RSTV: THE BIG PICTURE- TRANSGENDER PERSONS BILL
The bill seeks to empower the transgender community by providing them a separate identity. The Transgender Persons (Protection of Rights) Bill, seeking to define transgender and prohibit discrimination against them, was introduced in the Lok Sabha two years ago. Amid din, five members participated in the debate, questioning the provisions of the legislation. The amendments moved by the government, along with some others moved by the opposition members, were considered. Union Social Justice and Empowerment Minister said that the Bill was sent to a standing committee and the government has accepted its 27 amendments.
Definition of a transgender person
- 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, the person’s gender must not match the gender assigned at birth. This will include trans-men, trans-women, persons with intersex variations and gender queers.
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). The DM will refer such an application to a District Screening Committee.
- The District Screening Committee will comprise a: (i) Chief Medical Officer; (ii) District Social Welfare Officer; (iii) psychologist or psychiatrist; (iv) representative of the transgender community; and (v) government officer
- The DM will issue a Certificate of Identity as ‘transgender’ based on the recommendation of this Committee.
- The gender of a transgender person will be recorded in all official documents, on the basis of this Certificate.
- If there is any change in gender, the transgender person may apply for a revised certificate by following the same process as that of obtaining a Certificate of Identity.
Prohibition against discrimination against transgender persons
- The Bill prohibits discrimination against a transgender person, including unfair treatment or denial of service in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to public goods and facilities; (v) right to movement; (vi) right to rent or own property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment which has custody of a transgender person.
- All public and private establishments are prohibited from discriminating against a transgender person in employment matters, including recruitment and promotion. If an establishment has more than 100 persons, a designated person will deal with complaints in relation to the Bill.
Benefits related to employment, health and education
- The central or state governments shall provide welfare schemes and programmes to facilitate and support livelihood for transgender persons. This will include vocational training and self-employment.
- The central and state governments shall take steps to provide healthcare facilities to transgender persons including: (i) separate HIV surveillance centers; (ii) sex reassignment surgery and hormonal therapy counselling; (iii) review of medical curriculum; and (iv) a comprehensive insurance scheme.
- Educational institutions shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons.
National Council for Transgender persons
- A National Council for Transgender (NCT) persons will be set up to advise the central government on policies, and legislation related to transgender persons. It will also monitor and evaluate such policies.
- The NCT will consist of representatives from (i) ministries such as social justice and empowerment, health, minority affairs; (ii) NITI Aayog; (iii) National Human Rights Commission and National Commission for Women; (iv) state governments; (v) nominated members from the transgender community; and (vi) experts from non-governmental organisations.
Offences and Penalties
- The Bill specifies the following offences: (i) compelling transgender persons to beg or do forced or bonded labour (excluding compulsory government service for public purposes); (ii) denial of use of a public place; (iii) denial of residence in household, village or other place of residence; and (iv) physical, sexual, verbal, emotional or economic abuse.
- These offences will attract imprisonment between six months and two years, and a fine.
Constraints in the bill:
- Government, however, has refused to address two major issues – decriminalising homosexuality under Section 377 that directly concerns transgenders and reservation for transgender community in educational institutions and government organisations.
- The right to self-determination of a transgender has been rightly recognized by the Supreme Court under right to life in Article 21 of the Constitution of India, but the objective means to achieve this has not been focused upon.
- The appointment of the District Screening Committee is also against the NALSA judgement which recognized right to self-identity as an inalienable right under Article 21 of the Constitution of India
- Similarly, the bill is silent in areas of health, affirmative action,anddecriminalising activities that marginalised trans communities are compelled to undertake to eke out a living. There are also no penal provisions in the law to guard against the trans community being subjected to atrocities and to protect its members in prisons and juvenile homes.
- Another shortcoming in the implementation which the Bill will face is lack of mechanism for representation of the transgenders. For example, as we have a National Commission for Women and for lower castes, a similar type of provision ought to be made here too.
- Although the Bill may come into force, it may still not be effective due to lag in the authorities to act for the rights of the transgenders.
- Further, some provisions of the Bill are also in conflict with the international conventions on transgenders.
- Activists had objected to transgender persons not being defined properly and the Bill not having any provision for self-determination of gender.
- The right of transgender persons to self-identification, instead of being certified by a district screening committee is demanded by activists.
- The Bill has prescribed punishments for organised begging. Trans community isn’t begging because that’s what they want to do. Trans youth who don’t find jobs join begging due to systematic discrimination in education, job, and healthcare.
- The Transgender Bill does not mention any punishments for rape or sexual assault of transgender personsas according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.
- The law talks of a National Commission for Transgenders, but has nothing on membership structure, objectives, grievance redressal and other features of the commission
- Creating awareness ignored:-
- Further, providing children expressing trans identity safe spaces, and making knowledge and information about the community mainstream via the school curriculum to further understanding and empathy have been ignored in the new law..
- The Bill must recognise that gender identity must go beyond biological. Gender identity is an individual’s deep and personal experience. It need not correspond to the sex assigned at birth. It includes the personal sense of the body and other expressions such as one’s own personal inducing proceeds.
- Sensitising the workforcein protecting the rights and dignity of the community.
- Leading voices from the community have called for vocational programmes in creative fields, a recommendation made by the Standing Committee too.
- There is need for a comprehensive surveyon the socio-economic status of the community.
- Transgender welfare boardsare needed in different States.
- Transgender persons should take part in the national Census to generate accurate data.
- Explicit policies on transgender-friendly registration and non-discriminationand healthcare workers need to be trained to provide non-judgmental care.
- Standing committee recommendations :-
- Recommended re-drafting the definition of a ‘transgender person’ to make it inclusive and accurate; providing for the definition of discrimination and setting up a grievance redress mechanism to address cases of discrimination and granting reservations to transgender persons.
- There is a requirement of special courts which can deal with the offences against transgenders speedily and effectively.
- The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution. However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
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