Critical Analysis Of The Transgender Persons Bill, 2019

Critical Analysis Of The Transgender Persons Bill, 2019

Updated on 28 November, 2019

Target 2020 GS1 Social issues & Justice
a-critical-analysis-of-the-transgender-persons-bill

Recently Parliament passed Transgender Persons (Protection of Rights) Bill, 2019.

Background:

  • According to the 2011 Census there are more than 4.80 lakh transgenders in the country. These people are often discriminated upon and humiliated in public for being transgender.
  • Currently several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 and Hindu Succession Act, 1956 which contain some gender specific provisions.
  • However major impetus to transgender rights was given in 2014 in National Legal Services Authority of India (NALSA) V. Union of India Case under which Supreme Court for the very first time recognised them as 3rd gender 
  • Further in Navtej Singh Johar V. Union of India Case, Supreme Court Decriminalised some part of S-377 of Indian Penal Code that barred even consensual homosexual sex between adults, thereby strengthening transgender rights.
    • SC under this case introduced the concept of the Doctrine of progressive realisation of rights which mandates that the laws of a country should be in consonance with its modern ethos, it should be “sensible” and “easy to apply”.
    • The state has an obligation to take appropriate measures for the progressive realisation of economic, social and cultural rights
    • Doctrine of progressive realisation of rights  as a natural corollary, gives birth to the doctrine of non-retrogression. 
    • As per this doctrine,the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise
  • All of the above things compelled government to bring progressive bills for their protection and development.

Transgender Persons (Protection of Rights) Bill, 2016 

The Lok Sabha on December 17, 2018 passed the Transgender (Protection of Rights) Bill, which seeks to define transgender and prohibit discrimination against them.

Highlights of the Bill-

  • Prohibition against discrimination- It prohibits discrimination in relation to opportunities for education, job, health care services, and access to services, accommodation, transport etc. It directs the central and state govts to provide welfare schemes in these areas.
  • Procedure for transgender recognition- The certificate of identity has to be obtained from the District Magistrate, who will issue the certificate based on the recommendations of a District Screening Committee, comprising the Chief Medical Officer, District Social Welfare Officer, Psychologist or Psychiatrist, and a representative of transgender community.
  • Right of residence- No transgender person shall be separated from parents or immediate family on the ground of being a transgender.
  • Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.
  • The bill Criminalises Begging by Transgender persons so as to induce them to undertake other sustainable vocations.

Need for a revised bill/ Concerns of 2016 bill:

  • Against self-identified gender expression: Under this district screening committee’s assent was required for getting transgender certificate which undermined Right of Self Identification as per NALSA judgement. 
  • No reservation: The bill was silent on Affirmative actions regarding transgenders and no reservation in jobs or education was proposed.
  • Criminalisation of begging: It made transgender communities more vulnerable, as they are forced to do begging due to lack of employment opportunities and criminalising the same was a threat to their livelihood.
  • Limited protection against sexual abuse: The bill failed to accord equal protection to transgenders in consonance with women as many offences under the IPC such as rape, stalking, sexual harassment etc are applicable only if the victim is female. For example, definition of rape under Section 376 IPC deals with crime committed against a female but doesn't mention transgender. 

Further the bill made “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to 2 years

  • No civil rights recognised: The Bill didn’t catered to civil rights such as marriage, civil partnership, adoption and property rights. 
  • National Commission not enough: The bill proposed a transgender commission at the national level  which was not enough. The need is to establish a welfare board for transgender, and a helpline number for those in distress at regional and local levels.
  • Bar on separation from family: There was a bar on forcible separation of transgender persons from their families, except through court orders. However, it was within the family that many transgender persons faced harassment and abuse, and often felt driven to flee their homes. 

The Transgender Persons (Protection of Rights) Bill, 2019

The Transgender Persons (Protection of Rights) Bill, 2019 was passed by the Lok Sabha in August, 2019 and now Rajya Sabha has also passed it.

Key Provisions:

  • Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.  It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. 
  • Prohibition against discrimination: The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment.
  • 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, on the orders of a competent court.
  • 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 be a complaint officer to deal with complaints in relation to the Act.
  • Education: Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
  • Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.  
  • 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 recognize the following offences against transgender persons: 
  • Forced or bonded labour (excluding compulsory government service for public purposes)
  • Denial of use of public places
  • Removal from household, and village
  • 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: 

  • Union Minister for Social Justice (Chairperson); 
  • Minister of State for Social Justice (Vice- Chairperson); 
  • Secretary of the Ministry of Social Justice; 
  • 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 advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons. 

Lacunas addressed from Previous Bill:

  • Decriminalised Begging: Transgenders are forced to beg owing to lack of employment opportunities and criminalising the same was grave injustice for them due to this the new bill decriminalised begging by transgenders.
  • No District Screening Committee: In earlier bill screening committee was to give its assent to District Magistrate for issuing certificate of identity which undermined right of self determination, now certificate will be issued after self declaration by a person in front of district magistrate.

Remaining Bottlenecks:

  • Problem of Nomenclature: A more comprehensive term like LGBTQ (Lesbian,Gay,Bisexual,Transgender,Queer) would have been more appropriate rather than focusing on rights of transgenders only.  
  • Against the Spirit of Self Perceived Identity: The Bill states that a person will be recognised as ‘transgender’ on the basis of a Certificate of Identity issued by a District Magistrate. In such a case, it is unclear what the term ‘self-perceived’ gender identity entails and how it will be enforced.
  • No Review Mechanism: 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.
  • No role of Chief Medical Officer: The Standing Committee, emphasised on the importance of the role of the Chief Medical Officer to check any potential misuse of the certificate. However, the 2019 Bill removes the provisions for a District Screening Committee and leaves the power to issue the Certificate with the District Magistrate, based on procedure notified through rules.
  • Ambiguity on other rights: Currently several criminal and civil laws recognise two categories of gender i.e. man and woman. The Bill recognises a third gender i.e. ‘transgender’.  However, the Bill does not clarify how the existing laws will apply to transgender persons.  
  • Compartmentalization of Discrimination: Bill expressly prohibits discrimination against a transgender person, only on nine types of discriminatory acts. Discrimination is a multidimensional concept and to name just nine types is a travesty of justice.
  • No Reservation: In the NALSA judgement, the state and central govts were asked to extend backward class reservation to transgenders in education and public employment. But the bill fails to address that issue.
  • Lighter Sentences: There are lighter punishments for several criminal offences, such as “sexual abuse" and “physical abuse" if they are committed against transgender people in comparison to females. 
  • National Commission not enough: A transgender commission at the national level is not enough. There is need for a welfare board for transgender, and a helpline number for those in distress at regional and local levels.
  • Sex Selective Reassignmnet Surgeries: Some activists are criticising this provision as according to him it is defying the order of nature and encouraging forceful or non consensual sex reassignmnet surgeries.

Way Forward:

  • More State level initiatives are needed for augmenting their welfare like:
    • Tamil Nadu established a transgender welfare board in 2008.
    • Kerala brought the ‘State Policy for Transgenders in Kerala 2015’ to provide the “right to live with dignity.” It was the first state to have a transgender policy.
    • Odisha is the first state to give transgender people social welfare benefits.
    • Andhra Pradesh also announced pension scheme for transgender community.
  • Socio Economic support: Provide opportunities in social and economic activities by encouraging their incorporation in government initiatives and bringing reservation for them in education and employment.  Ernakulam District Panchayat helped 6 transgender people to open Kerala’s 1st Transgender run hotel named Ruchimudra.
  • Grassroot Support: Local governments need to play a positive and proactive role in removal of taboos and discrimination. Moreover, reservation in panchayats can also be done to empower them.
  • Child Protection laws: It needs to be strengthened to address issues faced by transgender adolescents. The abandonment of children is a punishable offence under Section 317 of IPC (Indian Penal Code) .The age limit of child for this offence need to be increased to 18 years as abandonment of transgender children usually takes place between 12 and 18 years.
  • Sensitization: The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law.

Conclusion:

The only hope for Transgender Persons is that the National Council which is supposed to provide the institutional framework for implementing the Act might allow more latitude for incorporating genuine demands. Otherwise, this Act might well be a glove that ill fits the hand it was tailored for. 

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