The Supreme Court Monday sought the Centre's response on a plea challenging the constitutional validity of the 2019 law on protection of rights of transgenders 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, a transgender activist.
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 transgenders 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.
The fresh plea has alleged that subjecting such a person to gender identification and certification from the state is discriminatory as a non-transgender is not required to go through such a process for certification of gender identity.
The Act mandates for a transgender 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 and the process of certification fails to pursue any legitimate state aim and hence is disproportionate.
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"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.
"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 or sexual abuse of a transgender, which is completely arbitrary and irrational, the petition said.
It alleged that the Act negates even the protection secured to transgender 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 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 protection of rights of transgenders after a motion to refer it to a select committee of the Upper House was defeated. The Lok Sabha had passed the bill on August 5, 2019.