The Criticism of the 2019 Act

In one line

The 2019 legislation is criticised on five grounds: the certification procedure contradicts self-identification; surgery is required for recognition as male or female; the punishment is lower than for the same act against anyone else; there is no reservation; and the machinery is the weakest on this paper; and each criticism has an answer that must also be given.

Criticism one: certification against self-identification

The criticism. Section 4(2) confers a right to self-perceived gender identity. Sections 5 and 6 make its exercise depend on an application to a District Magistrate, prescribed documents, a prescribed procedure and a certificate that confers rights and is proof of recognition. A self-perceived identity that requires certification by an executive officer is not self-perceived. Nothing in the Act states a ground of refusal, fixes a period on the face of the statute, or provides an appeal.

The answer. Some documentary process is unavoidable if the certificate is to change entries in official records, and section 6(1) says shall issue, so the Magistrate has no discretion once the procedure is complete. The identity exists before and independently of the certificate; section 6(3) makes the certificate proof of recognition, not the source of the status.

The answer is partly good and does not meet the whole objection. A mandatory issue with no stated ground of refusal is meaningless without a time limit and an appeal, and the Act supplies neither. The specific reform is to insert a statutory period and a right of appeal into section 6.

Criticism two: surgery for recognition as male or female

The criticism. Section 2(k) defines a transgender person whether or not they have undergone surgery or therapy, so medical intervention is irrelevant to the identity. Section 7 then makes surgery, evidenced by a Medical Superintendent's or Chief Medical Officer's certificate, the only route to being recorded as male or female. The Act says medical intervention is irrelevant in section 2 and makes it decisive in section 7.

The answer. Section 7 is directed at the correction of records after a change has occurred, and it does not prevent a person from being recognised as transgender without any surgery, which section 6 already provides. Section 7(3) preserves the person's rights and entitlements under the Act after the change.

The answer does not work. A person who is a woman and whose documents say transgender is not in the same position as a person whose documents say female, and the difference matters for every gendered entitlement in the statute book. Making that difference depend on a surgical procedure a person may not want, may not need and may not be able to afford is a condition on identity, not a rule about records. The specific reform is to permit a revised certificate on the person's own declaration.