UPSC MAINS 2019: Lok Sabha passes transgender rights Bill

Lok Sabha passes transgender rights Bill

 

Topic: Lok Sabha passes transgender rights Bill

 

Topic in Syllabus: GS Paper 2 : Indian Polity

Lok Sabha passes transgender rights Bill

Context:

The Lok Sabha has passed the Transgender Persons (Protection of Rights) Bill, 2016, which seeks to empower the transgender community in the country by providing them a separate identity. The bill which was introduced in the parliament two years ago has been passed with 27 amendments. The primary objective of the Transgender Persons (Protection of Rights) Bill, 2016, is to dene transgenders and prohibit discrimination against the transgender community.

 

More about on news:

  • The Transgender Persons (Protection of Rights) Bill, 2016, seeking to define transgenders and prohibit discrimination against them, was introduced in the Lok Sabha two years ago.
  • It was passed with 27 amendments.
  • The amendments moved by the government, along with some others moved by the opposition members, were considered.
  • Objectives of the Bill include protecting interests of transgenders, defining of the term ‘transgender’, to give them recognition and setting up of a national transgender council.
  • The new definition terms a transgender person as one “whose gender does not match the gender assigned to that person at birth and 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”.
  • Several civil society groups of transgender, intersex, and gender nonconforming individuals have been vocal about their opposition to the Bill, which disregards many of their suggestions as also some of the crucial points raised by the standing committee report of July 2017.
  • This includes the right of transgender persons to self-identification, instead of being certified by a district screening committee.
  • The panel had also pointed out that the Bill is silent on granting reservations to transgender persons.

 

Background:

  • The Supreme Court, in the landmark April 2014 NALSA judgment, had issued a directive “to extend all kinds of reservations in cases of admission in educational institutions and for public appointments” by treating transgender persons as socially and educationally backward classes.
  • They were to be given reservations under the 27 per cent OBC quota, a suggestion that was also endorsed by the National Commission for Backward Classes in its recommendations to the Social Justice Ministry in 2014.
  • In February 2014, the Supreme Court passed a landmark judgement, paving the way for enshrining the rights of transgenders in law.
  • The apex court deemed that individuals had the right to the self-identification of their sexual orientation. It ruled that the fundamental rights granted by the Constitution are equally applicable to transgenders who constitute the ‘third gender’.
  • The judgement also called for affirmative action in education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. The blueprint for transgender rights legislation draws from the court’s directives.
  • The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgenders, as well as transgender rights courts.
  • These remedial measures to prevent sexual discrimination were done away with when the government drafted The Rights of Transgender Persons Bill, 2015.
  • Despite these notable omissions, the skeletal framework of the draft Bill borrowed heavily from its predecessor.
  • After consultation with legal experts and transgender activists, the 2015 draft Bill was sent to the Law Ministry.
  • It was introduced in the Lok Sabha in August 2016 after considerable revision to the 2015 draft.

 

The Transgender Persons (Protection of Rights) Bill, 2016:

Highlights of the Bill:

  • 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.
  • 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.
  • 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.

 

Key Features:

 

Definition of a transgender person:

  • The Bill defines a transgender person as one who is (i) neither wholly female nor male; or (ii) a combination of female and male; or (iii) neither female nor male. In addition, the person’s gender must not match the gender assigned at birth.
  • This will include trans-men, trans-women, persons with intersex variations and gender queers.

 

Certificate of identity for a transgender person:

  • A person recognised as transgender person under the Bill shall have a right to self-perceived gender identity.
  • A transgender person has to obtain a Certificate of Identity which will confer rights and be proof of recognition of identity as a transgender person.
  • An application for obtaining such a Certificate should be made to the District Magistrate (DM).
  • The DM will refer such an application to a District Screening Committee.
  • The District Screening Committee will comprise a: (i) Chief Medical Officer; (ii) District Social Welfare Officer; (iii) psychologist or psychiatrist; (iv) representative of the transgender community; and (v) government officer.
  • The DM will issue a Certificate of Identity as ‘transgender’ based on the recommendation of this Committee.
  • The gender of a transgender person will be recorded in all official documents, on the basis of this Certificate.
  • If there is any change in gender, the transgender person may apply for a revised certificate by following the same process as that of obtaining a Certificate of Identity.

 

Prohibition against discrimination against transgender persons:

  • The Bill prohibits discrimination against a transgender person, including unfair treatment or denial of service in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to public goods and facilities; (v) right to movement; (vi) right to rent or own property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment which has custody of a transgender person.
  • All public and private establishments are prohibited from discriminating against a transgender person in employment matters, including recruitment and promotion.
  • If an establishment has more than 100 persons, a designated person will deal with complaints in relation to the Bill.

 

Benefits related to employment, health and education:

  • The central or state governments shall provide welfare schemes and programmes to facilitate and support livelihood for transgender persons.
  • This will include vocational training and self-employment.
  • The central and state governments shall take steps to provide healthcare facilities to transgender persons including: (i) separate HIV surveillance centers; (ii) sex reassignment surgery and hormonal therapy counselling; (iii) review of medical curriculum; and (iv) a comprehensive insurance scheme.
  • Educational institutions shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons.

 

National Council for Transgender persons:

  • 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 NCT will consist of representatives from (i) ministries such as social justice and empowerment, health, minority affairs; (ii) NITI Aayog; (iii) National Human Rights Commission and National Commission for Women; (iv) state governments; (v) nominated members from the transgender community; and (vi) experts from non-governmental organisations.

 

Offences and Penalties;

  • The Bill specifies the following offences: (i) compelling transgender persons to beg or do 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 or other place of residence; and (iv) physical, sexual, verbal, emotional or economic abuse.
  • These offences will attract imprisonment between six months and two years, and a fine.

 

Key Issues and Analysis

  • The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution.
  • However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
  • The Bill states that a person recognized as ‘transgender’ would have the right to ‘self-perceived’ gender identity.
  • However, it does not provide for the enforcement of such a right. A District Screening Committee would issue a certificate of identity to recognise transgender persons.
  • The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India.
  • The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons.
  • However, these terms have not been defined. Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’.
  • It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.

 

 

Transgender rights in India:

 

Constitutional rights of transgender people:

  • Preamble to the Constitution mandates Justice – social, economic, and political equality of status.
  • Thus the first and foremost right that they are deserving of is the right to equality under Article 14.
  • Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.
  • Article 21 ensures right to privacy and personal dignity to all the citizens.
  • Article 23 prohibits trafficking in human beings as beggars and other similar forms of forced labor and any contravention of these provisions shall be an offence punishable in accordance with law.
  • The Constitution provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion.
  • The Constitution also guarantees political rights and other benefits to every citizen. But the third community (transgenders) continues to be ostracized.
  • The Constitution affirms equality in all spheres but the moot question is whether it is being applied.
  • As per the Constitution most of the protections under the Fundamental Rights Chapter are available to all persons with some rights being restricted to only citizens.
  • Beyond this categorization the Constitution makes no further distinction among rights holders.
  • But official identity papers provide civil personhood. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity is a crucial and unavoidable category.
  • Identification on the basis of sex within male and female is a crucial component of civil identity as required by-the Indian state.
  • The Indian state’s policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex (if a hijra wants it), has deprived them at a stroke of several rights that Indian citizens take for granted.
  • These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.

 

Problems faced by transgender:

  • The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, and lack of medical facilities: like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, penectomy, and problems related to marriage and adoption.
  • In 1994, transgender persons got the voting right but the task of issuing them voter identity cards got caught up in the male or female question. Several of them were denied cards with sexual category of their choice.
  • The other fields where this community feels neglected are inheritance of property or adoption of a child. They are often pushed to the periphery as a social outcaste and many may end up begging and dancing. This is by all means human trafficking. Sometimes running out of all options to feed themselves, they even engage themselves as sex workers for survival.
  • Transgenders have very limited employment opportunities. Transgenders have no access to bathrooms/toilets and public spaces. The lack of access to bathrooms and public spaces access is illustrative of discrimination faced by transgenders in availing each facilities and amenities. They face similar problems in prisons, hospitals and schools.
  • Most families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling from behaving or dressing-up like a girl or woman.. A 2007 study documented that in the past one year, the percentage of those MSM and Hijras who reported: forced sex is 46%; physical abuse is 44%; verbal abuse is 56%; blackmail for money is 31%; and threat to life is 24%.
  • Hijras face discrimination even in the healthcare settings. Types of discrimination reported by Hijras/TG communities in the healthcare settings include: deliberate use of male pronouns in addressing Hijras registering them as ‘males’ and admitting them in male wards humiliation faced in having to stand in the male queue; verbal harassment by the hospital staff and copatients and lack of healthcare providers who are sensitive to and trained on providing treatment/care to transgender people and even denial of medical services. Discrimination could be due to transgender status, sex work status or HIV status or a combination of these.
  • Social welfare departments provide a variety of social welfare schemes for socially and economically disadvantaged groups. However, so far, no specific schemes are available for Hijras except some rare cases of providing land for Aravanis in Tamil Nadu.

 

Reforms needed to improve situation:

 

Legal Measures:

  • Every person must have the right to decide their gender expression and identity, including transsexuals, transgenders, transvestites, and hijras. They should also have the right to freely express their gender identity. This includes the demand for hijras to be considered female as well as a third sex.
  • There should be a special legal protection against this form of discrimination inflicted by both state and civil society which is very akin to the offence of practicing untouchability.
  • The Immoral Trafficking Prevention Act, 1956, as has been pointed out earlier, is used less for preventing trafficking than for intimidating those who are the most vulnerable i.e., the individual sex worker as opposed to brothel keepers or pimps. This law needs to be reformed with a clear understanding of how the state is to deal with those engaged in sex work.
  • Civil rights under law such as the right to get a passport, ration card, make a will, inherit property and adopt children must be available to all regardless of change in gender / sex identities.

 

Police Reforms:

  • The police administration should appoint a standing committee comprising Station House Officers and human rights and social activists to promptly investigate reports of gross abuses by the police against kothis and hijras in public areas and police stations, and the guilty policeman be immediately punished.
  • The police administration should adopt transparency in their dealings with hijras and kothis; make available all information relating to procedures and penalties used in detaining kothis and hijras in public places.
  • Protection and safety should be ensured for hijras and kothis to prevent rape in police custody and in jail. Hijras should not be sent into male cells with other men in order to prevent harassment, abuse, and rape.
  • The police at all levels should undergo sensitization workshops by human rights groups/queer groups in order to break down their social prejudices and to train them to accord hijras and kothis the same courteous and humane treatment as they should towards the general public.

 

Other Measures

  • A comprehensive sex-education program should be included as part of the school curricula that alters the heterosexist bias in education and provides judgement-free information and fosters a liberal outlook with regard to matters of sexuality, including orientation, identity and behavior of all sexualities. Vocational training centers should be established for giving the transgender new occupational opportunities.
  • The Press Council of India and other watchdog institutions of various popular media (including film, video and TV) should issue guidelines to ensure sensitive and respectful treatment of these issues.

 

Sample Question:

The apex court deemed that individuals had the right to the self-identification of their sexual orientation but recently passed transgender rights Bill unable to fulfill the apex court verdict. So critically examine the the recently transgender rights Bill?