Transgender Persons Bill: A non-satisfactory move by the Indian Government

Transgender Persons Bill: A non-satisfactory move by the Indian Government

Law | Jan 4, 2019 / by Kunal Kashyap
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The combat between transgenders and a conservative society has reached a non-satisfactory conclusion with the ‘Transgender Persons Bill’, which was passed in Lok Sabha on December 17, 2018. The Bill seeks to recognize transgender persons, and confer anti-discriminatory rights and entitlements related to education, employment, health, and welfare measures. The bill also pursues to supply an appropriate definition of transgenders. It also advocates extending civil rights enjoyed by citizens, such as marriage, divorce, and adoption, to encompass the third gender.

The transgenders are not pleased with the amendments introduced by the house. The house delighted the community in a recent landmark judgement, which lifted a colonial-era ban on gay sex by decriminalising the Section 377 of the India Penal Code. Section 377 refers to 'unnatural offences' and says whoever voluntarily has intercourse against the order of nature with any man or woman, shall be punished. After this verdict in the favour of the transgenders, the house saddened the transgenders with the ‘Transgender Persons Bill’.

India holds a long span of history of mistreating and disregarding transgenders. The conservative mindset of society is not favourable for the community to live with dignity and pride. Their uncommon gender condition is regarded as an abnormality by the social order, which makes them feel alienated. The society is reluctant to accept them as a member of their society. The healthcare system is less than satisfactory for transgenders, as it is not equipped to meet the basic psychological needs of transgender persons. Transgenders suffer from social and economic backwardness in the society, which disable them to live with dignity. Availability of comparatively fewer opportunities to earn a regular income, further degrade their status in the society.

A Standing Parliamentary Committee was set up to critically analyse the proposed bill and lay down its recommendations. The Committee stated that, regardless of Supreme Court’s direction to the government in 2014, the Bill was silent on granting reservations to transgender persons, under the category of socially and educationally backward classes, for admission in educational institutions and for public appointments. The committee recommended that there should be separate HIV surveillance Centres operated by Centre and State Governments since transgenders face several sexual health issues.

Considering the recently passed bill, a transgender person must obtain a certificate of identity as proof of recognition of their identity as a transgender person, as mentioned in Chapter III Section 5, to invoke the rights under the Bill. Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee. The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person. Such provision does not allow trans to hold their self-identified gender and put them on display in front of a screening committee. Such procedure will embarrass them and leave them in humiliation. The provision added another hurdle in the process of providing a dignified life to the transgenders. It enormously violates their right to live with dignity which comes under Article 21 of Indian Constitution (Right to Life). There are minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-can deprive a citizen of the enjoyment of this dignity.

It is a well-known fact that transgender persons are treated as socially and economically backward, which is also a criterion for providing reservation in government jobs in India. Irrespective of their backward state and recommendation of the parliamentary committee, the bill does not extend any reservation to them.

According to the Chapter II Section, 3 of the bill, discrimination against a transgender person in areas such as education, employment, and healthcare is prohibited. The bill barred unfair treatment regarding the right to reside, purchase, rent, or to occupy any property. The denial or unfair treatment in the opportunity to stand for or hold public or private office is strictly prohibited.

It directs the central and state governments to provide welfare schemes in these areas. According to the Chapter VII of the bill, a National Council for Transgender (NCT) persons will be set up to advise the central government on policies, and legislation related to transgender persons. It will also monitor and evaluate such policies.

The Bill specifies the offences like denial of use of a public place, denial of residence in the household, village or other places of residence and physical, sexual, verbal, emotional or economic abuse. These offences will attract imprisonment between six months and two years, and a significant amount of fine, as stated in Chapter VIII Section 19 (d).

The government curtailed the only means of transgenders to sustain themselves, by criminalizing begging without providing them with an alternative livelihood. It is true that begging should not be promoted as a means to livelihood as it does not allow a person to live with dignity. However, in India begging is the only way to sustain life for most of the transgenders as there are very few companies which are willing to hire a transgender employee. According to the census 2011, 46% of 4.9 lakh transgenders are literate in the country, which further deprives them of earning opportunities. Instead of banning begging in the first place, the government should produce alternative opportunities to earn income which is required to led life with dignity.

In the pursuit of a conducive environment for transgenders, there should be the provision of separate toilets for them. Trans people go through a lot of embarrassment in public places like parks, theatres, malls etc. There must be separate restroom facilities for the trans people in the required places to make their experiences more comforting.   

Transgenders suffer from ferocity and cruelty from the other members of the society. Several incidents of rapes with trans people make their way in the news headlines. They go through a lot of discrimination on various platforms of their life. Therefore, special counselling services must be provided to trans persons to cope up with trauma and violence they go through in their life

There are very few career opportunities for transgender persons. Essential career guidance must be provided to them which will help them to earn a decent income, which is required to live with pride. The government must pay heed to civil rights like marriage, divorce and adoption which are critical to transgender persons’ lives. To provide their civil rights more concreteness, they must be legally recognized by the state.

Moreover, there should be severe punishments for any offence against transgenders. The bill has the provision of imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine, for any sexual assault against trans person, according to Chapter VIII Section 19(b).  Punishments must be made more severe and intense. There was no term like ‘rape’ previously in the bill, acts were mentioned as ‘physical abuse’ and ‘sexual abuse’, punishments for which range from six months to two years in the country.

The continuous efforts of the government are not enough to uplift the social and economic status of transgender persons. The mindset of the people, being the root cause of the problem, must be changed in favour of trans persons. There should be social alertness about the miserable conditions of them. Recommendations by the parliamentary committee must be implemented to make a more favourable environment for the transgenders. People must be made aware of the circumstances of the trans persons to develop a sense of familiarity between society and transgenders. The procedure of identification through screening committee must be simplified for the ease of the trans people. The government should work forward to make the transgenders self-reliant to lead their lives in a dignified way. 

 

References-

PRS Legislative Research (n.d.). The Transgender Persons (Protection of Rights) Bill, 2016. Retrieved from: https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2016

Changoiwala, P (2018). South China Morning Post. INDIA: NO COUNTRY FOR TRANSGENDER WOMEN.  Retrieved from: https://www.scmp.com/week-asia/society/article/2154077/india-no-country-transgender-women

The Economic Times (2018, Sep 7). Section 377: Here is everything you need to know. Retrieved from: //economictimes.indiatimes.com/articleshow/65698429.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Times of India (2018, 17 Dec). Transgender community protests against bill passed in Lok Sabha. Retrieved from:http://timesofindia.indiatimes.com/articleshow/67262344.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

(Nair, S and Tiwari, D 2018). The Indian Express. Lok Sabha passes Transgender Persons Bill with 27 change. Retrieved from: https://indianexpress.com/article/india/parliament-winter-session-lok-sabha-passes-transgender-bill-5497844/

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016. Bill No. 210 of 2016. Government of India (2018)

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Written By Kunal Kashyap

My name is Kunal Kashyap and basically i am from Jaipur. I am pursuing my graduation from Ramjas College of University of Delhi.

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