Khushi Agrawal

Background

The Transgender Persons (Protection of Rights) Bill, was introduced in Lok Sabha on July 19, 2019, by the Minister for Social Justice and Empowerment, Mr Thaawarchand Gehlot. This bill recognises the identity of transgender persons as the third gender and established rules that would prohibit any individual or organisation to discriminate against Transgenders on certain grounds.

This law emphasises how crucial it is to include transgender people and discusses how to make social programmes more accessible to them. It establishes a mechanism for an updated certificate if a person undergoes sex reassignment surgery (SRS) to change their gender. This bill further empowers transgenders in terms of education, health and facility of social security so that they can have better livelihoods in a society where biasness exists against this community.  

Key features

Definition- The definition of a transgender person is described as a person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani and Jogta. It has been made inclusive of men and women, regardless of whether they have received SRS or hormone therapy.

Prohibition against discrimination- Any sort of unfair treatment in educational establishments, Employment opportunities, right to reside, purchase or occupy any property and unfair treatment in holding the public or private property is prohibited. Additionally, it forbids denying transgender people access to services, facilities, privileges, or opportunities that are intended for the general population.

Recognition of Identity of transgender persons- It administers transgender people’s right to self-perceive their identity and established a procedure for applying to the District Magistrate for the issuance of a certificate of identity as a transgender person. Additionally, it established the procedure for changing the gender on a certificate if SRS evidence was shown.

Welfare measures by the government- This bill states that the government should formulate welfare schemes and facilitate their access to Transgender people.

Education- It establishes an obligation on educational institutions to provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination and on an equal basis with others.

Health- This bill initiated the medical care facility like SRS and hormonal therapy with the provision for coverage of medical expenses and the facility of reviewing medical curriculum with research for doctors to address their specific health issues, facilitate regularity in counselling and access of benefits to transgender people.  

National Council for transgender persons (NCT)- In accordance with the law, the NCT must be established in order to direct and advise government authorities on matters such as the auditing of current policies, the formulation of new ones, and the redress of grievances.

Offences and Penalties- The Bill defines the following offences as being committed against transgender people: forced or bonded labour (excluding mandatory government service for public purposes), (ii) denial of access to public areas, (iii) expulsion from the home and village, and (iv) physical, sexual, verbal, emotional, or financial abuse. These offences include fines and prison sentences that range from six months to two years.        

Key concerns

According to this law, transgender people must apply for a “transgender certificate” that will identify them as transgender. The district magistrate, however, has the authority to determine the “correctness” of the application based on the evidence of surgery which could be biased in nature. If they have any surgery after their transgender certificate, an updated certificate is needed, which places a lot of burden on trans persons and entails red tape at bureaucratic levels.

NALSA judgement gave the right to ‘self-perceived’ identity, but this act nullifies it by requiring transpersons to get a certificate from the District Magistrate. 

The bill increases the penalty for mistreating transgender people from a six-month to a two-year prison sentence. But under Indian law, sexual abuse of a cisgender woman or kid is punishable by a life sentence or, in some circumstances, by the death penalty (A cisgender individual is one whose gender identity corresponds to their sex at birth). The concept that trans lives are expendable and of lower worth is reinforced and strengthened by the lighter punishment for crimes committed against transgender persons.

There is a lack of clarity regarding how and what kind of welfare measures and schemes would be implemented by the government, and neither is there a clear state of affirmative action that would be taken up in the education, and employment sector or civil rights related to marriage, adoption etc.   

As soon as this bill was passed, there was an immediate COVID lockdown, which made it difficult for transgenders to discuss the rules, provide adequate feedback, or redress the grievance to any committee, making it harder for transgenders to raise issues and complain if any problems arise. The government was also unable to assess the act’s implementation as a result of the lockdown. 

Impact of this Bill

Since the transgender community must log in to apply for a certificate, there have been issues with them understanding the process itself due to digital gaps and a lack of awareness. In order to increase transgenders’ awareness of the requirements and procedures for applying online, the ministry e-launched a national portal for transgender people that included a thorough presentation and a short film on the portal. The Ministry has taken certain steps to ensure digital literacy among transgenders such as conducting an online training programme and establishing a support team for general and technical issues in case of any assistance is required. 

Due to this, more than 377565 transgenders have visited the portal and 1804 certificates have been issued to the transgender applicant using the portal so far.

State-wise details of the issued certificate are given below (28/07/2021)- 

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The Ministry of Social Justice and Empowerment formulated a scheme “SMILE- Support for Marginalised Individuals for Livelihood and Enterprise”, which focused on rehabilitation, provisions of medical facilities and intervention, counselling, education and skill development. The transgender community benefited from this in terms of healthcare and opportunities for skill development.

Conclusion

It can be deduced that though the colonial heritage acknowledges gender diversity in temple sculptures, myths and religious treatises, transgender people in India still faced intolerance, stigma, discrimination and violence. Human rights violations against transgender people violate families, educational institutions, workplaces, law enforcement agencies, healthcare institutions, the media, and society as a whole. Affirmative action was taken to eliminate stigma and discrimination associated with the community through ‘The Transgender Persons (Protection of Rights) Bill, 2019.’ 

Recommendations

  1. Inform the police about the issues facing the transgender community. In the event of dishonourable comments and harassment, the law will be followed. Make the masses aware of their problems. The impulse of conscience is essential. Local authorities, policy-makers, schools and families need to be further educated on how to accept children with gender differences, treat people of different genders and gender identities equally, and implement policies and plans in a way. “friendly” rather than hostile.
  2. There shouldn’t be any difference in the term of punishments between cisgender women and transgender people. As there is a law of punishment for only six months to two years imprisonment rather than life long penalty displays the lower worth of life of transgender people. 

References

About the Author

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Khushi Agrawal, currently pursuing B.A. (Hons.) in Political Science from Lady Shri Ram College. She is a Research Intern at IMPRI and is passionate about policy research.