Transgender Rights Bill 2019

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Context: The Rajya Sabha passed a bill on protection of rights of transgenders after a motion to refer it to a Select Committee of the Upper House was defeated. The Lok Sabha had passed the Bill on August 5 this year.

Relevance:
Prelims: Current events of national and international importance
Mains: GS I –

  • Salient features of Indian Society, Diversity of India. Role of women and women's organization, population and associated issues, poverty and developmental issues, urbanization, their problems, and their remedies. Effects of globalization on Indian society Social empowerment, communalism, regionalism & secularism.

Background:

  • Transgender community includes Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv, Shaktis, etc., who have been a part of Indian society for centuries. The Vedic and Puranic literature mentions “Tritiya Prakriti” meaning the third gender.
  • Though most of the eunuchs seen today are begging at traffic signals or during weddings, they were a respected lot during the Mughal rule in Medieval India.
  • During the British rule, they were denied civil rights and were considered a separate caste or tribe who did kidnapping and castration of children and danced and dressed like women.
  • In Post-Independence Era, the Act was repealed but its legacy continues and many local laws reflected the prejudicial attitudes against certain tribes, including Hijras.
  • In contemporary times, the LGBTQ group is referred to as the “lesbian, gay, bisexual, transgender, and queer community” which includes those with gender dysphoria and different sexual orientations.
  • It also needs to be understood that “Sex” and “Gender” are different things. One may be born as Male (sex) but may identify himself like a Woman (Gender). So “Sex” is biological and “Gender” is the real sexual identity of a person.

Transgender in India:
Count:

  • Indian census has never recognized the third gender, i.e., transgender while collecting census data for years.
  • According to the 2011 Census, the number of persons who do not identify as ‘male’ or ‘female’ but as ‘other’ stands at 4,87,803 (0.04% of the total population)
  • The 2011 census also reported 55,000 children as transgender-identified by their parents.

Issues of Transgenders:

Sexual health issues

  • Transgender communities face several sexual health issues including HIV.
  • Both personal- and contextual- level factors influence sexual health conditions and access to and use of sexual health services.

Mental health issues

  • Some of the mental health issues reported in different community forums include depression and suicidal tendencies, possibly secondary to societal stigma, lack of social support and violence-related stress.
  • Most transgender people, especially youth, face great challenges in coming to terms with one's own gender identity which are opposite to that of the gender identity imposed on them on the basis of their biological sex.
  • They face several other related issues such as shame, fear, and internalized transphobia; adjusting, adapting, or not adapting to social pressure to conform; fear of loss of relationships; and self-imposed limitations on expression or aspirations.

Violence

  • Multiple studies have shown that transgender people across the age spectrum face alarmingly high rates of physical and verbal violence, including child abuse, sexual violence, intimate partner violence, workplace violence, and hate crimes.

Social Exclusion

  • Family –
    • Most families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling from behaving or dressing-up like a girl or woman.
  • Heath care Setting –
    • Often, healthcare providers rarely had the opportunity to understand the sexual diversities and they do not have adequate knowledge about the health issues of sexual minorities.
  • Lack of livelihood options –
    • Most employers deny employment for even qualified and skilled transgender people. Lack of livelihood options is a key reason for a significant proportion of transgender people to choose or continue to be in sex work.
  • Residence –
    • The community is grossly discriminated by Indian Society when it comes to renting or selling the house to a transgender.
  • Insurance –
    • Health insurance companies often systematically exclude transition-related care and in many cases, these exclusions are used to deny coverage for a wide range of care for transgender people that may or may not have any connection to gender transition.

The Transgender Persons (Protection of Rights) Bill, 2019:

Highlights:

  • 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 in relation to:
    • (i) education;
    • (ii) employment;
    • (iii) healthcare;
    • (iv) access to, or enjoyment of goods, facilities, opportunities available to the public;
    • (v) right to movement;
    • (vi) right to reside, rent, or otherwise occupy property;
    • (vii) opportunity to hold public or private office; and
    • (viii) access to a government or private establishment.
  • 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 center, on the orders of a competent court.
  • Health care:
    • The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
  • 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. 
  • The Bill states that a person will be recognized as transgender on the basis of a certificate of identity issued through the district screening committee. This certificate will be a proof of identity as transgender and confer rights under this Bill.
  • Going by the bill, 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.
  • The committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.

Drawbacks:

  • The biggest opposition is the requisite for a screening committee to certify a person’s trans status. If they want to get a trans ID, they will have to approach a District Magistrate.
  • There is a Bill’s punishment clause, that enforces a maximum of two years imprisonment in a case of assault or gender-based violence. Any punishment of less than three years is bailable at the police station.
  • The Bill criminalises begging without offering reservations for employment and education.
  • The enforcement of a minor’s right of residence that compels any transperson below 18 to cohabit with their natal family, failing which the child will be moved to a rehabilitation home, a place to modify delinquent behaviour.
  • The Transgender Bill does not mention any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.

Conclusion:

  • The mention of intersex persons in the Indian bill is an important inclusion but it should include explicit protections for intersex people in line with India’s international human rights obligations.
  • The bill should be revised to emphasize training teachers to help them adopt inclusive teaching methods to ensure that children are not harassed or discriminated against by staff or other children.



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