Transgender Persons (Protection of Rights) Act, 2019

    Helping the transgender community during the covid-19 crisis

    Background

    The Rights of Transgender Persons Bill was first introduced as a Private Member bill by Tiruchi Suva in 2014. It was passed by Rajya Sabha in 2015. It included many provisions for upliftment of the transgender community including-

    • Rights of transgenders
    • 2% reservations for transgender community under all government establishments and educational institutions.
    • Formation of welfare schemes and programmes for transgenders.
    • Setting up of Special Employment Exchanges for the community.
    • Formulation of National and State Commissions for transgenders.
    • Setting up of Transgender Right Courts.
    • Offences and penalties for crimes against transgenders.

    Many of these provisions were seen as progressive and were widely accepted by the transgender community. Despite of this, the bill was never taken up in the House of People but was later reintroduced as the Transgender Persons (Protection of Rights) Bill in 2016 after removing many of these provisions.

    Criticism

    The 2016 bill was severely criticized by the social activists and the transgender community as-

    1. The bill defined transgender as “partly female or male; or a combination of female and male; or neither female nor male.”   In addition, the person’s sense of gender must not match with the gender assigned at birth.  The Bill further states that this will include trans-men, trans-women, persons with intersex variations and gender-queers.  There is ambiguity here, as the definition of transgender has been confused with that of an inter sex person.
    2. This bill offers a certificate to recognize oneself as a “transgender” but to obtain the same, they have to appear before a Screening committee (medical officer, psychologist/ psychiatrist, government official, district welfare officer and a transgender representative). This provision is in direct contradiction with the NALSA report (2014) which gave transgenders the right to self identify themselves as male, female or third gender.
    3. The new bill ignored reservation provision of the 2014 bill and replaced it with “equality in educational establishments” instead.
    4. The bill states that any person who shall compel a transgender into begging shall be imprisoned for 6 months to 2 years, with or without a fine. This provision fails to recognize the guru-shishya parampara in the Hijra culture. A country where transgenders find it difficult to avail jobs, begging is the only source of livelihood they are left with. Criminalizing begging can put repercussions on their livelihood.
    5. Any sexual, physical or emotional abuse against a transgender person attracts maximum imprisonment of 2 years. On the contrary, a much higher form of punishment is available for the same offence against a male or a female.
    6. According to the bill, no transgender person could be separated from their parents or immediate family on basis of being a transgender. Further, if the family was unable to take care of such a person, they would be placed in rehabilitation centres only after getting a court order. This provision ignored the fact that majority of the trans people face discrimination in their biological families following which they are rehabilitated by trans communities.

    Aftermath

    As the bill was widely criticized and rejected, it was send to a standing committee for review. The bill was then again introduced in 2018, and was passed in 2019 after 27 amendments. The revised provisions of the act now include-

    • Definition of a transgender person: The revised definition omits the reference to a ‘neither male nor female’ formulation, and covers any person whose gender does not match the gender assigned at birth, as well as trans men, trans women, those with intersex variations, the gender-queer, and those who designate themselves based on socio-cultural identities such as hijra, aravani, kinner and jogta
    • Certificate of identity for a transgender person: Though the District Screening Committee has been dismantled, recognition of a transgender person’s identity is to be decided by the District Magistrate, who will then issue the certificate based on a certain set of prescribed documents. If a person further wants to change their gender to male or female, the Bill enforces the need for a Sex Reassignment Surgery (SRS). Moreover the validity of the SRS would be decided by the District Magistrate.
    • Right of Residence: The bill gives every transgender person the right to reside in their household. It revises separation of transgender persons from their families through court orders, to cover only transgender children.
    • Removed provisions criminalizing begging: Though the Act decriminalizes begging, it introduces a new section that criminalizes ‘compelling or enticing’ a transgender person to indulge in forced labour.

    Overall criticism of the Act

    • The mandatory need to get a SRS violates the NALSA report of 2014 which declared that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one’s gender is illegal.
    • The need for section that criminalizes forced labor is redundant as there already exists The Bonded Labour System (Abolition) Act, 1976 which criminalizes those employing bonded labour, and is applied across persons with no discrimination on gender.
    • The act does not offer reservations for employment and education.
    • The Standing Committee’s concerns about recognizing civil rights in marriage, divorce and adoption among transgenders have not been addressed.
    • The Bill, which is supposed to protect the rights of transgender people, was drafted and passed without approaching anyone from the community. No one from the community was asked about their needs and requirements.

    Suggestions and Conclusion

    Unquestionably The Transgender Protection of Rights Act, 2019 offers a life of dignity and equality by providing basic human rights. It is an iconic but a small step. The Act was to be formulated on the basis of the NALSA report. Instead, it has left more questions unanswered rather than focusing on the concerns. For further integration of this community into our society, the Act needs to undergo several other amendments.

    The Select Committee must critically examine the Act and take into consideration the opinions of the transgender community. Penetration of these laws in the society will take time.