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Protection of Rights of Transgender People

A transgender person is the one who is partly female or male; or a combination of female and male; or neither male or female. Being a transgender is independent of sexual orientation. There are certain scientific names given to transgender person i.e. heterosexual, homosexual, bisexual and asexual. The opposite of transgender is a gender, which describes persons whose gender identity or expression matches their assigned sex.

Recently a bill has been passed by parliament named the transgender person (protection of rights) on November 26, 2019. The Bill was duly introduced in Lok Sabha on July 19, 2019, which was passed by Lok Sabha on August 5, 2019 and was then introduced in Rajya Sabha which was passed by the other house also on November 26, 2019 by minister of social justice and empowerment, Mr. Thaawarchand Gehlot. The bill was cleared despite the opposition’s efforts to send the bill to the selected committee. It was pointed out that while the proposed legislation has no definition of discrimination, the definition of transgender is ambiguous.

The proposed Bill has following provisions: -

  1.  Non discrimination against a Transgender Person in educational institutions, employment, healthcare services etc.

  2.  Recognition of identity of Transgender Persons and to confer upon them right to self perceived gender identity.

  3. Provision of right of Residence with parents and immediate family members.

  4. Provision for formulation of welfare schemes and programmes for education, social security and health of Transgender Persons.

  5. Provision for National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights.

The Bill will make all the stakeholders responsive and accountable for upholding the principles underlying the Bill. It will bring greater accountability on the part of the Central Government and State Governments/Union Territories Administrations for issues concerning Transgender persons. The Bill will benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of society. It will lead to greater inclusiveness and will make the transgender persons productive members of the society. However, Human rights organizations have alleged that the Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations. “Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in National Legal Services Authority (NALSA) v Union of India (UOI), which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI," said Frederick Rawski, Asia Pacific Director, International Commission of Jurists (ICJ), a nongovernmental organization (NGO) defending human rights.

In year 2013 an expert committee has been set up by the government to study and look into the problems faced by transgender and recommend solution to those problems. The committee of experts was from various fields and do have various knowledge about their work. In year 2014, a bill was introduced by a private member named the rights of transgender persons, was introduced in the Rajya sabha by , a member of parliament from Tamil Naidu which include certain provision that are for their welfare like health, education sectors, skill development and employment opportunities and protection from various torture.

In 2016, the Government introduced its own bill in Lok Sabha and was referred to a standing committee, which made certain recommendations including defining the term persons with intersex variations, providing reservations in various social and educational classes and many more rights to transgender person. However, due to the dissolution of lok sabha at that time dissolved the bill.

  • Right of residence: Every transgender person shall have a right to reside and be included in his household.  If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre.

  • Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.  Every establishment is required to designate a person to a complainant officer to deal with complaints..

  • Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.  The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes.

  • Certificate of identity for a transgender person: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female. 

  • Welfare measures by the government: The Bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.  It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities. 

  • Offences and penalties: The Bill recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse.  Penalties for these offences vary between six months and two years, and a fine.

  • National Council for Transgender persons (NCT): The NCT will consist of: (i) Union Minister for Social Justice (Chairperson); (ii) Minister of State for Social Justice (Vice- Chairperson); (iii) Secretary of the Ministry of Social Justice; (iv) one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog, and the National Human Rights Commission.  State governments will also be represented.  The Council will also consist of five members from the transgender community and five experts from non-governmental organisations.

The provision of the District Screening Committee had also left gaps for incompetence and prejudice and was supposedly done to filter out imposters from seeking benefits of government welfare schemes. Protestors alleged the 2018 bill to be institutionalising violence and claimed neglect of recommendations made by the Standing Committee and transgender persons. After the 2018 bill was passed by the Lok Sabha in December 2018, members in the Opposition from the Rajya Sabha stated they will not let the bill pass in its present form in Rajya Sabha. Transgender persons called for applications to the District Magistrate for issuance of transgender certificates, lesser punishment for crimes against transgender persons, and absence of provisions on mandatory reservations for transgender persons regressive to the judicial mandate of the Supreme Court in 2014 in NALSA v. UOI.

The Bill has left more questions unanswered than the concerns it aims to addresses. It appears to be a check in the box, which, in its present form, may not be of much help to the TG Community. The timing of the passage of the Bill in the Lok Sabha has also been questioned. The Bill was passed, almost without debate, on the same date when the proposal to abrogate Jammu and Kashmir of its special status was introduced in the Rajya Sabha. In some circles, this date is being referred to as the ‘Gender Justice Murder Day’ by the TG Community. It has also been alleged that the Bill was not made available to relevant communities until the date it was tabled in the Lok Sabha. In light of these concerns and certain critical shortcomings identified above, the Bill in its present form requires reconsideration.

Written By: Mr. Mukul Bansal, Final Year Student, LLB, Punjab University, Law Intern at S.Bhambri & Associates (Advocates), Delhi.

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