Tuesday, December 03, 2019

Transgender Persons (Protection of Rights) Bill, 2019

Image source: The Hindu Businessline

Gazi Hassan

Tansgender is defined as a person whose gender does not match with the gender assigned to that person at the time of his/her birth. Tansgender includes trans man or trans woman, a person with intersex variations, queer and a person having known by identities such as kinner, hijra and aravani.

Transgenders have been living in India since time immemorial and exist in the Indian historical records since the 9th century BC. They have held prominent positions in the society like political advisors to King and administrators. However, their status started degrading when the British government, after the fall of the Mughal Empire, passed Criminal Tribes Act in 1871 which targeted them. Although after the independence of India the Act was repealed, the damage it had caused is still visible.

History of the Bill
The first version of Transgender Rights Bill was introduced in August, 2016. The Bill defined transgender individuals as “neither wholly female nor male”. It criminalised begging, which forms a part of their culture in South Asia and is a mean of survival to the vast majority of transgender people. The Bill also required a certificate as a proof of identity of a transgender person to be issued by the District Magistrate on the recommendation of a Screening Committee. The members of the Screening Committee comprised of a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official and a transgender person. This led to massive public outcry and protests. After this, the Bill was sent to a Standing Committee which submitted its report in July 2017 with various recommendations.

The Lok Sabha tabled and passed a newer version of the Bill in December 2018. The criminalisation of begging was retained affecting the community who engage in begging for livelihood. The clauses where the District Magistrate was authorised to issue transgender certificates, lesser punishment for crimes against transgender persons and the absence of provisions on reservations for transgender persons were retained. These were contradictory to the judicial mandate of the Supreme Court in 2014 in NALSA v. UOI, thus violating right to equality and other fundamental rights of transgender persons. The members of the opposition parties in the Rajya Sabha stalled the Bill.

The final draft of Transgender Persons (Protection of Rights) Bill, 2019 was passed in the Lok Sabha on August 5, 2019. The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education (ii) employment (iii) healthcare (iv) access to, or enjoyment of goods, facilities, opportunities available to the public (v) right to movement (vi) right to reside, rent, or otherwise occupy property (vii) opportunity to hold public or private office and (viii) access to a government or private establishment in whose care or custody a transgender person is.

Why the Bill is Not Acceptable?
The Bill became controversial in many aspects. People opposing the Bill see it inappropriate to include the intersex community in the definition of transgender as all intersex people do not identify themselves as trans people. The requirement of the court order to decide whether a trans child will live with the biological family or the community family (gharana) is also seen as a blatant human rights violation. Also, the provision of penalty for rape of a trans person is just 6 months to 2 years, whereas it is life imprisonment in case of rape of a woman. Endangering the life of transgender is punishable by a maximum of only 2 years in prison.

Although the Bill discusses right to residence, prohibition of discrimination, inclusive education, livelihood, protection at the workplace and healthcare, it lacks information on how it will ensure all these. The Rajya Sabha has passed the Bill on November 26, 2019 without making suggested revisions. The issues of not excluding intersex people from the definition of trans person, doing away with the medical screening for identification, taking the punishment at par with other genders for crimes against transgenders, etc. will not lead to the intended social, economic and educational empowerment of the community.

Gazi Hassan is Senior Research Associate at CPPR-Centre for Strategic Studies. Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.