|Demand of the question|
Introduction. Contextual introduction.
Body. Discuss both negative and positive provisions of Transgender (Protection of Rights) Act, 2019.
Conclusion. Way forward.
The Transgender Persons (Protection of Rights) Act, 2019 is an act that seeks to provide for protection of rights of transgender persons, their welfare, and other related matters. As per the Census of 2011, the total population of Transgender in India is 4.9 lakh. They face the highest social neglect and abuse in the society. Often their rights are violated and are seen as criminals and abnormality In the society.
Key provisions of the Transgender Persons (Protection of Rights) Act, 2019:
- Definition of a transgender person: The act defines a transgender person as one whose gender does not match the gender assigned at birth.
- 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 act 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 etc.
- Health care: The act also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres.
- 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 act 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 act has provision for National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights.
Various issues in the act:
- Self-identification: The act fails to legally recognise a self-defined gender identity. Right to self-identification is a part of the right to life under Article 21 of the Constitution as recognised by the Supreme Court in National Legal Services Authority v. Union of India.
- Less comprehensive: The act recognises only certain categories of crimes committed against transgender persons. Additionally, the act does not specifically recognise, and provide appropriate penalties for violence that transgender persons face in educational and health care institutions, police stations, jails, shelters etc.
- Violative of right to privacy: A District Screening Committee would issue a certificate of identity to recognise transgender persons. This is a violation of Fundamental Rights to Privacy as recognised by Supreme Court in Justice K. S. Puttaswamy v. Union of India.
- Sexual assault: The act makes sexual abuse against a transgender person a punishable offence. However it fails to clearly define what constitutes sexual abuse.
- Lack of clarity: The act, while mentioning government aid in education and healthcare, does not specify the manner they will aid the transgender community. There is no clarity regarding this aspect.
- Social rights: The act also has no mention of things like marriage rights, adoption rights, property rights, social security or pension. This deprives the transgender community of some of the most fundamental rights.
- Under-representation: Act doesn’t include different identities like, transmales, intersex etc. Thus, transgender act do not completely represent the whole trans-gender community.
- No reservation: There is no provision of reservation in education and employment for the transgender community under the act.
The transgenders act, 2019 although seek to provide justice to the community has some lacunae. It ensure various fundamental rights to transgender community under Article 14, 15, 19, 21 and article 23 of the constitution but do not recognise the right of self identification. In 2014, the Supreme Court of India in National Legal Services Authority v. Union of India, upheld the right of a transgender person to self-perceived gender identity, guaranteed by the Constitution of India. The act undermines this provision and must be reviewed.