The times are changing, and how.
There have been several attempts in recent past by state institutions to protect the rights of transgenders in India. In 2013, an expert committee was set up by the government to scrutinize the social problems faced by transgenders.
In 2014, Supreme Court recognized transgender persons’ right to self-identification as male, female or the third gender. Courts directed the government to bring legal recognition to transgenders and, enact provisions for their protection against discrimination.
In 2016, the government introduced Transgender Persons (Protection of Rights) Bill (“Bill”) with the objective of providing transgenders the benefits of welfare schemes and, granting them due legal recognition. This bill was later referred to the Standing Committee on Social Justice and Empowerment.
Key Features of the Bill
This Bill is aimed, inter alia, at prohibiting discrimination against transgender persons, giving a certificate of identity, granting them the right of residence, providing opportunities of education, employment, healthcare and other welfare measures of the government.
Key features of the Bill are:
Ø Definition of Transgender persons in the bill: Transgender who is (i) neither wholly female or male; (ii) a combination of female and male; or (iii) neither female nor male. Such a person’s gender does not match the gender assigned at birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.
Ø Prohibition of discrimination: Discrimination in the form of denial of services to transgenders is prohibited. No individual can be discriminated for one’s identity. Any form of biased treatment in the field of education, employment or healthcare is prohibited. A transgender should have the right to move, reside, rent, own or occupy property. Opportunities to hold public or private office shouldn’t be curtailed for the reason of one’s identity.
Ø Employment, education, healthcare and government welfare measures: Originally, this bill mandated establishments with more than 100 employers to designate a complaint officer to look into problems faced by transgender persons. Essential features of this bill include instituting and providing recreational activities without discrimination, providing health facilities including HIV surveillance centres and sex reassignment surgeries, providing medical insurance schemes, ensuring inclusion and participation of transgenders, formulating steps for their rehabilitation and training.
Ø Certification: For obtaining a certificate of identity, a transgender can apply to the District Magistrate who after recommendations of a District Screening Committee can give a certificate of identity. The Committee will comprise: (i) the Chief Medical Officer; (ii) District Social Welfare Officer; (iii) a psychologist or psychiatrist; (iv) a representative of the transgender community; and (v) an officer of the relevant government.
Ø Penalising Provision: Offences of (i) begging, forced or bonded labour (excluding compulsory government service for public purposes); (ii) denial of use of a public place; (iii) denial of residence in household, village, etc.; (iv) physical, sexual, verbal, emotional and economic abuse will attract imprisonment between six months and two years, and a fine.
Ø Composition of NCT: A National Council for transgender persons has been envisaged by this bill. This commission will act as the umbrella body of transgender community. It would comprise Union Ministers, representatives from different ministries and government bodies, members from the transgender community and NGOs.
Critical Analysis of the Bill
The Standing Committee on Social Justice and Empowerment published a report on the provisions of the bill. Multiple issues were identified by the committee.
Ø Definition of Transgenders: The bill is silent on the fact as to whether ‘male’ and ‘female’ refer to biological sex or psychological sense of gender. The latter depends on the way an individual sees oneself. There are no definitions provided to terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in the bill.
Ø Certification: In this process, a transgender person is given a certificate of identity. This identity is of a ‘transgender’. However, Supreme court had recognized the right of self-identification through which transgenders are empowered to determine their self-identified gender as a man, woman or a third gender.
Ø Status under existing statutes: The bill recognizes transgender as ‘a third gender’. But, the bill does not elucidate on the application of laws to these people. On one hand, the bill prescribes a maximum punishment of two years for sexual abuse of transgenders and on the other, IPC prescribes a maximum punishment of life imprisonment for sexual offences against women.
Ø Other Issues: In cases where a transgender, originally possessing a certificate of identification, undergoes a surgery to change his or her gender may wish to re-apply. However, one may feel reluctant to appear before the district screening committee for physical examination.
Ø Other Recommendations: Standing Committee recommended for removing the cap of minimum 100 employees (required for designating a complaint officer). All establishments should have complaint officers with prescribed duties and responsibilities. The committee recommended granting reservations to transgenders under the category of socially and educationally backward classes and also, giving legal recognition to marriage and partnership rights of transgender persons.
Modifications by the current government
Recently, the government made 27 changes to the bill. These include modification of the definition of transgender (as recommended by the committee) and removal of the requirement of a minimum number of employees for an establishment to appoint a complaint officer. A transgender person, originally holding a certificate, may not go to the district screening committee for filing an application once again. Obtaining a certificate from Chief Medical Officer, and subsequent approval from the District Magistrate would satisfy.
However, it is important to note that government did not indulge in the matter of providing recognition to marriage and partnership rights of transgenders and, ignored their inclusion under the category of socially and educationally backward classes. On the apprehension of facing reluctance from the public, government found it safer to stay silent on these matters.
Application of the provisions mentioned in this bill are wide ranging. It would be important to see how these provisions work in the practical life. This bill, in particular, is of great significance to the transgenders. Recognition of their rights is one of the most contentious topics. This is a small step towards a state where there is complete recognition of transgenders’ rights. With the progress of society, the government should strive hard to make instrumental changes in lives of these people.