Last month, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019 amid protests from the transgender community and social workers. It is to be noted that the purpose of this bill is to eliminate stigma, discrimination and abuse against transgender sections standing on the margins of society and link them with the mainstream of society. Although the transgender community itself is opposing the bill, activists associated with the transgender community say that the Indian Constitution gives every citizen of the country the right to freedom from discrimination in every sphere of public life, but the recent transgender bill is their right Is violating
What does the bill say?
It is noteworthy that this bill was introduced in the Rajya Sabha in July 2019 by the Minister of Social Justice and Empowerment.
Definition of transgender person
- The Bill defines a transgender person as a person whose gender does not match the gender prescribed at birth. The definition of transgender under the Bill includes trans-men, trans-women, persons with intersex differences, and gender queer. It also includes people with socio-cultural identity like Kinnar.
- The bill completely prohibits discrimination against transgender persons, including refusal to serve or behaving inappropriately in relation to: (1) Education (2) Employment (3) Health care ( 4) Access and consumption of publicly available products, facilities and opportunities (5) Right to move (6) To live in a house, rent it Area and the right to acquire ownership (7) public or the opportunity to receive private office.
Right of residence
- According to the Bill, every transgender person has the right to live in his family. If the family of a transgender person is unable to take care of him / her, then he / she can be sent to a rehabilitation center on the order of the court.
- No government or private institution can discriminate against a transgender person in employment related matters like recruitment and promotion. If the institute has more than 100 employees, it is expected that it should appoint a Grievance Redressal Officer to investigate the complaints received under the Act.
- It is compulsory for government funded or recognized education institutions to provide inclusive education, sports and recreational facilities to transgender persons without any discrimination.
- The bill directs the government to take necessary steps to provide health services to transgender individuals, including separate HIV surveillance centers and sex reassignment surgeries. The government will review the medical curriculum to address health related issues related to transgender persons and will also prepare a comprehensive medical insurance scheme for them.
Identity certificate or certificate
- A transgender can apply to the District Magistrate to issue a certificate or certificate related to his identity. It is to be noted that the revised certificate can be obtained only when the person undergoes surgery to change their gender to male or female.
- Welfare efforts by the government
- According to the bill, the government concerned will take necessary steps to ensure full inclusion and participation of transgender persons in the society. The government will also take steps for rescue and rehabilitation of transgender persons and vocational training and self-employment. At the same time, the government will also encourage the creation of schemes that are sensitive towards transgender persons and encourage their participation in cultural activities.
Crime and punishment
- Under this bill, the following have been recognized as crimes: (1) Begging or forcing transgender persons to do this work (2) Preventing them from using public places (3) Giving them family or family (4) To prevent them from residing in the village physically, sexually, verbally, emotionally and financially. For these offenses, there can be a minimum sentence of 6 months and a maximum of two years and a fine can also be paid.
National Transgender Council (NCT)
- A provision has also been made to constitute the National Transgender Council (NCT) to advise the Central Government to formulate and monitor policies, legislation and schemes regarding transgender persons. This council will also redress the grievances of transgender persons.
- In 2014, giving a landmark judgment in the case of National Legal Services Authority v. Union of India, the Supreme Court recognized the rights of transgender persons and their right to decide on their gender identity.
- A year later, in April 2015, DMK leader Tiruchi Siva introduced a private bill on the rights of transgender persons. But the private bill of Tiruchi Siva was never discussed on the floor of the House.
- In August 2016, the government also introduced a bill to protect the rights of transgender communities in the Lok Sabha.
- The government’s bill was heavily criticized by many social workers and transgender community individuals over the definition of transgender and many other issues.
- Significantly, the bill defined transgender as a person who is “neither a full woman nor a full man.”
- The bill was referred to a parliamentary standing committee for review after all round criticisms, but in July 2017, the government rejected the committee’s report.
- In December 2018, the government once again appeared in the Lok Sabha regarding the bill and it was passed with 27 amendments, including an amendment to the definition of transgender person.
- After being passed in the Lok Sabha, the bill was sent to the Rajya Sabha, where it could not pass. After this, the government again introduced this bill in July 2019 and in August this bill was passed in the Lok Sabha.
India and Transgender
- There is clearly a lack of social awareness about the transgender community in India. Be aware that for years, transgender was not recognized as the third community in India’s census.
- According to the 2011 census, there were a total of 4,87,803 people in the country who could neither be identified as ‘women’ nor as ‘men’.
- It is important to note that the 2011 census was the first such census in which people from the transgender community were counted. The 2011 census also counted 55,000 transgender children who were identified by their parents.
- The transgender community in the country faces many sexual health related challenges including HIV. A study conducted by UNDP revealed that HIV has the highest prevalence rate among trans-women in the country.
- Several studies have shown that rates of physical and verbal violence are significantly higher among transgender people, including crimes such as child sexual abuse, sexual violence, workplace violence, and hate.
- Various social problems of transgender community such as boycott, unemployment, lack of educational and medical facilities, problems of marriage and child adoption etc.
- The transgender persons got the franchise only in 1994, but the task of issuing voter ID cards to them got entangled with the question of man and woman.
- They are also not given some legal rights like property rights and child adoption.
- They are often abandoned by society, making them easy victims of human trafficking. They are also treated abusively in hospitals and police stations.
- In India, even today, being transgender is considered a social disease and they are socially excluded. The main reason for this is that they can neither be categorized as men nor women, which is part of the archaic system of division on the basis of gender.
- The result is that they do not get education and remain unemployed. They are not even able to take advantage of the medical facilities available to the common people.
- Currently many criminal and civil laws recognize only two categories of gender i.e. man and woman. These include laws such as the Indian Penal Code (IPC), 1860, the National Rural Employment Guarantee Act, 2005 (NREGA) and the Hindu Succession Act, 1956.
- The recent bill talks of recognizing the third gender ie ‘transgender’. However, the Bill does not specify how transgender persons will be treated under certain existing laws.
- Significantly, this bill puts transgender persons and intersex persons in the same category, due to which it is not able to address the specific issues of either community.
- The definition of the word ‘family’ given in the Bill fails to recognize the realities of the eunuchs and other cultural communities who often live in Gharanas due to social and family instability.
- The bill puts the onus on the government to take steps for the rescue, protection and rehabilitation of transgender persons. Social workers say that this provision is unclear and can be misused to undermine the autonomy of transgender individuals.
- Also, no provision has been made in the Bill on the issue of reservation in education and employment for transgender persons, while reservation in education and employment has long been a major demand of the community. It should be noted that in the year 2014, NALSA also gave instructions for reservation in education and employment for transgender persons.
- Also, people in the transgender community say that any provision given in the Bill regarding education or health benefits does not impose any binding obligation on any state body.
- Many experts also believe that the transgender community itself is under-represented in the National Transgender Council proposed under this bill. At the same time, the process of selecting the representation of the transgender community has been questioned.
- It is known that the proposed National Transgender Council will have a total of 5 members from the transgender community.
- The District Screening Committee will issue a certificate of identity to transgender persons, which is clearly a violation of the right to privacy.
- Also, if an identity certificate is refused to a transgender person, there is no provision for appeal against such decision of the District Screening Committee in this Bill.
- The bill provides for separate penalties for crimes with transgender persons, which is much lower than the IPC fixed penalties for similar crimes. This is causing a sense of inequality in transgender.
- The definition of ‘family’ given in the Bill needs to be made more inclusive.
- Under the Bill, transgender and intersex persons should be defined separately and a specific approach should be adopted for each.
- Many people criticizing the bill say that the bill could not be discussed much while it was passed in the Lok Sabha, because the government had also decided to abolish the status of special state of Jammu and Kashmir on the same day.
- The transgender community demands that the bill be discussed once again and necessary reforms should be made keeping in mind the issues of the transgender community.
Article 15 of the Indian constitution completely prohibits discrimination on the basis of religion, race, caste, sex or place of birth in the country. Just as women and men have the right to live life with dignity and dignity, similarly the LGBTQ community of the country also has the right to live dignified and dignified lives. It is necessary that the concerns of the transgender community related to the transgender bill are seriously listened to and tried to address, as the bill ultimately belongs to them and implementing it without their consent can be a major obstacle to its success.
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