Transgender Persons (Protection of Rights) Bill 2019

Transgender Persons (Protection of Rights) Bill 2019

This article gives a throwback on the transgender persons (protection of rights) bill 2019, why the transgender persons are unhappy because of this bill. This article is authored by Aradhaya Singh, a 1st year law student from Indraprastha Law College, Greater Noida.

Introduction:

The Transgender Persons (Protection of Rights) Bill 2019 was passed by Parliament on 26th November 2019. On 5th August 2019, when the Lower House of Parliament that is the Lok Sabha abrogated Jammu and Kashmir’s special constitutional provision, it also passed with almost no debate ‘ The Transgender Persons (Protection of Rights) Bill, 2019.

The 17th Lok Sabha, the lower House of Parliament whose monsoon session ended on 6th August 2019 passed a record 35 bills, working 281 hours over 37 days. On average, a bill was passed every eight hours, but none was referred to a committee, with critics saying many approved bill had infirmities and required further debate.

What is the Bill all about?:

The Bill was passed after some revisions since it was first placed before parliament in 2016 is meant to prohibit discrimination and make Transgender life more secure and safe. It prohibits discrimination against them in employment, education, housing, healthcare and other services. 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. But transgender representatives and activists called it “ regressive”. They have termed the day it was approved by Lok Sabha as “ Gender Justice Murder Day”.

When was first time the Bill presented?:

The first bill on transgender rights was introduced by the Dravida Munnetra Kazhagam’s Tiruchi Siva in the Rajya Sabha in 2014, was an “ ideal Bill”. The Bill was a private member’s accepted and passed in the upper house in April 2015.

When the Transgender bill was next introduced by the Government in the Lok Sabha on 2nd August 2016 as the Transgender Persons (Protection of Rights) Bill 2016, it was opposed on many counts, including the proposal for “ screening committees” to decide who was a transgender and who was not, and the criminalization of begging mainstay for a majority of transgender Indians.

The Bill must be cleared by the Rajya Sabha, Parliament’s upper house and the President of India to become law.

The representatives of the transgenders said they proposed about 100 amendments, but the Bill that was passed on 17th December 2018 had 27 amendments. It lapsed with the dissolution of the house before general general elections in 2019. Those 27 amendments were in the latest version, which the transgenders organization and union and representatives say annuls the progress ensin a five year old Supreme Court order.

Case laws:

The landmark Supreme Court judgement related to this is that when the supreme court of India in 2014 recognised transgender persons as ‘ third gender’ affirming their fundamental rights under the Constitution of India.

The judgement in a case between the Government of India and the National Legal Services Authority (NALSA) or we can say NALSA vs Union of India case (AIR 2014 SC 1863 at p.1892). It is popularly known as the NALSA case. This judgement gave transgender people the right to “self identification” as male, female or third gender and granted reservations in educational institutions as well as public employment. Transgender has freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. Values of privacy, self identity, autonomy and personal integrity are fundamental rights guaranteed to members of transgender community.

The new transgender bill prohibits discrimination by “ denial” of “ services”, such as education, employment and health care, but omits mention of affirmative action in jobs.
Who are Transgenders?:

The Bill defines a transgender as “ a person whose gender does not match with the gender assigned to that person at birth and includes trans man or trans woman (whether such person has undergone Sex Reassignment Surgery or hormone therapy or other such therapies), person with inter sex variations, gender queer and these persons are popularly identified as kinner, Hijra, aravani and jogta. These terms are used by Indian people for transgender people.

 How our society treats Transgenders?:

 The marginalized status of transgender people was recognized by Justice KS Radhakrishnan, who        said in the NALSA case. In our country India and in the society people often ridicules, abuses and harasses the transgender community. They are mainly called during the birth of a male in a family or when there is a marriage of a male in family to give them warm wishes. In public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals etc they are sidelined and treated as untouchables but people don’t know that they are created by God Almighty. We have to change the mindset of our society towards them.

  What all the Bill contains?:
  • The Bill prohibits the discrimination against a transgender person in relation to (1) education (2) employment (3) healthcare (4) access to or enjoyment of goods, facilities, opportunities available to the public (5) right to movement (6) right to reside, rent, or otherwise occupy property (7) opportunity to hold public or private office (8) access to a government or private establishment in whose care or custody a transgender person is.
  • Every transgender person shall have a right to reside and be included in his household. If the family is unable to take care for them, the person must be sent to a rehabilitation centre.
  • No government or private entity can discriminate against a transgender person in employment matters regarding to recruitment or promotion. Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.
  • Educational institutions funded or recognised by the Government shall provide an excellent education, sports and other facilities to transgender persons without discrimination.
  • Government must takes various measures to provide health facilities to transgender persons which includes: separate HIV surveillance centres, and sex reassignment surgeries. The government shall review medical curriculum to see health issues of transgender persons and provide medical health insurance schemes for them.
  • A transgender person may make an application to the District Magistrate (DM) for certificate of identity, indicating the gender as ‘ transgender’. A revised certificate may only be made if the individual undergoes surgery to change their gender either as a male or a female.
  • The Bill states that relevant government will take measures to ensure the full inclusion and participation of transgender in society. It must also take steps for their rescue and rehabilitation, vocational training and self employment, create various schemes that are transgender sensitive and promote their participation in cultural activities.
  • The Bill recognizes the following offences against these persons. These are: forced or bonded labour, denial or use of public places, removal from household and village, physical, sexual, verbal , emotional or economic abuse. Penalties for all these offences could be 6 months and 2 years and a fine.
  • National Council for Trans
    gender Persons (NCT) also there which will consist of : (1) The Union Minister for social justice (chairperson) ,(2) Minister of State for social justice (vice chairperson), (3) secretary of the Ministry of social justice (4) one representative from ministries including: Health, Home Affairs and HRD. Other members include representatives of the NITI Aayog and the National Human Rights Commission. State governments will also be represented. The Council will also consist of 5 members from transgender community and 5 experts from non- governmental organizations.
  • This Council will advise the central government as well as to monitor the impact of policies, legislation and projects with respect to these persons. It will also address the grievances of these persons.  
Conclusion: 
                                       
 Overall the Bill lacks the how part. Their right to residence, the prohibition of discrimination, inclusive education, livelihood, protection at work place and health care are discussed but how it will happen is missing. The transgender community thinks they are being treated under the Bill as sub humans but they are not.

Transgenders have fought a long battle for centuries for their growth and development for centuries. Finally when they are being heard by the Government of India, it should lead to their overall development. And now it is the time to do something for their growth and development and make them feel that they are also treated equally like other genders in India.

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References:
  • Constitutional law of India- JN Pandey
  • The Hindu
  • The Quint
  • The Times Of India
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