Dhaka, Bangladesh
A law that defeats its purpose

Off the track

A law that defeats its purpose

Jayna Kothari

The Transgender Persons (Protection of Rights) Bill, 2018, passed by the Lok Sabha recently, has caused great alarm. Transgender and intersex activists have protested on the streets, campaigned with parliamentarians and spoken out against the Bill. Is it not an irony that all of this is being done to ensure that the law is not passed? Why is there such a strong resistance to this Bill? Here are the main concerns. In the landmark NALSA v. Union of India judgment, the Supreme Court laid down that transgender and intersex persons have the constitutional right to self- identify their gender as male, female or transgender even without medical intervention. The court held: “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self- determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity”. Hence, medical procedures should not be required as a pre-condition for any identity documents for transgender and intersex persons, nor should there be any requirement of a mental health assessment. Requiring a person to submit proof of medical treatment or mental health assessment of their gender identity violates one’s right to dignity, the right to be free from unwanted medical treatment and the right to be free from discrimination. The 2018 Bill in Section 6 establishes a District Screening Committee for the purpose of recognition of transgender persons. This Screening Committee includes a chief medical officer and a psychologist/psychiatrist, which goes to show that medical and psychological tests would be required for grant of change of gender identity. There is no provision in the Bill that gender change would be permitted without medical or psychological treatment. The Bill also does not allow for recognition of gender identity as male or female. It only allows for an identity certificate as ‘transgender’. This goes against the decision of the Supreme Court, which recognised the right to self-identify oneself as male, female or transgender and would also be forcing intersex persons to get a gender identity as “transgender”. The U.K.’s Gender Recognition Act 2004 was the first law in the world allowing people to change gender without surgery. Since then other countries, including Argentina, Ireland and Denmark, have passed laws that allow people to ‘self-declare’ their gender, rather than seek approval from a panel of medical experts.

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