Transgenders in India

WHY IN NEWS?

The Social Justice Ministry issued a notification of the Transgender Persons (Protection of Rights) Act, 2019, which was passed by Parliament on November and given Presidential assent on December, 2019.

WHO ARE TRANSGENDERS?

According to World Health Organization, Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth

HISTORY OF TRANSGENDERS IN INDIA

• Transgender people or Kinnars have been a part of Indian society since ancient times. They find mention in the Hindu and Jain mythologies (Ardhanareeshwara), in epics such as Mahabharata (Shikhandi) and among art forms such as the Khajuraho Group of Monuments.
• During the British era, transgender people were placed under the purview of the Criminal Tribes Act 1871. They were subjected to strict monitoring and compulsory registration until 1952 when their mention in the Act was denotified.
• According to the 2011 census, there were close to 4.88 lakh transgender people living across India. Uttar Pradesh accounts for the largest share of their population followed by Andhra Pradesh, Maharashtra and Bihar. Despite their significant population, they are arguably the most marginalized section of people in India.

CHALLENGES FACED BY TRANSGENDER COMMUNITY:

So far, transgender communities have been omitted from effectively participating in social as well as cultural life, politics, economy and decision-making processes. This has resulted in multifold of challenges such as:

• Lack of identity: Till recently, transgender was not considered a third gender. Hence many of them were denied identification documents like electoral IDs and address proofs. Without identification, one cannot travel, register for school or access many services that are essential to function in society
• Discrimination, exploitation and poverty: They are subjected to severe discriminations, denial of property rights and an overall apathy towards issues such as their education, accommodation, health and employment. This results in severe levels of poverty among the community, which further aggravates exploitations such as forced labour and sex trafficking.
• Harassment, stigma and violence: They are met with ridicule from a society and are considered mentally ill, socially deviant and sexually predatory. They are forced for gender conformism, aversion based pseudo-psychotherapies, forced marriages, physical and verbal abuse. 
• Limited employment opportunities and accommodative infrastructure: Due to low literacy rate the proportion of working group is below 45 % as a main worker as whereas, other are engaged in prostitution as a means of survivals. Transgenders have no access to bathrooms/toilets and public spaces.
• Barriers to healthcare: The present health care system does not cater to the specific needs of the transgender people. This has resulted in a host of issues like high levels of HIV, substance abuse, depression and other psychological issues.

INTERNATIONAL NORMS (related to transgenders)

• UN Declaration of human rights, 1948 opening lines: 'All human beings are born free and equal in dignity and rights'
• UN Human Rights Council adopted a wide ranging resolution on human rights, sexual orientation & gender identity: expresses grave concern at violence & discrimination against individuals based on their sexual orientation and gender identity

MEASURES FOR TRANSGENDERS IN INDIA:

• The NALSA Judgement: In 2014, the Supreme Court passed a judgement in National Legal Services Authority v. Union of India. In this landmark ruling, also known as the NALSA Judgement, Justice K.S Radhakrishnan observed that “recognition of transgender as a third gender is not a social or medical issue, but a human rights issue”. The Judgement:
  • Declared transgender people to be a 'third gender'. All important identity documents such as birth certificate, passport and driving license would recognise the third gender.
  • Affirmed that the fundamental rights granted under the Constitution will be equally applicable to transgender people
  • Gave them the right to self-identification of their gender as male, female or third-gender.
  • Required the Centre and States to take steps to treat them as socially and educationally backward classes and extend reservation for admission in educational institutions and for public appointments.
• Following this judgement, The Rights of Transgender Persons Bill, 2014, was introduced as a private member’s Bill by the Dravida Munnetra Kazhagam MP Tiruchi Siva. MPs across party lines discussed the bill in detail and rallied for its passage, leading to the RS passing a private member’s bill for the first time in the last 46 years.
• However, before this bill was taken for debate in Lok Sabha, Ministry of Social Justice and Empowerment uploaded the Transgender Persons (Protection of Rights) Bill, 2016 bill with diluted provisions on its website. 
• In a landmark Judgment on Right to Privacy, the Supreme Court said the rights of LGBT population are "real rights founded on sound constitutional doctrine". Further, On 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional. 
• Following the judgement, the 2016 bill was reworked and introduced as Transgender Persons (Protection of Rights) Bill, 2019.. The Bill was passed in the Lok Sabha on August 5, 2019 the Rajya Sabha cleared it on November 26. However it has been severely criticized from numerous corners.

FEATURES OF  TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019:

• Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.  It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities such as Kinnar and Hijra.
• Self perception: The Bill allows self perception of gender identity. But it mandates that each person would have to be recognised as ‘transgender’ on the basis of a certificate of identity issued by a district magistrate. The District Magistrate will issue the certificate based on the District Screening Committee. The committee will comprise of a Chief Medical Officer, District Social Welfare Officer, Psychologist or Psychiatrist, and a representative of transgender community.
• Prohibition against discrimination: The Bill prohibits the discrimination against a transgender person, in matters of education, employment, healthcare, access to public services and establishments
• National Council for Transgender persons (NCT): The bill mandates the creation of a National Commission for Transgender persons, to be chaired Union Minister for Social Justice. It will include representatives from ministries of Health, Home Affairs, and Human Resources Development, NITI Aayog, the National Human Rights Commission, State governments, transgender community and experts from non-governmental organisations. The Council will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons.
• Right of residence: Every transgender person shall have a right to reside and be included in his household.  No transgender person shall be separated from parents or immediate family on the ground of being a transgender. If the family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
• Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres and sex reassignment surgeries.  The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them. 
• Welfare measures by the government: The Bill states that the government will take measures to ensure the full inclusion and participation of transgender persons in society.  It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities. 
• Offences and penalties: The Bill recognizes several offences against transgender persons, such as forced or bonded labour, abuse, removal from household/village and denial of use of public places. The penalties for these offences vary between six months and two years, along with a fine.

CONCERNS:

• Narrow definition of transgender: The bill gives a degrading and scientifically incorrect definition of transgender. It refers to intersex and transgender interchangeably, despite the inherent differences. This is in contravention to the definition of transgender provided by the Supreme Court’s NALSA judgement, the private member’s bill and the Union government’s own expert committee on transgender persons
• No provision for self identification:
  • According to the Bill, a transgender person must apply for a certificate of identity indicating their gender as “transgender”. This in direct violation of NALSA judgement, which affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery
  • The new procedure will subject transgender persons to intrusive medical scrutiny. Also there is no room for redress in case an appeal for such a certificate is rejected
• No equal protection of law:
  • The punishment for any kind of violence against trans-people, be it sexual violence or endangering their life, is an imprisonment of a maximum of 2 years. This is in contrast with the IPC where severity of punishment varies with each crime. Eg: If transgender people are sexually attacked, their attackers face a maximum jail term of two years-against a minimum of seven years if women are attacked.
  • The Bill fails to extend protection to transgender persons who might face sexual abuse because the Indian Penal Code recognises rape in strict terms of men being perpetrators and women being victims.
  • It does not address or penalize surgeries on infants born with intersex variations with the intention of “correcting” their bodies to fit the binary gender
  • It is silent on the count of police violence against the community, which serves as an important reason why the community is relegated to the margins in India.
• No mention of specific civil rights and liberties:
  • It is silent on reservations for employment and education, which was directed by the Supreme Court and provided for under the private member’s bill.
  • While the Bill seeks to prohibit discrimination, it does not explicitly define what constitutes as discrimination. Also, it makes no mention of an enforcing authority or of remedial measures such as compensations to victims.
  • It avoids discussing pertinent issues including the right to marriage, inheritance, adoption, social security and pension among others
• Treats transgender as victims rather than an empowered subject with rights:
  • Moving out of the family has been the need of a large number of trans-persons, due to the discrimination and violence they face from their family and surrounding community.
  • But now, If young trans-persons want to leave home, they can no longer join the trans community. They must go instead to a court, which will send them to a “rehabilitation centre”. The freedom to move and have a chosen family has been effectively restricted through the right to residence clause.
• Dilution of provisions from Private member’s bills:
  • Among others, the private member’s bill had provisions for the setting up of National and State Transgender Welfare Commissions. However no such mention is found the present bill.
  • The National Council for Transgender Persons which the government’s bill envisions would be a massive bureaucratic structure with 30 members. However it is without enforcement abilities, rendering it powerless to be a protector of rights.

WAY FORWARD:

• Transgender people have faced discrimination for years, and it is dehumanizing for them to be denied their dignity, personhood and, above all, their basic human rights. The Bill in its present form continues to push them into obscurity by failing to secure for them their constitutional rights.
• The unfairness with which history has dealt its hand would only be corrected through an active effort of the state, to recreate a discourse, the primary requirement being consultations with the community. Thus the government must hold consultations with all the major stakeholders and rework the bill.
• Reworking can begin by renaming the bill itself. Critics have suggested that the title should be a comprehensive “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”. It should also introduce the distinction between transgender and intersex persons.
• Also, the Bill must recognise that gender identity must go beyond biological; gender identity is an individual’s deep and personal experience. In this regard, India can look at experiences of Ireland, Argentina and Colombia where self-determination of gender is possible without undergoing medical treatment or sterilization.
• Provision of free legal aid, supportive education, and social entitlement must be ensured for the Transgender community at ground level as suggested by NALSA Judgement.
• Separate policies related to health care must be framed and communicated in all private and public hospitals and clinics. International best practices
• Encourage Transgender budgeting by union and state governments
• The government could relook at introducing the private member’s bill of 2014 in the Lok Sabha, as it was praised as "an ideal bill" in conformity with the National Legal Services Authority (NALSA) judgement.

Practice Question

Q. While the Transgender Persons (Protection of Rights) Act is a start, there's a long way to go in ensuring justice and well being of the transgender community. Discuss?