The Supreme Court issued a notice to the central government on Monday on a petition alleging that a legislation drafted to protect transgender persons was violative of their rights.
The plea filed by advocate and trans activist Swati Bidhan Baruah challenged the validity of the Transgender Persons (Protections of Rights) Act, 2019, arguing that it treats the trans community with suspicion and reinforces prejudices against them.
The petitioner said the Act, instead of furthering or protecting the rights of transpersons, violates their right to equality, life and privacy under Articles 14 and 21 of the Constitution.
Sections 4 to 6 of the Act provides for a method of state identification of transpersons by a process of certification by a district magistrate.
This, the petitioner submitted, is violative of rights to self-identification of gender, which is part of right to life under Article 21 as recognised in the 2014 judgment of the Supreme Court in NALSA v Union of India.
“The Act restricts right of transpersons to self-identification of gender identity by making it conditional on a certificate issued by District Magistrate (DM),” the petition said.
Further, the petitioner said sections 4 to 6 violate the right to equality under Article 14 since a non-transperson is not required to go through the process for certification of gender identity.
“NALSA judgment gave us something valuable: the right to self-identification of gender. This Act nullifies it by requiring transpersons to get a certificate from a district magistrate,” senior counsel Anitha Shenoy, who represented the petitioner, told HT.
Further, the petitioner argued that the provisions in the Act intended to grant protection against non-discrimination are completely toothless since no remedy has been provided in case of violation of those provisions.
Section 18 of the Act, which prescribes punishment for offences against transgender persons, was criticised on the ground that it clubs dissimilar offences together, and prescribes a common punishment for the same.
In 2014, the Supreme Court, in a landmark judgment in NALSA v. Union of India, ruled that discrimination against transgender persons is in violation of Articles 14, 15 and 21 of the Constitution.
The Transgender Persons (Protection of Rights) Act was passed by the Lok Sabha in August 2019, and Rajya Sabha in November 2019. It received presidential nod on December 5, 2019.
“We hope the contention we raised in the petition will be justified and the act will be declared ultra vires,” Baruah said.
