The Transgender Persons (Protection of Rights) Bill, 2018

Context:

  • The passage of a Bill in the Lok Sabha to secure the rights of transgender persons is a progressive step towards extending constitutional protection to this highly marginalised community.
  • The Transgender Persons (Protection of Rights) Bill, 2018, as passed, is an improved version of the legislation introduced two years ago.

Background

Transgender communities in India-

  • According to the 2011 Census, India has 6 lac people belonging to the transgender community.
  • Transgender individuals in India are broadly called Hijras, Kinnars, and Aravanis in different parts of the country.
  • There are preconceived notions that Hijra are “neither male nor female”. Hijras are mostly people who are born with male physiology; adopt feminine gender identity, women’s clothing and other feminine gender role.
  • Odisha became the first state in the country to provide food grains, pension, health, education and housing benefits to the transgender community, including them in the Below Poverty Line (BPL) category.
  • Kerala came up with a ‘Transgender policy’ last year in december aiming to end the social stigma attached to the community.
  • Tamil Nadu has constituted the Aravanis Welfare Board in 2008, providing pensions for the community and creating awareness in schools on gender-variant people.

Problems faced by transgender community–

  • Criminal law is largely gender neutral in India while personal laws in India are chiefly gendered. The third gender is thus completely visible in criminal cases while invisible when it comes to the benefits accruing from family law.
  • We have been taught that there are only two genders in the world and anything beyond is considered as abnormal . Transgenders fall into that abnormal zone making them an unwanted minority.
  • Family looks at the identity change of their boy or girl as a social humiliation. Family is not ready to accept them as they are with their present identity. Some parents employ violence to change the behavior of their kids .
  • Many a times they face insults, violence and humiliations while growing up which continues when they are adults.
  • Since they are not qualified to be employed most often end up in taking up begging in the streets and are pushed into sex work.
  • Another major area of concern is the constant denial of housing in housing societies and other areas leading them to being housed in slums.

National Legal Services Authority (NALSA) v. Union of India and others judgement-

  • The judges ruled that transgender people should be recognized as a third gender.
  • Upheld the right of the transgender persons to decide their self-identified gender
  • Judgment gave broad directives to the central and state governments on affirmative action, public health, social welfare and other services to be made available for transgender people
  • The Supreme Court noted that Section 377 of the IPC, though associated with specific sexual acts, targeted certain identities, including Hijras, and was used as an instrument of harassment and physical abuse against transgender persons.

The Transgender Persons (Protection of Rights) Bill 2016-

  1. Definition of Transgender Person
  • It 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.
  • The Bill defines a person with intersex variations as a person who at birth shows variations in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from normative standard of male or female body.
  1. Issuance of Revised Certificate of Identity
    • After the issue of a certificate of identity, a transgender person may apply for a revised certificate only if the individual undergoes surgery to change their gender either as a male or a female.
    • The application must be accompanied with a certificate from the Medical Superintendent or Chief Medical Officer of the institution where the individual has undergone surgery.
    • The District Magistrate can issue the revised certificate without the recommendation of the District Committee.
  2. Welfare Scheme
  • It provides that the government will cover medical expenses by an insurance scheme for sex reassignment surgery, hormonal therapy, laser therapy or any other health issues of transgender persons.
  1. Role of National Council
  • The National Council has been additionally empowered to redress the grievances of transgender persons.

Criticisms:

Several civil society groups have been vocal about their opposition to the Bill. The Bill disregards many of their suggestions as also some of the crucial points raised by the standing committee report of July 2017.

  • This includes the right of transgender persons to self-identification, instead of being certified by a district screening committee.
  • The panel had also pointed out that the Bill is silent on granting reservations to transgender persons.
  • The bill has prescribed punishments for organised begging. However, the Bill doesn’t provide anything to better to condition in those areas, it doesn’t provide for reservation.
  • The Transgender 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 Bill also appears to conflate intersex and trans identities without realising that while the needs of both communities may overlap, they are also distinct. It also says that if a transperson cannot be cared for by their own family, a competent court may send them to a rehab home, which is an assault on an adult’s rights.

Suggestions-

  • Major issue lies with societal acceptance of transgenders and recognition that this section is not represented at various levels in government.
  • Steps like creating awareness among people of the society, providing transgenders assistance in schooling and higher education .
  • Sometimes laws are needed to bring change in the societal behavior like strict punishment for discrimination, reservation in clerical jobs etc
  • It would have been a forward move if they were allowed to choose their identity as a male, female or other. The proposed government’s bill takes away this right from them.
  • Because of the fear of backlash from society, family and friends, coming out as a transgender is itself a very challenging move for those who hide their identity.
  • Society should be made sensitive enough to realize it is none of the concerned person’s fault.
  • Environment should be made conducive to their full development, right to employment and special needs.They are able citizen, good to work and contribute to the economy.

Conclusion

There is much good intention behind the welfare provisions, but social legislation is much more than high-minded clauses. It needs to be followed up with zealous implementation and framing of deadlines to achieve specific objectives.

 

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