effect to the right to self-identification as the process in its very nature is state-identification of transgender and not self-identification.”
“The process of certification fails to pursue the legitimate state aim of giving effect to the right to self-identification,” the petition said.
"For that, the process of certification is not a suitable method of giving effect to the right to self-identification. The means adopted in fact is completely contrary to the stated aim of giving effect to the right to self-identification," the petition said.
The Act permits the imposition of as little as six months imprisonment for offences such as endangering the life of a transgender person or sexual abuse of a transgender person, which is completely arbitrary and irrational, the petition said.
Provisions ‘Completely Toothless’: Plea
The petition alleged that the Act negates even the protection secured to transgender people by the apex court in its earlier NALSA judgment and said that the provisions given in the Act are "completely toothless" and no remedy has been provided for violation of these provisions.
The plea alleged that the Act treats transgender people with suspicion and several provisions of the Act evince and reinforce the prejudice that the legislation ought to have aimed at eliminating.
"The impugned Act is a regressive piece of legislation which is more likely to harm the interests of the transgender community in India. The impugned legislation has several provisions which suffer from the vice of arbitrariness and vagueness," the plea said.
The Rajya Sabha had in November last year passed the Transgender Persons (Protection of Rights) Bill, 2019 on the protection of rights of transgender people after a motion to refer it to a select committee of the Upper House was defeated. The Lok Sabha had passed the bill on 5 August 2019.
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