This article is written by Shreya Tandon, a law student from Vivekananda Institute of Professional Studies (VIPS), IP University. In this article, the author talks about the attempts made by the Parliament of India to bring the fare and just legislation in the whole nation for the benefit of the Transgender community.

Introduction

“From fighting to introduce the simple option of ‘others’ in the gender column to the first step in removing the fear of stigmatization by letting in the transgender officers in armed forces, the struggle has been the hardest one for the transgender community.”

On 18th April 2020, during the lockdown, the Ministry of Social Justice and Empowerment delivered the Draft Transgender Persons(Protection of Rights) Rules, 2020 under the Transgender Persons(Protection of Rights)Act, 2019 for public suggestions and recommendations. As these rules were announced by Prime Minister Narendra Modi during the time of COVID, it became impossible for the people and the intersex community to raise their concerns regarding the bill. After mounting the constant public pressure the date has now been extended till 18th May 2020.

The submission revolves around the involvement of input of opinions of the transgender community by giving recommendations to the State Government to enhance the bill. The bill focuses on elaborating on the clauses one by one.

Objective

The deleterious coronavirus pandemic has affected the world economy adversely. In India, not only the lower-salaried category of people have been suffering but it has been distressful for the transgender group as well. This section turns out to be the most vulnerable, helpless, and worse effect in the graph.

The purpose behind redrafting the rules for the transgender community is to-

• Simplifying and easing the process of granting the certificate of identity by the District Magistrate.
• It also aims at providing recognition by giving the right to self- perceived sex identity.
• Specifying the welfare provisions as to bring about a socio-economic change in Indian society.
• Providing opportunities with an effort of making the provisions compatible for the intersex sector.
• Aims at eradicating the discrimination they face in the employment, healthcare, and the education sector.
• Ensure access to or enjoyment of goods, and public places.
• Right to movement.

Background

• In the year 2014, the Supreme Court of India in the case of National Legal Services Authority Vs. Union of India (NALSA Vs. UOI) held that-

1. The presence of the transgender community has been seen throughout India at the time of history but with the change in society’s thinking, are considered as ‘Disgraceful’.
2. It recognized the rights of a transgender person in India and laid down a series of measures to protect them against discrimination, recommending the creation of welfare policies and reservations for the transgender community under educational institutions and jobs.
3. The judgment upheld the right of a transgender person to self-perceived gender identity as male, female or third gender which is guaranteed by the Constitution of India.
4. The court also directed the Centre and state to grant legal recognition to address the trans community and attend their social stigmas.

• After the pronouncement of the judgment, Tiruchi Siva, the member of Dravida Munnetra Kazhagam(DMK) party introduced a private member’s bill in the Rajya Sabha which was recognized as The Rights of Transgender Persons,2014. The Bill was passed by Rajya Sabha in April 2015 but it didn’t gain the majority in Lok Sabha.
• In 2016, The centre sent the Bill in the Lok Sabha which was called, Transgender Persons (Protection of Rights) Bill, 2016. It was stated that medical professionals would be given the responsibility for clarifying a person’s identity on the basis of medical, psychological characteristics.
• The Bill was met with criticism and protests from Indian transgender persons and was referred to the Standing committee, which submitted its report in July 2018.
• The Lok Sabha passed a newer version of the bill with 27 amendments on 17th December 2018.
• The bill was once again met with severe criticism as it overlooked the recommendations made by the Standing Committee and suggestions offered by transgender persons that is, the bill had criminalized begging for transgender which was one of the main sources of eating bread and it had no mention of reserving rights for the transgender community in educational and health parameters.
• However, the bill stood lapsed.
• The bill was reintroduced in Lok Sabha and in 2019 and the bill was passed on 5th August in the monsoon Parliament.
• The Rajya Sabha on 26th November 2016 passed the Transgender Person (Protection of Rights) Bill,2019 by a voice vote without making any of the amendments. The bill was moved in both the houses by the minister for social justice Thaawarchand Gehlot.

Comparison between the Parent Act and the Draft Transgender Persons Rules, 2020

Unfortunately, the 2020 Draft has again failed to meet the expectations of the Transgender sector. It came out as a serious criticism from the community as they were provided only 13 days to present their comments. This step portrays that Modi Government deprived the true meaning of act by hardly solving each and every need of the community nor it paid any attention to the suggestions made under the main act- Transgender Persons(Protection of Rights)Act, 2019.

Further, the language of the bill lacks empathy and has been categorized as ‘irrational’ and ‘insensitive’. It lacks the principle of self- determination. The opinion of one of the trans people is quoted as, “It is actually our worst nightmare come true because the bill only talks about regulation and re-regulation of the bodies of trans people and nothing about their rights. Transgenders are seen as passive recipients of a benevolent state.” 

While exercising the powers conferred under Section 22, sub-section (1), and (2) of the Transgender Persons(Protection of Rights)Act, 2019 the Central Government makes the following rules. The comparison between the act and the bill is stated below-

Basis of the Provision	Enactments and Powers Under the Act	Description of the 2020 Draft
Application for a certificate of identity	The procedure to file an application to the District Magistrate. States the additional documents which may be required.	‘Applicant’ is the transgender person who submits the application. Under the head ‘Application’ the following things are included- report from a psychologist of the government hospital, application forms, affidavits.
Issuance of identity certificate as to give recognition under the	Chapter III of the act is descriptive about the following- manner and form in which the certificate will be issued, the time period for consideration taken by the District Magistrate to issue the same.	Clarifications provided are- The identity card and the certificate shall be issued within 60 days by the District Magistrate. It is mandatory for the applicants to be a resident for a minimum of 1 year under the jurisdiction of the DM. Within 15 days before the application comes into the effect, if required the transgender person must change the name and gender in all the official documents
Application for an identity certificate	It talks about the transgender person who undergoes sex reassignment surgery and the procedure which they are obliged to follow for a revised certificate of identity.	The application for a certificate comprises- The application form, certificate, approval by the Chief Medical Officer,or the Medical Superintendent of the concerned Government Hospital.
The process of issuing a revised identity certificate	Mentions the process, way, time period which the District Magistrate must take to issue the revised certificate.	Revised identity card along with the revised certificate must be issued within 15 days, categorizing the person as Male/Female.
Measures were taken for betterment and welfare	Chapter IV of the act talks about the welfare measures taken by the government in the interest of the community.	Expectations which are required to be fulfilled by the appropriate government are- Reviewing of the present schemes and measures stated under the act. Ensure that the programs and schemes are not discriminatory. Take adequate steps to prohibit discrimination against such communities. Ensure that the Fundamental Right of education is not deprived of them.
Amenities	The government should ensure that the basic facilities and resources must be provided to a person.	The Appropriate Government in the span of 2 years must ensure the building of- rehabilitation centres, HIV surveillance centres, separate hospital wards, separate washrooms in establishments for transgender persons
The making of National Counsel for Transgender Person	States the function of The National Councel for Transgender Person.	It falls under The Ministry of Social Justice and Empowerment which is assigned the role of secretariat. Grant-in-aid function is provided to National Counsel for Transgender Person by the Central Government.
Any other matter that may be prescribed	Any other matter that may be prescribed.	Appropriate Government is assigned the work to make proper appellant authorities. If the certificate of identity gets rejected, it is the duty of the applicant to appeal the same within 30 days to the appellant authority. The applicant will face penalties if it is done falsely as to obtain the tag of the transgender.

Criticism 

The bill is opposed on the following grounds-

Failure of consultation process 

• The which was supposed to protect the rights of the transgender peoplw was drafted before approaching anyone from the community. No one from the community was asked about their needs and requirements. As a result assumptions were based on stereotypes.
• Several media reports show that the COVID crisis has brought up monumental challenges during the lockdown.
• It is ‘The Murder of Gender Justice’.

Discrimination at its peak

• The bill sets out lighter sentences for several criminal offences, such as ‘sexual abuse’ and ‘criminal abuse’ when they are committed against transgender people. The prescribed punishment is set to be minimum 6months and maximum 2 years whereas if the victim of the similar offence is any woman of Indian society the punishment is much more grave i.e. minimum 7 years and maximum life imprisonment under the Indian Penal Code, 1860.

Opening doors for humiliation and harassment

• The bill requires a transgender person to obtain a certificate of identification by a district magistrate. It is clearly against. The provision is clearly against NALSA guidelines of the apex court for self determination of gender. 
• According to the guidelines the transgender person is required to obtain the report from the psychologist as well as from the hospital if they have undergone sex reassignment surgery.
• The report from the psychologist is still unclear nor does it include any qualification criteria for the psychologist. 
• How can the other person decide someone’s identity ? And why is the certificate considered as an acknowledgment for a person’s identity? This is surely a regressive legislation which observes serious conceptual flaws.
• A notice has been issued to the union government to safeguard its constitution.

Issuance of certificate only to those transgenders who reside in the District Magistrate’s jurisdiction minimum for a period of 12 months

• It creates an additional burden on their shoulders.
• Already they face discrimination in the society due to which they are even denied the access to shelter and to buy property on their name.
• If we look at other certificates and licenses, there is no minimum time period requirement. For example, while applying for a driving licence, the Road Transportation Organisation does not consider that a person is resident in a particular area.

Denial to join transgender community if secluded from family

• If the families disowns their child who is a transgender, the person may be placed in re habilitation centre with orders from the court.
• Thus takes away their rights to join people of their community with whom they feel safe, comfortable and secure.

Lack of reservation

• There is still no mention of providing reservations to these communities in the education and employment sectors. 
• The 2011 data revealed that the literacy rate among the community is only 46% and the employment rate is worse than the prior i.e. 38%
• Apart from such harsh socio-economic conditions, they are fighting for their identity and privacy as well.

Deprivation of fundamental rights on the ground of disadvantaged groups of society

• The bill fails to recognize marriages among the community, issues regarding adoption, property rights, social security or Pensions.

Ironic moment for the community

The COVID pandemic and the release of the draft rules overlap with anniversaries of two major milestones in the history of the rights movement in India. The transgender community celebrated six years of the landmark judgment of the apex Court on 16th April 2020. The judgment recognised the right to self-determine gender identity and directed the government to come up with a comprehensive law for protection of rights and welfare of transgender people. On 22 April 2020, the intersex community celebrated the first National Intersex Human Rights Day. On the same day last year, the Madras High Court on ‘imposing a ban on intersex surgeries on the new born’ delivered a landmark judgment for intersex children in India, recognising their consent rights and the right to bodily integrity. In a society where we are made to think about biological sex in the binary of male and female, this judgment added a new strand to our understanding of biological sex. Regardless of these milestones, it is clear equal rights are a distant reality for members of transgender and intersex community in India.

Conclusion

The transgender communities have suffered enough and now its high time they get what a normal human being get in an ordinary circumstances. It is the duty of the country to empower transgenders and provide them with the amenities from which they have been deprived due to social stigma. With time the society is changing by breaking the stereotypes and these communities have started making their way and space in the society in which everyone resides fundamentally. The emerging laws need to be amended as to completely empathize with the needs and desires of these parts of society.

References 

• https://www.hindustantimes.com/chandigarh/struggling-for-survival-trans-community-dips-into-savings-to-feed-others-too/story-E3JLvwyjz3MFhJAUbIn2hM.html 
• https://theprint.in/opinion/modi-govt-releasing-draft-rules-transgender-persons-act-lockdown-a-blow/414331/

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