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

More in news:

  • The Transgender Persons (Protection of Rights) Bill, 2019 was passed by Parliament on November 26, 2019. 

Transgender Persons:

  • According to the World Health Organisation (WHO), ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match the gender assigned to them at birth. For example, a person born as a man may identify with the opposite gender, as a woman.
  • 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).  This ‘other’ category applied to persons who did not identify as either male or female, and included transgender persons.
  • In 2013, the government set up an Expert Committee to examine issues related to transgender persons. The Committee stated that transgender persons faced issues of social stigma and discrimination which affected their access to education, healthcare, employment and government documents.  
  • In 2014, the Supreme Court in NALSA vs UOI case recognised a transgender person’s right to self-identification as male, female or the third gender. Further, the Court directed central and state governments to grant legal recognition to transgender persons, address issues of social stigma and discrimination, and provide social welfare schemes for them.

Key features of the Transgender Persons (Protection of Rights) Bill, 2019:

  • 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.  Intersex variations is defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.
  • Certificate of identity for a transgender person
    • A person recognised as transgender person under the Bill shall have a right to self-perceived gender identity.
    • A transgender person has to obtain a Certificate of Identity which will confer rights and be proof of recognition of identity as a transgender person.
    • An application for obtaining such a Certificate should be made to the District Magistrate (DM), in the form and manner, as may be prescribed.
    • A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
    • The gender of a transgender person will be recorded in all official documents, on the basis of this Certificate.
    • An individual may apply for a revised certificate from the DM if he undergoes surgery to change their gender either as a male or a female.
  • 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 in whose care or custody a transgender person is.
  • 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.
  • Employment: 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.
  • Education: Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
  • Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.  The government shall review the medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
  • Offences and penalties: The Bill recognizes the following offences against transgender persons:
    • forced or bonded labour (excluding compulsory government service for public purposes),
    • denial of use of public places,
    • removal from household, and village,
    • physical, sexual, verbal, emotional or economic abuse. 

Penalties for these offences vary between six months and two years, and a fine.

  • National Council for Transgender persons (NCT): The NCT will consist of:
    • Union Minister for Social Justice (Chairperson)
    • Minister of State for Social Justice (Vice- Chairperson)
    • Secretary of the Ministry of Social Justice
    • one representative from ministries including Health, Home Affairs, and Human Resources Development. 
    • Other members include representatives of the NITI Aayog, and the National Human Rights Commission.  State governments will also be represented. 
    • The Council will also consist of five members from the transgender community and five experts from non-governmental organisations. 

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. 

Concerns related to the bill:

  • Self-determination of identity vs. verification of eligibility for entitlements:
    • The Supreme Court has held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under Article 21 of the Constitution.
    • Further, the Court upheld the right of transgender persons to determine their self-identified gender as a man, woman or as third gender.  This would protect their right to live with dignity and respect. 
    • However, the Bill states that a person will be recognised as ‘transgender’ on the basis of a Certificate of Identity issued by a District Magistrate. 
    • Such a Certificate will be proof of identity as ‘transgender’ and confer rights under the Bill. This is direct violation of the SC judgement in NALSA case.
  • No mechanism for appeal or review for Certificate of Identity: Despite including identities such as “gender queer” and “persons with intersex variations” in the definition of “transgender”, the Bill has failed to incorporate the rights of such persons, putting them in danger of being excluded by a system which certifies people based on medical examination. It is to be noted that if a transgender person is denied a Certificate of Identity, the Bill does not provide a mechanism for appeal or review of such decision of the District Magistrate.
  • Undefined sexual offences: While the Bill makes “sexual abuse” punishable, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes. It also fails to extend protection to transgender persons who might face sexual abuse as the Indian Penal Code recognises rape in strict terms of men and women as perpetrator and victim, respectively. 
  • The bill is also silent on whether a transperson who holds a male or female gender certificate will have access to government welfare schemes and programs meant for transgender people.
  • The bill fails to address and penalize surgeries on infants born with intersex variations with the intention of “correcting” their bodies to fit the binary gender. Since many parents subject their children to medical “conversion” therapies or “correction” procedures, including shock therapy, to make them “normal”.
  • the Bill states, “no child shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court.” This poses a potential threat to the safety and well being of the child as it could give the family the leeway to harass the child and exclude them from their property.
  • The bill is silent on the reservation in education and employment for transgender persons, going against the mandate in NALSA.
  • The Bill does not tackle the question of realisation of civil rights — such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.

Way forward:

  • The bill should be renamed as the Rights of Transgender and Intersex Persons Bill since the mention of intersex persons in the Indian bill is an important inclusion. It must 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.
  • The Ministry of Social Justice and Empowerment should also compile the existing experiences /interventions taken by many States like Tamil Nadu, Maharashtra, Sikkim, and Delhi etc.
  • 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 sensitization for police and health care providers.
  • The government should consider reservation for transgender in education and employment to mainstream one of the most vulnerable groups in the society.
Some initiatives:
In India, Tamil Nadu was the first state to introduced Transgender welfare policy. According to this policy, Transgender people can access free Sex Reassignment Surgery (SRS) in all Government Hospital, free housing program, various citizenship documents, admission in government colleges with a full scholarship for higher studies etc.
The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) is a major initiative of the 11th Five Year Plan period which brought employment opportunities for transgender people.

Source: https://indianexpress.com/article/opinion/columns/transgenders-rights-bill-parliament-winter-session-6145980/