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Supreme Court Bench of Chief Justice SA Bobde, Justice AS Bopanna and Justice V Ramasubramanian, while hearing a plea seeking constitution of ‘Transgender Person Welfare Board’ and 'standing committees', issued notice to the respondents.

Counsel appearing for the petitioner submitted that standing committees have already been established in the State of Maharashtra, Tamil Nadu, Assam and Uttar Pradesh.

CJI enquired, under which Act? The Counsel informed that a resolution was passed giving effect to that, in their respective Assemblies. 

The present PIL has been moved before the Supreme Court, pointing out glaring defects in the 2019 Act passed to protect Transgender Rights and further seek a writ to constitute ‘Transgender Person Welfare Board’ to address community specific-issues.

It also seeks to appoint a Standing Committee comprising of Station House Officers, Human Rights and Social Activists, to promptly investigate reports of gross abuses by the police against Transgender persons.

“The State has not shown the intention to see that its intention to protect the rights of the Transgender community, not only legislated but seen to be done practically,” the plea states.

The Petitioner draws attention to the following few defects in the Bill passed by the Parliament for Transgender Rights:

1. Despite the Supreme Court pronouncement in NALSA v. Union of India, a Transgender person is to be certified as a ‘Trans’ by a District Magistrate. Unless the person undergoes sex reassignment surgery, the certificate will only recognize the person as Transgender and not the gender they identify themselves as. 
2. The Bill does not follow the Standing Committee’s recommendation on a Screening Committee on whose recommendation a Transgender person was to be issued a Certificate of Identity as a ‘transgender’. The District Screening Committee consisted of: 

• Chief Medical Officer
• District Social Welfare Officer
• Psychologist or Psychiatrist
• Representative of the transgender community
• Government officer.

The 2019 Bill removes this provision.

3. The meaning and implication of the term ‘self-perceived gender identity’ is unclear in the Bill.
4. If a transgender person is denied a Certificate of Identity, the Bill does not provide a mechanism for appeal or review of such decision of the District Magistrate.
5. It outlaws discrimination against Transgender persons but provides no penalties against such discrimination. 
6. It states that if the immediate family cannot care for a transgender person, they could be placed in a rehabilitation centre after an order from a competent court. This violates Article 21 of the constitution, which guarantees the right to life and dignity.
7. It clubs various forms of violence, from emotional to sexual abuse, under one head with a penalty of six months to two years, making it evident that the state believes sexual violence against Transgender persons is a crime of lesser gravity than against cisgender women. 
8. Despite the verdict’s call for reservations, the Bill makes no such provisions.

The petition also raises crucial questions regarding separate protocols concerning the health of transgender persons, including mental health issues.

It points out inadequate representation of the community in the National Council for Transgender Persons. On the introduction of a new section that criminalizes ‘compelling or enticing’ a transgender person to indulge in forced labour, the plea says;

“The need for the section should be under scrutiny, for when there is a pre-existing Bonded Labour System (Abolition) Act which criminalizes those employing bonded labour and is applied across persons with no discrimination on gender, the need for this provision is redundant. The only reason that can be foreseen for the presence of this section is to criminalize begging and sex work. The twisting of words doesn’t absolve the lawmakers of the repercussions it would translate in, during implementation.”

Case Title: Kinner Maa EkSamajik Sanstha Trust v. Union of India & Ors