Context: Recently, the Lok Sabha passed Transgender Persons (Protection of Rights) Bill, 2019
Relevance: GS-2 Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections
- 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 (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
- A person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy. It also requires transgender persons to go through a district magistrate and district screening committee to get certified as a trans-person.
- Prohibition against discrimination: It prohibits discrimination against a transgender person in areas such as education, employment, and healthcare.
- 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.
- 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.
- Welfare Measures: The Bill states that the relevant government will take measures to ensure their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
- Healthcare: The Government shall take the following measures in relation to the transgender persons, namely:
- a separate HIV surveillance Centres;
- to provide for medical care facility including sex reassignment surgery and hormonal therapy; pre and post-sex reassignment surgery and hormonal therapy counselling;
- to facilitate access to the transgender persons in the hospitals and other healthcare institutions and centres;
- provide comprehensive medical insurance schemes for transgendered persons.
- The Bill also has provisions for penalty and punishment which vary between six months and two years in cases of offences and sexual harassment against transgender persons. The offences include:
- forced or bonded labor (excluding compulsory government service for public purposes),
- denial of use of public places,
- removal from the household, and village,
- physical, sexual, verbal, emotional or economic abuse.
- National Council for Transgenders(NCT): It directs the Central government to constitute an NCT headed by the Union Minister of Social Justice and Empowerment.
- 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.
- A contentious provision that criminalized begging by transgender people has been removed from the Bill. The provision was part of the Bill when it was introduced by the previous government.
Issues with the bill
- The Bill has not provided any self-identification rights, promised by the NALSA judgment of 2014. There is a provision regarding obtaining a certificate of identity from District Magistrate.
- It is also contrary to international standards for legal gender recognition which call for separation of legal and medical processes of gender reassignment for transgender people.
- The bill empowers the district magistrate to judge the “correctness” of the application and decide whether to issue the change in gender certificate but does not give guidelines on how this decision should be made.
- Bill also mentions no provisions for an appeal or review of the decision taken by the District Magistrate.
- Bill does not provide for any reservations in the field of employment and education as directed by the Supreme Court in the NALSA verdict.
- The bill is silent on whether a trans person who holds a male or female gender certificate will have access to government welfare schemes and programs meant for transgender people.
- Certain criminal and personal laws that are currently in force only recognize the genders of ‘man’ and ‘woman’. It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.
- It does not include the creation of institutions like the national and state commissions for transgenders, as well as transgender rights courts which were part of the earlier draft bill.
- It is important to sensitize parents of transgender children and other members of the society with regards to the human rights of the transgender community.
- While various state governments formulated schemes for transgender communities, a National policy is an urgent need to ensure greater involvement of transgender persons in policy formulation and program development.
- Tamil Nadu is taking steps for the development of transgenders by providing them education, identity cards, and subsidized food and free housing.
- Kerala government brought the ‘State Policy for Transgenders in Kerala 2015’ to provide the “right to live with dignity.”
- Legal and law enforcement systems need to be empowered and sensitized on the issues of the Transgender community. Special Grievance Redressal Cells for their protection should be set up in all police stations.
- Government should amend the Criminal Procedure Code and the Indian Evidence Act, 1872 in order to make sexual crimes gender-neutral by including men and transgender people in addition to women