- Lok Sabha has passed a new Bill to protect and give equal rights to transgender persons.
- The Transgender Persons (Protection of Rights) Bill, 2018, as passed, is an improved version of the legislation introduced in year 2016.
Revised definition says:
- A transgender person is somebody “whose gender does not match the gender assigned to that person at birth”.
- It includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani, and jogta.
- Recognition of transgender identity: Self-determination of identity vs. verification of eligibility for entitlements.
- The Supreme Court has held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under Article 21 of the Constitution.
- This includes the right of transgender persons to self-identification, instead of being certified by a district screening committee.
- The meaning and implication of the term ‘self-perceived gender identity’ is unclear.
- Definition of ‘transgender person’ and Criteria specified in the definition of ‘transgender person’ are unclear.
- The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons are not defined.
- The Bill does not provide for employment opportunities through Reservations.
- The bill has prescribed punishments for organised begging, but such provisions disregard the lived realities of transgender persons for whom begging often is the last resort.
- Punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code is not mentioned in the bill which only men and women.
- The Bill makes “sexual abuse” punishable, with an imprisonment up to 2 years, but it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.
- The Bill does not grapple with the realization of civil rights such as
- civil partnership
- adoption and
- property rights
- Transgenders persons are still deprived of their fundamental rights and the constitutional guarantee provided by the Supreme Court
Previous definition of transgender persons in the bill said a person who is
- Neither wholly female or wholly male.
- A combination of female and male
- Neither female nor male
The definition was criticized for violating the right to self-determined identity and being insensitive.
Highlights of the Bill
- Prohibition against discrimination
- Right of residence
- Health car
- Welfare schemes to transgenders
- Offences and Penalties
- Certificate of identity for a transgender person by District Screening Committee
- The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.
- In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.
- A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill by District Magistrate on the recommendation of a Screening Committee including a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
- The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas.
- Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.
- The need of the hour is a robust Bill with strong anti-discrimination provisions.
- It should remedy the historical injustices faced by the transgender community, which continues to fight for the most basic rights even today.
- It is hoped that the Bill will be revised and brought in line with the National Legal Services Authority (NALSA) judgment to ensure full realization of transgender persons’ fundamental rights.