Transgender Persons Act: Gender Justice Or Discrimination
The Transgender Persons (Protection of Rights) Bill, 2019 has been passed by the Parliament and got Presidential assent on 5 December, 2019. It seeks to ensure the fundamental rights of those who do not conform to the binary notions of gender identity along with their welfare and other related matters.
- In 2014, the Supreme Court in a landmark judgment in the case of National Legal Services Authority versus the Union of India recognised the rights of transgender persons and their right to decide on their gender identity.
- It directed the Centre and State to grant legal recognition for the third gender, ensure there is no discrimination against them, and construct specific social welfare programmes
- In August 2016, the government introduced the Transgender Bill in the Lok Sabha and this was referred to the Standing Committee on Social Justice and Empowerment, which submitted its report in less than a year. But that Bill lapsed with the dissolution of the 16th Lok Sabha.
- The current Act arose out of a Bill that the government introduced in the Lok Sabha in July 2019, and subsequently passed by both houses of parliament.
- The Act defines a transgender as a person whose gender assigned at birth does not match with his/her perceived gender.
- This includes trans-men, trans-women, “(whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”.
- A transgender person will have to make an application to the District Magistrate, who will issue a certificate of identity to the transgender person. Essentially, this certificate will be proof that the person is a transgender, reflecting their gender as “transgender”.
The Transgender Persons Act has following provisions: -
- Prohibition against Discrimination: Non-discrimination against a Transgender Person in educational institutions, employment, healthcare services etc.
- Recognition of Identity: Recognition of identity of Transgender Persons and to confer upon them right to self-perceived gender identity.
- Residence Right: It has provision of right of Residence with parents and immediate family members for transgender people.
- Welfare of Transgender People: Provision for formulation of welfare schemes and programmes for education, social security and health of Transgender Persons.
- National Council for Transgender Persons: The Transgender Persons Act has the provision for the creation of National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights. This body will consist of the Union Minister for Social Justice (Chairperson), a Minister of State for Social Justice (Vice- Chairperson), a Secretary of the Ministry of Social Justice, and one representative each from ministries including Health, Home Affairs, and Human Resources Development. Representatives of the NITI Aayog and the National Human Rights Commission will also be included, along with five members from the transgender community and five experts from non-governmental organisations. This body will advise, monitor and review the policies and schemes formulated by the central government for transgender people.
- Penalties: The penalties for causing harm of any kind, including physical or sexual abuse, to a transgender person, could attract punishment from six months and extend up to two years.
Impact of the Transgender Persons Act
- Two major positive inclusions are: removal of criminalisation of begging and removal of medical screening committees.
- The Transgender Persons Act will make all the stakeholders responsive and accountable for upholding the principles underlying the statute.
- It will bring greater accountability on the part of the Central Government and State Governments/Union Territories Administrations for issues concerning Transgender persons.
- The Transgender Persons Act 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.
- The Transgender Persons Act does not recognise the right to identify one’s gender. It only allows for the certificate to identify a person as “transgender” till they undergo a sex reassignment surgery and apply for another certificate. It goes against the landmark NALSA v. Union of India judgment, the Supreme Courtlaid down that transgender and intersex persons have the constitutional right to self-identify their gender as male, female or transgender even without medical intervention. The court held that “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”
- The statute is silent on reservations in education and employment for the community.
- The Transgender Persons Act only added penalties for “sexual abuse” and did not provide for extensive penalties for crimes such as rape committed against transgender persons.
- Activists pointed out that it is inappropriate to include the intersex community in the definition of transgender, which the statute does, as not all intersex people identify themselves as trans-people. This goes against the decision of the Supreme Court, which recognised the right to self-identify oneself as male, female or transgender and would also be forcing intersex persons to get a gender identity as “transgender”.
- The requirement of the court order to decide where a trans child will live — either with biological family or the community family — as another blatant human right violation.
- The penalty for rape is just six months to two years when it is life imprisonment for raping a woman. Even endangering their life is punishable by a maximum of two years in prison. The community has raised the concern that the crimes against them are considered and penalised as “petty” crimes.
- To make valid or relevant changes to its original composition with the active support and consensus of all stakeholders to ameliorate the criticisms mentioned above.
- To ensure faithful implementation of the statute that will address the pressing needs of the community.
- To increase the representation of transgender community in National Council for Transgender Persons.
- All noble provisions of the statute will be rendered ineffective in the absence of true economic empowerment of transgender community. It is the economic upliftment of community that will raise their social status in the society. In this light it is important to ensure reservations in education and employment for the transgender community.