India: Fortify Bill Protecting Transgender People

(New York) – The Indian government should strengthen its groundbreaking bill providing legal protections for the country’s transgender population, Human Rights Watch said today in a letter to the Ministry of Social Justice and Empowerment. The Rights of Transgender Persons Bill, 2015 should be improved through broad consultations throughout the country with transgender people and groups.

“The Transgender Persons Bill will help protect and empower India’s transgender population, but the government needs also to address the bill’s shortcomings,” said Meenakshi Ganguly, South Asia director. “With the input of the transgender community, the government should ensure that a new law lays out a strong legal framework in line with the constitution and international law, and provides effective enforcement.”

The Transgender Persons Bill resulted from the 2014 Supreme Court judgment NALSA v. India, which ruled that transgender people should be recognized as a third gender, enjoy all fundamental rights, and receive special benefits in education and employment.

The bill allows for legal gender recognition – or the recognition of the appropriate gender for transgender people on official documents and registers – removing a fundamental barrier toward realizing basic human rights, including protection from violence and discrimination. However, it proposes that identity certificates be issued based on the recommendation of a screening committee that includes government officials, medical professionals such as a psychologist and a psychiatrist, a social worker, and two representatives of transgender community.

The bill should be amended to ensure that self-identification is the sole criterion for legal gender recognition without psychological, medical, or other “expert” intervention. This self-declared identity should form the basis for access to all social security measures, benefits, and entitlements. Any psycho-social or medical support related to gender affirmation or recognition should be available independent from legal processes.

The bill should also be expanded to include protections to address the specific concerns of intersex persons. Instead of criminalizing self-harm, the government should take action to combat the legal and structural causes that contribute to such marginalization and poor mental health outcomes.

The bill should also specifically address the rights of transgender and gender non-conforming children, including their right to access education. The proposed text currently lacks clear monitoring and accountability mechanisms, essential for its effective implementation.

“The Transgender Persons Bill offers the promise of both changing archaic laws and thinking about transgender people in India,” Ganguly said. “The government has taken the first steps to providing transgender people legal protections. Now it needs to strengthen the draft to ensure good intentions are turned into a reality.”