Transgender Persons (Protection of Rights) Bill, 2016

Transgender Persons (Protection of Rights) Bill, 2016 was introduced in Lok Sabha in August 2016 and currently this bill is pending with the standing committee on social justice and empowerment. In December 2016, this committee has sought a three-month extension for submitting its report on the bill.

Salient Features of the bill

The bill defines a transgender and makes provisions for certain safeguards  against discrimination with India’s 6 lakh transgenders {as per census 2011} in employment, education, property rights and health-care services. It also provides for a jail term of six months to two years for offenders. The salient features of the bill are as follows:

Definition of a transgender person

• As per the bill, a transgender person is one who is – neither wholly male nor female; or a combination of male and female; or neither male nor female.
• The gender assigned to them at birth does not match later on – thus includes trans-men, trans-women, persons with intersex variations and gender-queers.

Prohibition against discrimination

• The bill prohibits discrimination against a transgender person with respect to education, healthcare, access to goods, services, facilities and opportunities available to public; right to movement; right to reside, rent, own or occupy the properties; opportunity to hold public or private office; access to government or private establishments etc.

Right of residence

• The bill provides that a transgender will have right to reside and be included in his household. However, if the family is unable to care, the transgender may find place in a rehabilitation centre or the orders of a competent court.

Employment, Education and Healthcare

• The bill provides that neither a government nor a private entity can discriminate against a transgender in matters of employment, recruitment, promotion etc.
• The private and public bodies which employ more than 100 people are required to designate a complaint officer to deal with the complaints related to this act.
• The government recognized or funded educational institutions are mandated to provide inclusive education, sports and recreational facilities for transgenders.
• The bill asks the government to take steps to provide health facilities to transgenders including separate HIV surveillance centres, sex reassignment surgeries etc. Government will also review the medical curriculum to address the health issues of transgender persons.

Certificate of identity for a transgender person

• The bill provides that a transgender persons can apply to District Magistrate for certificate of identity, which indicates gender as “transgender”.
• District Manager would issue this certificate on the basis of recommendations of a district screening committee which will comprised of Chief Medical Officer, District Social Welfare Officer, a psychologist, a representative of transgender community and an officer of the relevant government.

Welfare measures

• The bill provides that relevant government will take measures to ensure the full inclusion and participation of transgender in society; and it will take measures to ensure rescue and rehabilitation, vocational training and self-employment of the transgenders.
• Government will create schemes that are transgender sensitive and promote their participation in cultural activities.

Offences and Penalties

• The bill makes penal provisions for forcing the transgenders for begging, forced or bonded labour, denial of use of public place, denial of residence or household, physical, verbal, emotional or economic abuse etc.
• The penalties include imprisonment between 6 month to 2 years and fine.

National Council for Transgender persons (NCT)

The government will set up a National Council for Transgender persons (NCT). Its composition will be as follows:

• Union Minister for Social Justice (Chairperson)
• Minister of State for Social Justice (Vice- Chairperson)
• Secretary of the Ministry of Social Justice
• one representative from ministries including Health, Home Affairs, Minority Affairs, Housing and Poverty Alleviation, Human Resources Development, etc.
• Members including representatives of the NITI Aayog, National Human Rights Commission, and National Commission for Women.
• Representatives of State governments.
• Five members from the transgender community
• Five experts from non-governmental organisations.

The function of the council will be to advise the government on formulation and monitoring of policies, legislation and projects with respect to transgender persons.

Thus, the bill is one of the first steps towards a legislation that seeks to recognize that gender assigned to an individual on birth may not necessarily match the gender with which they feel a sense of belongingness. This is highlighted in the fact that the Bill seeks to give right to a transgender person to identify with any of the genders- a man, a woman or as a transgender instead of the category of ‘other’ where they are currently grouped into.

Analysis

To build our opinion, we should analyze the bill in the light of the below questions for your examination.

• How this bill is related to the 2014 NALSA Judgement of Supreme Court?
• We read in newspapers that there were two bills on transgenders. What was the other bill and why was there a tussle on two Bills?
• What are the major criticisms against the current bill?

How this bill is related to the 2014 NALSA Judgement of Supreme Court?

The Bill can be said to be in furtherance of one of the landmark decisions of the Supreme Court in 2014 (NALSA Judgement), wherein it gave recognition to transgenders as a third gender, along with male and female. However, a clarification was issued by the Court in June 2015, holding that the term ‘transgender’ does not refer to gay, lesbian and bisexual persons. So the Bill restricts itself primarily to only the third gender and not to any other category.

We read that there were two bills on transgenders. What was the other bill and why was there a tussle on two Bills?

Surprisingly, there was one more Bill introduced in the Rajya Sabha by one Tiruchi Siva, an MP in 2014 and passed by the Upper House on April 24, 2015. It was a Private Members’ Bill. Although the Bill was in discussion among the parties, there was an unanticipated delay in its discussion. In 2015, the Ministry of Social Justice and Empowerment uploaded a Bill on transgender protection on the website. It was somewhat modified to introduce the current Bill in the Lok Sabha.

What are the major criticisms against the current bill?

The opponents put forward several issues in the bill. One of the biggest drawbacks of the Bill is its half-hearted legislation. In fact, there are various features of the Bill which appear ambiguous prima facie. One such ambiguity is visible in the definition of the term ‘transgender’ in itself. The definition includes several terms like trans-men, trans-women, intersex variations and gender queers. But none of these terms have been clearly defined nor is their reference given somewhere else. This definition is almost a distorted version of the definition proposed in the Private Members’ Bill as well as with the NALSA judgement. Not only this, the Bill also suffers from half-hearted means of implementation. The Bill provides for the right of a transgender to ‘self perceived gender identity.’ But there are no such mechanisms provided for the enforcement of a right. In other words, no corresponding remedy has been provided for this right. The right to self-determination of a transgender has been rightly recognized by the Supreme Court under right to life in Article 21 of the Constitution of India, but the objective means to achieve this has not been focused upon.  The appointment of the District Screening Committee is also against the NALSA judgement which recognized right to self-identity as an inalienable right under Article 21 of the Constitution of India.

Another big challenge to this Bill is its conflicting provisions with other laws. Most of the laws in force  in India like the criminal law and the personal laws mention the genders man and woman and provisions have been made accordingly. So the Transgender Persons Bill is likely to contradict a large number of such provisions. An amendment is required to be made soon in these laws to protect rights of transgenders under these laws too because the Bill if at all it becomes an Act, can still not address all rights of transgenders. There is a requirement of special courts which can deal with the offences against transgenders speedily and effectively.

Another shortcoming in the implementation which the Bill will face is lack of mechanism for representation of the transgenders. For example, as we have a National Commission for Women and for lower castes, a similar type of provision ought to be made here too. This is a necessity taking into consideration the mindset of the society with respect to transgenders. Although the Bill may come into force, it may still not be effective due to lag in the authorities to act for the rights of the transgenders. In such a situation, Commission having majority representation from this group can effectively look into the interests of the transgenders and ensure proper implementation and enforcement of their rights. Further, some provisions of the Bill are also in conflict with the international conventions on transgenders.

Thus, the opponents say that:

• Bill is nothing but a half-hearted start given towards the protection of rights of the transgenders.
• The Government has failed to take into consideration the needs of the community, which is reflected in its non-adoption of various important provisions of the Private Member’s Bill as well as the judgement.

Nevertheless, the Bill has been approved by the Cabinet and has been circulated to all Ministries for their comments on March 23, 2016. It does contain certain provisions for empowerment like creation of a National Council (although not with powers like that of National Commissions) and also seeks to include transgenders born in Scheduled Caste or Schedule Tribe household within the purview of reserved category. Now once the Bill is passed and becomes an Act, can it progress be monitored and changes made.