Transgender Bill passed in Lok Sabha with Amendments

Context:

• The Lok Sabha recently passed the Transgender (Protection of Rights) Bill, which seeks to define transgenders and prohibit discrimination against them.

Background

• In the landmark NALSA v. Union of India judgment, the Supreme Court laid down that transgender and intersex persons have the constitutional right to self-identify their gender as male, female or transgender even without medical intervention.
• The court held: “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity”.
• Hence, medical procedures should not be required as a pre-condition for any identity documents for transgender and intersex persons, nor should there be any requirement of a mental health assessment.
• Requiring a person to submit proof of medical treatment or mental health assessment of their gender identity violates one’s right to dignity, the right to be free from unwanted medical treatment and the right to be free from discrimination.
• The Transgender Bill was first introduced in 2016.

About

• Originally, the Bill defined transgender as a person who is "neither wholly male nor wholly female, or a combination of female or male, or neither female nor male". This definition was widely criticised as insensitive.
• The definition has now been amended in the Bill as per the recommendation of the Standing Committee.
• It defines transgender as "transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man (whether or not such person has undergone sex re-assignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinnar, hijra, aaravani and jogta.”
• The amended Bill also provides for a definition of "persons with intersex variations" as "who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body”

Highlights of the Bill

• Prohibition against discrimination: Clause 3 of the Bill prohibits discrimination of transgenders in relation to opportunities for education, job, health care services, and access to services, accommodation, transport etc.
• Right to be recognized as transgender: Clause 4 states that every person has a right to be recognized as a transgender.
• Procedure for transgender recognition: The Bill lays out procedure for recognition as transgender, as per Clauses 6 to 8. The certificate of identity has to be obtained from the District Magistrate, who will issue the certificate based on the recommendations of a District Screening Committee, which will comprise the Chief Medical Officer, District Social Welfare Officer, Psychologist or Psychiatrist, and a representative of transgender community.
• Establishments not to discriminate transgenders: Clause 10 imposes the obligation on establishments to not to discriminate transgenders in relation to employment, promotion, and other job benefits.
• Right of residence: No transgender person shall be separated from parents or immediate family on the ground of being a transgender.
• Government is mandated to formulate welfare schemes for transgender persons.
• National Council for Transgender Persons is sought to be established.
• Offences: Compelling a transgender person to indulge in begging or bonded labour is made an offence. Also, denial of right of public passage to a transgender and forcing such a person to leave household are made offences.
• The Bill is stated to be introduced as per the 2014 judgment of the SC in NALSA v Union of India, which recognized transgender identity.

Concerns flagged over the Bill

• According to Dr. Shashi Tharoor, the Bill wrongly assumed that all persons with intersex variations will be transgenders. He also objected to the requirement imposed by the Bill to get a certificate of identity from the District Magistrate. According to him, self-identification as transgender should be the only basis.
• It was also pointed out that corresponding amendments should be made in several other laws like IPC to include transgenders. For example, definition of rape under Section 376 IPC deals with crime committed against a female.
• Further, a transgender commission at the national level is not enough. There has to be a welfare board for transgenders and a helpline number for the community. They also need equal rights.
• The provisions mandating certificate of identity from a District Magistrate for recognition as a transgender are criticised as against the spirit of NALSA judgment.
• The SC had upheld the right of transgender person to decide their "self-identified gender". The criticism is that forcing a transgender person to undergo screening to establish identity is invasive and insensitive, violating right to privacy and dignity.
• The 2018 Bill in Section 6 establishes a District Screening Committee for the purpose of recognition of transgender persons. This Screening Committee includes a chief medical officer and a psychologist/psychiatrist, which goes to show that medical and psychological tests would be required for grant of change of gender identity. There is no provision in the Bill that gender change would be permitted without medical or psychological treatment.
• The Bill also does not allow for recognition of gender identity as male or female. It only allows for an identity certificate as ‘transgender’. This goes against the decision of the Supreme Court, which recognised the right to self-identify oneself as male, female or transgender and would also be forcing intersex persons to get a gender identity as “transgender”.
• Debates on the Bill have always included the demand for reservations for transgender and intersex persons in educational institutions and in public employment as they are seen to be crucial for their social inclusion. This was not only mandated by the Supreme Court in NALSA, the Rights of Transgender Persons Bill 2014 too provided for 2% reservation.
• However, the 2018 Bill does not provide for any reservation. It provides in Sections 10 and 14 that there would be no discrimination in education and employment, but these rights are meaningless if transgender persons are not able to get access in the first place.
• The Bill in Section 19 makes it a criminal offence for anyone to compel a transgender person into begging. This has serious implications. A large number of people from the trans and intersex community are engaged in begging and sex work due to discrimination and not having any other opportunities. This provision would lead to members of the trans community being criminalised.
• When the criminalising of begging itself has been held to be unconstitutional by the Delhi High Court, there is no place for this offence in the 2018 Bill. For too long, gender minorities have been criminalised for being out in the streets and in public, and having this offence in the Bill will lead to further criminalising of transgender lives.
• The bill does not have a whole gamut of positive rights such as the rights of trans and intersex persons to inheritance of property, rights within the family such as adoption and to be free from domestic violence, rights of political participation such as the right to vote and hold public office, and the right to health to include free sex reassignment treatments.
• It also does not make sexual violence against transgender and intersex persons a criminal offence. The current law on rape is gender specific and transgender persons have no recourse under criminal law for sexual assault.

Way Forward

• The K.’s Gender Recognition Act 2004 was the first law in the world allowing people to change gender without surgery. Argentina, Ireland and Denmark, have also passed laws that allow people to ‘self-declare’ their gender, rather than seek approval from a panel of medical experts.
• District Screening Committee needs to be removed from the 2018 Bill. The Bill needs to state explicitly that no medical or mental health examination will be required and applicants will simply need to submit an affidavit attesting the request for a change of gender identity.
• Equality would demand that in order for the trans and intersex community to get access to their basic social rights, there should be horizontal reservation in education and employment provided to them. When the new Rights of Persons with Disabilities Act 2016 was passed, it included reservations of 5% and 4% in education and government jobs, respectively. However, the 2018 Bill has no mention of similar provisions.
• The bill needs to be overhauled, made compliant with the NALSA verdict, and incorporate the community feedback given to the Standing Committee.
• The Bill is an opportunity to ensure that the constitutional rights of transgender and intersex persons are realised. The opportunity must not be lost and the prevailing concerns over the legislation must be addressed.

Practice question:

Discuss the important provisions of the Transgender (Protection of Rights) Bill, recently passed in Lok Sabha. Examine the various concerns flagged over the bill and suggest way forward.