The Lok Sabha has passed the Transgender Persons Bill (Protection of Rights), 2018 in the winter session of Parliament.
• In 2014, the Supreme Court in National Legal Services Authority versus Union of India case (NALSA judgement) paved the way for the exercise of the rights of transgender along with recognizing them as third category of gender.
• Earlier, it was introduced as private members bill in 2014. But, the government introduced The Transgender Persons (Protection of Rights) Bill, in 2016 and it got passed in Lok Sabha in December 2018.
• According to 2011 census, there are approximately 4,90,000 transgenders living in India.
Features of the Amended Bill:
• New definition: A transgender person is defined as “persons whose gender does not match the gender assigned to them 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”.
• National Council for Transgender (NCT) Persons: It will be set up to advice the central government on policies, and legislation related to transgender persons. It will also monitor and evaluate such policies.
• Eligibility: To avail the rights under this Bill, a person must avail an identity certificate issued by the District screening committee to be set up under Section 6 of the Bill.
• Grievance Redressal Mechanism: It provides a redress mechanism against discrimination and punishment of up to two-year imprisonment for crimes (like forcing for begging) against transgender persons based on the severity of offence.
• Prohibition of Discrimination: The Bill seeks prohibition of discrimination against a transgender person in various sectors such as education, employment, and healthcare.
• 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.
Positives of the Bill:
• The revised Bill defines the term “discrimination” as per the Yogyakarta Principles on International Human Rights Law with regards to sexual orientation and gender identity.
Weaknesses in the Bill:
• No right of Self-Determination: The bill does not have any provision for self determination of gender. The meaning and implication of the term ‘self-perceived gender identity’ is unclear.
• Only One Identity: The Bill also does not allow for recognition of gender identity as male or female. It only allows for an identity certificate as ‘transgender’.
- It goes against the spirit of NALSA judgement in which the Supreme Court laid down that transgender and intersex persons have the constitutional right to self-identify their gender as male, female or transgender even without medical intervention.
- The U.K.’s Gender Recognition Act 2004 was the first law in the world allowing people to change gender without surgery.
- Since then other countries, including Argentina, Ireland and Denmark, have passed laws that allow people to ‘self-declare’ their gender, rather than seek approval from a panel of medical experts.
• No reservation: The Bill is silent on granting reservations to transgender persons. It ignores the Supreme Court directive in 2014 NALSA judgment to extend reservations
in admission in educational institutions and public appointments by treating them as socially and educationally backward classes.
• No civil rights granted: The Bill does not refer to important civil rights like
- Right to marriage, divorce and adoption,
- Right to inherit property
- Right against rape and domestic violence etc.,
• Certain terms in the definition of ‘transgender person’ have not been defined such as terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’.
• The bill must strive towards thrust on integration of transgender in mainstream society, and for this active state support in health, education, skill development and employment is very crucial. Further their identity recognition must go beyond biological expressions.