Transgender Bill 2019

  • Category
    Society
  • Published
    6th Aug, 2019

Issue

Context

The Transgender Persons (Protection of Rights) Bill, 2019 was recently introduced in Lok Sabha by the Minister for Social Justice and Empowerment.

Background

  • Transgender community includes Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv?Shakthis etc., who have been a part of Indian society for centuries. The Vedic and Puranic literatures mention “tritiyaprakriti” meaning the third gender.
  • Though most of the eunuchs seen today are begging at traffic signals or during weddings, they were a respected lot during the Mughal rule in the Medieval India.
  • During the British rule, they were denied civil rights and were considered a separate caste or tribe who did kidnapping and castration of children and danced and dressed?like women.
  • In Post-Independence Era, the Act was repealed but its legacy continues and many local laws reflected the prejudicial attitudes against certain tribes, including Hijras.
  • In contemporary times, the LGBTQ group is referred to as the “lesbian, gay, bisexual, transgender, and queer community” which includes those with gender dysphoria and different sexual orientations.
  • It also needs to be understood that “Sex” and “Gender” are different things. One may be born as Male (sex) but may identify himself like a Woman (Gender). So “Sex” is biological and “Gender” is the real sexual identity of a person.

Transgender in India

Count

  • Indian census has never recognized the third gender, i.e., transgender while collecting census data for years.
  • 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)
  • The 2011 census also reported 55,000 children as transgender identified by their parents.

Issues

  • Sexual health issues
    • Transgender communities face several sexual health issues including HIV.
    • Both personal- and contextual- level factors influence sexual health condition and access to and use of sexual health services.
  • Mental health issues
    • Some of the mental health issues reported in different community forums include depression and suicidal tendencies, possibly secondary to societal stigma, lack of social support and violence-related stress.
    • Most transgender people, especially youth, face great challenges in coming to terms with one's own gender identity which are opposite to that of the gender identity imposed on them on the basis of their biological sex.
    • They face several other related issues such as: shame, fear, and internalized transphobia; adjusting, adapting, or not adapting to social pressure to conform; fear of loss of relationships; and self-imposed limitations on expression or aspirations.
  • Violence

Multiple studies have shown that transgender people across the age spectrum face alarmingly high rates of physical and verbal violence, including child abuse, sexual violence, intimate partner violence, workplace violence and hate crimes.

  • Social Exclusion

Social Exclusion Framework is increasingly used in highlighting the issues and problems faced by disadvantaged and disenfranchised groups.

  • Family - Most families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling from behaving or dressing-up like a girl or woman.
  • Heath care Setting - Often, healthcare providers rarely had the opportunity to understand the sexual diversities and they do not have adequate knowledge about the health issues of sexual minorities.
  • Lack of livelihood options - Most employers deny employment for even qualified and skilled transgender people. Lack of livelihood options is a key reason for a significant proportion of transgender people to choose or continue to be in sex work.
  • Residence – The community is grossly discriminated by Indian Society when it comes to renting or selling the house to a transgender.
  • Insurance – Health insurance companies often systematically exclude transition-related care and in many cases these exclusions are used to deny coverage for a wide range of care for transgender people that may or may not have any connection to gender transition.

Initiatives Taken

  • The Supreme Court of India passed a unique judgment in 2014 stating one’s sexual orientation as the integral part of personality, dignity, and freedom and identified transgender as a third gender.
  • In the National Legal Services Authority (NALSA) versus Union of India case, the apex court provided the transgender (Hijras and Eunuchs) a legal identity.
  • 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 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.
  • In 2017, a nine judge bench of the Supreme Court held that the Right To Privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
  • In 2018, a Constitution Bench of the Supreme Court has unanimously decriminalised homosexuality (Section 377). Section 377 created a class of criminals by typecasting Lesbian, Gay, Bisexual, and Transgender, Queer (LGBTQ) individuals as sex-offenders.
  • Human Rights Campaign Foundation has released Corporate Equality Index (CEI) which is the national benchmarking tool on corporate policies and practices pertinent to lesbian, gay, bisexual, transgender and queer employees.
  • Occupational Safety, Health and Working Conditions Code, 2019 requires the employer to provide a hygienic work environment like separate bathing places and locker rooms for male, female and transgender employees
  • The Transgender Persons (Protection of Rights) Bill, 2019

Key Provisions

  • 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 are 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.
  • 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. 
  • Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. 
  • 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 medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
  • Certificate of identity for a transgender person: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
  • Welfare measures by the government: The Bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.
  • Offences and penalties: The Bill recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) 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: (i) Union Minister for Social Justice (Chairperson); (ii) Minister of State for Social Justice (Vice- Chairperson); (iii) Secretary of the Ministry of Social Justice; (iv) 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.

 

Issues in the Bill

  • Self-Identity: Even though the bill says that a transgender person “shall have a right to self-perceived gender identity,” its language could be interpreted to mean transgender people are required to have certain surgeries before legally changing their gender.
  • Privacy: A District Screening Committee would issue a certificate of identity to recognise transgender persons. This is also a violation of Fundamental Right to Privacy.
  • Definition: The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India. The terms, ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ have not been defined.
  • Existing Framework: Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’. It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders
  • Other Issues:
    • 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 Screening Committee.
    • The bill is also silent on whether a trans person who holds a male or female gender certificate will have access to government welfare schemes and programs meant for transgender people
    • The Bill is silent on granting reservations to transgender persons.
    • The 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.

Recommendations

Regarding Bill

  • The mention of intersex persons in the Indian bill is an important inclusion but the bill should be renamed the Rights of Transgender and Intersex Persons Bill and 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.

Other Recommendations

  • hospitals should have medical facilities for Transgender Community for undergoing feminization treatment.
  • 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.
  • India should take lessons from Thailand. It is one of those model countries wherein all the required facilities are being made available to the Transgender Community.
  • Parents of the Transgender need to be counseled appropriately in order to treat Kinnar children at par with other normal children
  • There should be a population of the community. The community should be involved in this exercise. For the time being, United Nations Development Programme(UNDP has more authentic data on Transgender in India. It could be be used for planning welfare schemes.
  • Ministry of Social Justcie and Empowerment should take up research studies to generate more evidence to design the programs and interventions for the community.
  • The ministry should also compile the existing experiences /interventions taken by many States like Tamil Nadu, Maharashtra, Sikkim, and Delhi etc.

Learning Aid

Practice Question:

Despite being a socially diverse and democratic nation, transgenders have still not been weaved into the social fabric of India.Discuss the issues faced by the community and examine how effectively the recently introduced Transgender Bill 2019 can address them. Also enumerate other initiatives in the past taken by the government to uplift this section.

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