This article has been written by Ansh Mohan Jha, a student of BA LLB, First Year at Pune University.
Looking back into history, we find that transgender people, in India, have not only been discriminated against but also been deprived of their basic rights. Finally, in 2012, National Legal Services Authority of India extended its support to the transgender community and filed a petition with the Honourable Supreme Court on their behalf, demanding equal rights for them and legal declaration of their gender identity. After two years, on April 15, 2014, the Supreme Court, in its landmark ruling, upheld that the fundamental rights guaranteed by the constitution will be equally applicable to them and recognized them as the third gender. Major takeaways from the verdict are listed below.
- Transgender people were earlier forced to categorize themselves as either male or female. That’s why the Supreme Court, in its historic judgement, created the “third gender” status for them, which will play a major role in creating a society inclusive of all genders.
- The Supreme Court ordered the Centre to recognize transgender persons as socially and economically backwards.
- The apex court directed the central as well as state-level governments to run social welfare schemes for the betterment of the transgender community and to create awareness among the common masses to eradicate the stigma regarding their culture, belief, religion and gender.
- The court reiterated that reservation must be granted to the transgenders in getting education and employment, and asked the government to classify them as OBCs.
- Absence of law recognizing transgender as the third gender can not debar them from getting jobs and education. They must be provided equal opportunities in availing education and employment.
Rights of Transgender Persons Bill, 2014
On April 24, 2015, Tiruchi Siva, the Dravida Munnetra Kazhagam (DMK) leader, tabled the Rights of Transgender Persons Bill, 2014 in the Rajya Sabha. He argued that 29 nations and the leading democracies in the world including US, UK, Canada, France, Australia, Italy and Singapore have formulated legislations to safeguard the rights of transgender persons. Furthermore, he highlighted that the actual number of transgenders maybe around 20,00,000, not 4,50,000 as per the government records. He also discussed how the transgenders have been deprived of their basic rights, except the right to vote. Key features of the bill are listed below.
- The bill proposes the formulation and implementation of a comprehensive national policy to ensure the development and welfare of the transgenders.
- It seeks to establish the Employment Exchange, National and State Commission for transgender persons, Special Transgender Rights Court for their protection of rights.
- No child can be separated from his or her parents on the grounds of being a transgender unless a competent court directs to do so.
- There must be 2% reservation for the transgenders in the educational institutes and in government jobs.
- The bill also proposes to impose penalty on those persons who make disparaging comments on transgenders, which includes imprisonment up to one year and with fine
Despite the opposition of the ruling members, the bill was passed in the Upper House, the first private member’s bill passed in the last 46 years. The bill, however, did not pass in the lower house.
The Transgender Persons (Protection of Rights) Bill, 2016
In August 2016, Thaawarchand Gehlot, the Minister of Social Justice and Empowerment, introduced the Transgender Persons (Protection of Rights) Bill, 2016 in Lok Sabha. The bill, however, was vehemently opposed by the opposition parties and referred to the Standing Committee on Social Justice and Empowerment. Salient features of the bill are listed below.
Definition of Transgender
The Bill defines a transgender person as one who is (i) neither wholly female nor male; or (ii) a combination of female and male; or (iii) neither female nor male. In addition, a person’s gender must match the gender assigned at birth. This will include trans-men, trans-women, persons with intersex variations and gender-queers.
Recognition of Identity of Transgender Persons
A person, under the bill, recognized as a transgender person will have the right to self-perceived gender identity. In order to get access to all the rights and benefits provided to the transgender community, it is mandatory for a transgender person to get the Certificate of Identification.
Procedure for getting the Certificate
- A transgender person has to make an application to the District Magistrate.
- The DM will refer the application to the District Screening Committee consisting of five members – 1. Chief Medical Officer, 2. District Social Welfare Officer, 3. Psychologist, 4. Member of transgender Community and 5. Government Officer.
- The DM will further issue the certificate to the transgender person after on the basis of a recommendation from the Screening Committee.
Obligation of Establishment And Other Persons
- A transgender person can not be discriminated against in any matter relating to employment, but not limited to, recruitment promotion and other related issues. Every Establishment needs to strictly follow the provisions of this Act. Appointment of a complaint officer is necessary for those establishments consisting of 100 or more people so that the violations of the provisions of the Act may be addressed.
- A transgender person can not be separated from the parents on the grounds of being a transgender, except on the orders of a competent court.
- A transgender person will have the right to reside in the house of the parent or immediate relative without being discriminated. If a parent or his immediate relative is unable to take care of a transgender person, then such a person will be sent to the rehabilitation centre.
Education, Social Security and Health of Transgender Person
- An educational institute funded or recognised by the Government shall provide inclusive education, opportunities of sports, leisure and recreational activities to every transgender without any discrimination
- Several social welfare schemes will be started by the government so as to uplift their standard of living. The Government will begin vocational training and self-employment programmes so that they can easily get a job and lead their lives with dignity.
- Every hospital will have a separate department for the transgenders, where they can easily avail all the medical facilities, including sex reassignment surgery and hormonal therapy. Moreover, the Bill also stated that the medical curriculum will be framed in such a manner so that the doctors can easily treat all their health issues. They will also get medical insurances to avail free medical facilities.
National Council for Transgender Person
The Bill proposes the establishment of National Council for Transgender Person, headed by the Union Minister of Social Justice and Empowerment. The main responsibility of the Council is to advise the Central Government on the formulation of policies, programmes, legislations and projects regarding the Transgender community. Furthermore, it also needs to analyse and monitor the impact of those policies and legislations on them, and report it to the respective ministry. The working of the various Departments of Government and Governmental and non-Governmental organizations for the matters related to transgender persons will also be reviewed and coordinated by the Council to ensure their smooth and effective functioning.
Offences and Penalties
Whoever forces the transgender community to leave the village or house of residence, compels them to indulge in the act of begging or bonded labour, obstructs them from having access to public places and causes harm to them either physically or mentally will be punished. The punishment will not be less than 6 months but which may extend to two years with a fine.
Shortcomings of the Bill
Vague Definition of Transgender
The bill defines a transgender person as one who is (i) neither wholly female nor male; or (ii) a combination of female and male; or (iii) neither female nor male. The bill, however, does not state whether the terms “male” and “female” means biological sex or it refers to one’s psychological sense of gender. Even a male or female can identify himself or herself as transgender and vice-versa. The definition consists of several terms – trans-man, trans-woman, intersex variations and gender-queer, which are not properly defined.
The Supreme Court, in its verdict, asserted that transgender persons have the right to self identify themselves as either male or female or third gender, but the bill makes it mandatory for them to get the Certificate of Identification from the District Magistrate. The DM can issue the certificate only after the approval of the District Screening Committee. A transgender, under the bill, can exercise all the rights and avail the benefits only if the certificate is issued by the committee. This provision contradicts the right of self-identification.
No Provision for Reservation
Due to social stigma, a transgender person finds it extremely hard to get a job and admission in educational institutes. That’s why the SC asked the government to give reservations to the transgender community both in educational institutes and in government jobs so as ensure that they do not face discrimination on the grounds of being a transgender. However, the bill has no provision which grants reservation to them.
Violence within the family
The bill does not address the atrocities which are committed on a transgender person within the family. It states that a transgender person will not be separated from the family on the grounds of being a transgender, but it is to be understood that the violence within the family is the prime factor that compels a transgender to leave the family.
Criminalization of Begging
Transgender mainly earn their livelihood through begging and working as sex workers since they do not get jobs easily because of the following reasons:-
- They lack the required skills to get a job since getting an education is still a dream for them.
- Even if they are educated, nobody wants to employ them because of social stigma.
Therefore, they have no other option but begging to earn money. Without granting reservations in jobs, the Bill criminalises the act of begging.
The Bill met with severe criticism and was referred to the Standing Committee, which examined the bill and submitted its report on July 21, 2017.
The Transgender Persons (Protection of Rights) Bill, 2018
On December 17, 2018, certain amendments to the Bill were introduced in Lok Sabha. The Bill, along with amendments, was passed on December 18, 2018. The major amendments are discussed below.
- The Bill now states that ‘a transgender person is one whose gender does not match the gender assigned at birth. It
- includes trans-men and trans-women, persons with intersex variations, and gender-queers. The 2018 Bill also includes persons having such socio-cultural identities as kinnar, hijra, aravani, and jogta.’
- After undergoing sex reassignment surgery, a transgender can make an application, along with the certificate issued by the medical officer of the institute where an individual has undergone surgery, for a revised certificate to the District Magistrate. The DM can issue the certificate without the recommendation of the District Screening Committee.
- Every Establishment needs to appoint a complaint officer even if it consists of less than 100 people. Just like persons, no establishment can discriminate against a transgender person.
- The government will cover the medical expenses of a transgender person by an insurance policy for Sex Reassignment Surgery, Hormonal Therapy, Laser Therapy and other health issues.
- The National Council of Transgender will be empowered to redress the grievances of the transgender persons.
The bill was heavily criticised for not incorporating all the suggestions made by the Standing Committee. The bill was primarily criticised for not removing the provision of the establishment of the District Screening Committee for issuance of Identity Certificate since it contradicts the right to self-perceived gender identity. Moreover, the bill neither decriminalises the act of begging nor provides mandatory reservation in jobs and in educational institutes to the transgender community. As a result, the bill got lapsed, and a newer version of the bill was again tabled by Thaawarchand Gehlot, which was passed by a voice vote in the lower house. The newer version of the bill excluded the provision which states the establishment of District Screening Committee. However, a transgender person does not have the right to self-perceived gender identity without undergoing sex surgery. The bill has decriminalised the act of begging, but there is no provision for mandatory provision. The bill is still pending in Rajya Sabha.
In India, more often than not, we come across the term, “human rights”, but it is excruciatingly painful to witness the maltreatment of the transgenders in every possible manner as if they are not human beings. Does their exclusion from society not decipher our narrow-minded and inhumane nature? It is the high time when we, human beings, need to build a society, inclusive of all the genders, where everyone gets equal rights and treatment. At the same time, our policymakers must amend the Transgenders Protection Bill as per the demands of the transgender community so that they can prosper socially, economically and politically, and contribute to the development of the nation.
It was neither their choice nor the result of their Karma (Action) to take birth as a transgender, but they are coerced to live their lives like an unwanted part of the society and nobody even cares to realise how traumatised they feel when one makes a mockery of them. Why?
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