|Demand of the question
Introduction. Contextual Introduction.
Body. Mention key provisions in the bill. Various issues in the bill that would undermine the rights of transgenders.
Conclusion. Way forward.
As per the Census of 2011, the total population of Transgender in India is 4.9 lakh. They face highest social neglect and abuse in the society. Often their rights are violated. They are seen as criminals and abnormality of society. Thus government introduced ‘Transgender Persons (Protection of Rights) Bill 2019’ to ensure socio-economic justice to them.
- 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 transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
- Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
- Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
- Education, employment, healthcare.
- Access to or enjoyment of goods, facilities, opportunities available to the public.
- Right to movement, right to reside, rent, or otherwise occupy property.
- Opportunity to hold public or private office.
- Access to a government or private establishment in whose care or custody a transgender person is.
- Health care: The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
- Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.
- 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.
- National Council for Transgender persons (NCT): The bill seek to establishNCT for the cause of transgenders.
How various issues in bill undermines the rights of the individuals:
- This Bill does not go far enough to protect transgender persons who are subjected to abuse relentlessly, and with relative impunity.
- The Bill fails to legally recognise a self-defined gender identity which is recognised by the Supreme Court in National Legal Services Authority versus Union of India. Bill lays out a vague bureaucratic procedure to be followed for legal gender recognition, which violates the right of trans persons to have their self-identified gender recognised.
- The Bill recognises certain categories of crimes committed against transgender persons, all of which are punishable with imprisonment of up to two years. The Bill does not fully recognise the range of violence they face, and does not provide for sentences commensurate with their gravity.
- Additionally, the Bill does not specifically recognise, and provide appropriate penalties for, violence that transgender persons face from officials in educational and health care institutions, police stations, jails, shelters and remand homes, or other places of custody.
- It fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
- A District Screening Committee would issue a certificate of identity to recognise transgender persons. This is also a violation of Fundamental Right to Privacy.
- The bill is also 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.
- The 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.
- The mention of intersex persons in the Indian bill is an important inclusion but the bill should be renamed the Rights of Transgender and Intersex Persons Bill and include explicit protections for intersex people in line with India’s international human rights obligations.
- The bill should be revised to emphasise training teachers to help them adopt inclusive teaching methods to ensure that children are not harassed or discriminated against by staff or other children.
- The government should implement stigma and discrimination reduction measures through a variety of ways like mass media awareness for the general public to focused training and sensitisation for police and health care providers.
- India should take lessons from Thailand. It is one of those model countries wherein all the required facilities are being made available to the Transgender Community.
- There should be a population of the community. The community should be involved in this exercise. For the time being, United Nations Development Programme(UNDP has more authentic data on Transgender in India. It could be be used for planning welfare schemes.
The Supreme Court in National Legal Services Authority andNavtej Singh Johar case clearly upheld the equal rights for transgender as envisioned in Indian constitution. Transgender bill although has many salient provisions but some issues still remains, that must be removed.