Editor- Simrann Vashist
In India, Transgender community includes kinnars/hijras, jogappas, Sakhi, Aradhis, Jogas, etc., who fall under the oppressed parts of the society and face legal, economic, and social difficulties. The Hijras are the eunuchs or the intersex individuals who were recognized by the Supreme Court of India in 2014. Transgender is part of the LGBTQ community, (Lesbian, Gay, Bisexual, Transgender, Queer) which falls under the third gender. Transgenderism has been a part of the society from the very beginning, it has been granted a name and status in modern times. The term “Hijra” is used in a very degrading context, and these people live in a community with exceptionally low status. On 1st April 2014, In the case of National Services Authority (NALSA) v Union of India, the Supreme Court ruled and recognized the rights of the Transgender people in India where a range of steps had been laid down in the judgment to safeguard the rights of the Trans communities. Rajesh Talwar, an Indian Lawyer, has written a book on the human rights violations suffered by the Trans community called “The Third Sex and Human Rights”.
The Transgender Persons (Protection of Rights) Act, 2019, was enacted by the parliament on 26th November 2019. Rajya Sabha passed the bill by ballot. The Act introduces a Trans person as someone whose identity does not adhere to that assigned at birth. The Act forbids discrimination against the Trans persons in the areas of education, jobs, education, housing, and other services. It aims to establish a mechanism for the social, educational, and economic advancement of the Trans people in India.
What does the Bill include?
Prohibition against discrimination:
Discrimination against a transgender person, including denial of service or unequal treatment about jobs, healthcare, the enjoyment of goods, education, the freedom to travel, right to live or occupy the land, the possibility of holding public or private positions, and access to a government or private institutions.
Recognition of identity:
A transgender person must submit an application to the District Magistrate for the grant of an Identity Certificate, indicating their gender as “Transgender”. The certificate will only be issued if the person is undergoing surgery to change their gender either as a female or a male.
Timely prosecution of individuals is prescribed under the act against the Trans community and the penalties therein by the government. Offenses include denial or obstruction of the right of a trans individual to travel to a public location, mental, physical, verbal, sexual or economic abuse, harm to life, bonded or forced labor, forced to leave the household, etc. Causing injury to a Transgender person, including physical and sexual harassment is subject to a sentence of 6 months which can extend up to 2 years or a fine.
Formulation and execution of welfare measures, policies, programs for education, social security, healthcare, effective participation in the society, and promoting access to such policies and welfare measures by appropriate state governments.
National council for transgender persons:
It provides for a council to advise the government on the development of community policy and to monitor the execution and settlement of grievances. It also provides that the court can put a transgender person in a recovery facility if they cannot be taken care of by their families. The programs to be offered by the Bill were not specific to whether they would be free or funded by the government.
Committees on Education:
All educational establishments must have a committee where Trans people can contact them in the event of abuse or prejudice. Adequate steps must be taken by the government to prevent discrimination in any private or government agency, including schooling, healthcare, jobs, sports, leisure, public transport, entertainment, etc.
Problematic Elements of the Bill:
The Bill has been widely criticized by students, attorneys, activists, and Trans People. Protests have taken place in different cities in India where the provisions of the Bill have been called in defiance of the judgments of the Supreme Courts in NALSA v UOI. Some Trans people refer to the Day of passing of the Bill as a “Black Day” or as “Gender Justice Murder Day”.
The right to identify an individual before the law is assured by various International Conventions on Human Rights and is a central part of the affirmation of the dignity and value of each individual. The government has been attacked by the media and activists for describing Trans people as neither exclusively female nor wholly male. One of the biggest issues with the bill is that it does not accept the right to declare one’s gender. It only allows for a certificate to identify the person as a transgender until they undergo sex reassignment surgery and apply for another certificate and undergo an intrusive medical examination. Therefore, to be officially recognized, a Trans person one must apply to the government for proof of a gender confirmation procedure.
This is against the right to self-determination, and no redress is offered if the certificate is refused. Before the Bill, any Trans person could simply go and file an affidavit claiming their gender, whereas the Act made the entire thing complicated and contradictory to the interests of the Trans community and the rule passed in 2019. This Act is in gross violation of NALSA, which has confirmed the right to self-determine genders as male or female or Trans, without confirmation from any medical certificate or surgery. The Bill also fails to protect civil rights such as social security, marriage, adoption and does not call for any quotas for work and public education thus depriving them of their basic rights and the statutory protection given to them by the Supreme Court.
Moreover, abusing a Trans person is a punishable crime with a prison sentence of 6 months which can extend up to 2 years. But under India’s rule, the penalty for rape is 7 years imprisonment which may be as serious as life imprisonment or death in rare circumstances. It does not describe actions that constitute sexual offences, rendering it more difficult for a Transsexual person to disclose those offences. Less punishment for violence against the Trans people reiterates and promotes the belief that trans lives are dispensable and of lower importance. We, therefore, see that fines are added for sexual harassment and lighter offences, but there is no provision for comprehensive punishments for crimes such as rape against a trans person, thus undermining their human rights and the right to equality.
As a result of these problems, the Trans community also faces stigma and exclusion in jobs and education. They have also been met with a lot of public abuse and police brutality. Because of their exclusion, they have no alternative but to work as prostitutes or to participate in sex rackets, which has made the HIV population in the Trans community 26 times higher than the national average.
The Bill violates the interests of the same people it wants to defend. It is intended to be the only statute that respects the rights of the Trans people. Parents are worried that their child will not be accepted into the society and so they are shunned by their families because of shame. The government has bypassed the NALSA decision and has not considered the human rights, physical autonomy, and dignity of the Transgender community by subjecting them to medical, psychological, and public scrutiny. The decision of the Supreme Court to strike down Section 377 of the IPC offers promising proof of the state's approach to the acknowledgement of diverse relationships and families.
The Transgender Persons Act (2019), must guarantee equal social, civil, and economic rights as well as protection from violence and prejudice to safeguard the interests of the group. The government should contact the Trans group for recommendations as it would be easy for them to make rules. The public consultation process should be more inclusive, and enough time should be taken to discuss the laws on these matters.
1.WP (Civil) No 400 of 2012
The Author Tasneem is a B.A.LLB (Hons) student at the GH Raisoni Law School, Nagpur.
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