The High Court of Karnataka has ordered issue of notice to the Union government in a PIL petition questioning constitutional validity of a series of provisions of the Transgender Persons (Protection of Rights) Act, 2019.
A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Ashok S. Kinagi passed the order on the petition filed by Ondede, a public charitable trust working extensively with the transgender community in the State and others.
The petitioners have termed the Sections 4,5,6,7, 12(3), 18(a) and 18(d) of the Act as violative of the fundamental rights of the equity before law, the prohibition of discrimination on grounds of religion, race, sex or place of birth, the equality of opportunity in matters of public employment, and the protection of life and personal liberty guaranteed respectively under the Articles, 14,15, 16 and 21 of the Constitution.
Pointing out that as per the Section 4, a transgender person shall have a right to be recognised only as ‘transgender’ and not as male, female, or other, the petition has claimed that this compulsion to only identify as ‘transgender’ violates one’s right to gender identify under the Article 21.
The Sections 5, 6 and 7, prescribing process for consideration of application for certificate of identity after considering medical and psychological documents are violation of the apex court’s judgement, in the case of National Legal Services Authority vs Union of India, which had held that gender self-determination cannot be based on medical reassignment or any other procedure, the petitioners have contended.
The petitioners have also claimed that Section 12 does not make any distinction in treatment between minors and adult transgender persons when they get rejected by their family as they can be assigned to a rehabilitation or to their homes by the orders of a court without giving any third alternative of their own choice if the transgender is not a minor person.
Abuse of transgenders
Section 18 of the Act, which prescribes maximum punishment up to two years in cases of certain offences like physical or sexual abuse of a transgender person, is discriminatory in nature, petitioners have claimed while pointing out that the Indian Penal Code prescribes severe punishment of seven years and above in cases of similar offences against women.