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The transgender s rights and the state

A disturbing facet of Indian legislation is the culture of tokenism that prevails in case of pursuing social issues, like recently witnessed in The Transgender Persons (Protection of Rights) Bill, 2016.

In NALSA v. Union of India, the Supreme Court gave a landmark judgment affirming the fundamental rights of transgender persons. The verdict gave certain directions to the government to introduce social welfare measures including affirmative action for transgender people.
The latest amendment in The Transgender Persons (Protection of Rights) Bill, 2016, which is largely based on the 2014 and 2015 Bill, which were put up for public comments in December, but the provisions on National and State Commissions and the Transgender Rights Courts were done away with. Currently, the 2016 bill has been referred to a Standing Committee. Given the landmark judgment by Supreme Court and sufficient visibility and momentum gathered by the discourse on transgender rights, the watered down version of the bill only reflects insensitivity on the part of the legislature. The latest bill lacks accurate definitions of the term transgender and most significantly, the bill is conspicuous in its absence of provision on reservation as was directed by NALSA judgment. While NALSA judgment took rights-based tone, the bill has left the transgender community at mercy of the “benevolent” state. The bill is also silent on how will it affect the existing laws as most laws related to adoption, marriage and succession are based on the binary of female and male. Even the criminal laws related to sexual offences are gendered. The issue of Section 377 remains unaddressed.


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