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A Re-visit to the Bad Press Faced by Transgender Persons Act, 2019

The term transgender as opposed to cisgender has been used to refer to those people whose gender identity is different from that assigned to them at birth. Transgender people have been facing discrimination and oppression since ancient ages. Especially in an orthodox country like India, transgender people have to go through a plethora of disturbing and degrading situations during their lifetime.

Since ages, transgender people in India have been continuously demanding for the codification of their rights. Considering such demands, the Transgender Persons (Protection of Rights) Bill, 2019 was made into an Act. This blog will discuss about the provisions of this act, the criticisms it received from the people of the transgender community, and a few suggestions to overcome such criticisms.

Provisions of The Act
On July 19, 2019, the (then) Union Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot presented the Transgender Persons (Protection of Rights) Bill[1]. The main motive of this bill was the social, economic, and educational empowerment of people belonging to the transgender community. It was passed by the Lok Sabha on 5th of August 2019 and the Rajya Sabha on 26th of November 2019. It has been in effect since 10 January 2020.

The act defines a transgender person as one whose gender does not match the gender assigned at birth. This category included queers, trans men, trans women, hijras, kinnars as well persons with intersex variations.

The Act provides for a National Council for Transgender persons (NCT), consisting of the Union Minister of Social Justice as its chairperson, Minister of State for Social Justice as its Vice-Chairperson, Secretary of the Ministry of Social Justice, one representative from ministries including Health, Home Affairs, and Human Resources Development as main members and representatives of the NITI Aayog and the National Human Rights Commission as other members.

Additionally, the council will have five members from the transgender community and five experts from NGOs working with it. This council works to aid and advice the Central Government and to look after and monitor the impact and effectiveness of the policies, projects, and programs of the central government as made for the welfare of the transgender community. This body also acts as an authority to look after and redress the grievances of the people from the transgender community.

This act prohibits discrimination against a transgender person, like denial of service or unfair treatment concerning education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent, or otherwise occupy the property, opportunity to hold public or private office.

Transgender people have been provided with the right to reside including their own house and in case the family is not able to take care of the transgender, then upon the orders of the competent court, there is a provision for placing them in a rehabilitation center.

The act instructs the government to provide health facilities to transgender persons including separate HIV surveillance centers and especially for the Sex Reassignment Surgeries. The Government has to also provide for comprehensive Medical Insurance schemes.

The Act provides that no public or private entity can discriminate against transgender people in matters related to their employment and also in the matters of promotion and recruitment. Also, Government-funded institutions have to provide extensive educational, recreational and sport-related services to the transgender people.

Upon making an application to the District Magistrate, the concerned person can get a certificate indicating them as transgender and if they go through a sex change surgery, then they can also get a revised certificate indicating their gender as male or female.

The Act provides that whosoever commits the following offenses against the transgender, he/she will be imprisoned for a minimum of 6 months and a maximum of 2 years, along with a fine. These offenses include forced or bonded labor, denial of use of public places, removal from the household and village, physical, sexual, verbal, emotional, or economic abuse.

Why was it Subjected to Protest?
Before getting assented by the president, this Act was subjected to protest and opposition from the people of the LGBTQ+ community, they wanted to halt its approval and enactment as some of the clauses of this act were problematic according to their perspective. According to the LGBTQ+ community, this Bill was passed haphazardly without being much thought being put into the framing of this Bill, which has now become an act.

This Bill is a modified and amended version of the Transgender Bill which was tabled in Lok Sabha in 2016, and the transgender community has protested against too much deviation and modification, which has led to the neglection of various significant demands that were supposed to be prioritized by the 2016 bill [2].

This Act lacks technicality at certain points as evident from the definition of transgender people provided by it, transgender persons have been confused with persons having intersex variations.

The Act failed to incorporate the provision of self-identification of gender by a person without undergoing sex reassignment surgery, as it was laid down in the NALSA v. UOI[3] judgment of 2014.

Another point which subjected the Act to criticism is that there is a provision for imprisonment for crimes against transgenders up to maximum of 2 years, whereas the maximum imprisonment for such offenses against a cisgender people is at maximum of 7 years.

The rights and provisions provided to transgender people under this act are very similar to those which have been provided by the constitution to all the people under article 14, regardless of their gender. Intersex indicates a diversity of gender-based on biological characteristics and transgender are those who have a gender identity different from that assigned to them at the time of birth.

The District Magistrate is not bound to issue the transgender identity certificate upon the application by a concerned person and no further directions have been provided as to reach whom and how in case of refusal by the DM to issue the certificate.[4]

There is a mention of educational and employment-related opportunities but none of them have been elaborated properly. Also, according to the Census 2011, there are more than 4 lakh transgender people in the country yet only 1 crore rupees budget has been assigned by this Act for the formation of all the schemes and policies with regards to transgender people.

On 27 January 2020, the Supreme Court issued a notice to the Central Government in a petition challenging the constitutionality of the Act. The latest update is that on 21st January 2022, the Supreme Court has asked the Center to respond to the plea seeking redressal of the issues raised regarding the constitutionality of this act.

A Few Suggestions
The Bill for the Act should have taken into consideration the views of the transgender community at large in the first instance. Also, there are just 5 members from the transgender community in the NCT which is a very low strength considering that they are welfare-deriving community of this act.

The prohibition of discrimination in employment-related matters is not comprehensive enough as there are no provisions regarding the reservation for the transgender community in matters of employment, thus, there is no security in terms of job reservation and the rich and corrupt people usually take advantage of such situation. There could have been a clause talking about medical leaves as provided to cisgender people in the form of maternity and paternity leaves. Also, a special provision for leave after Sex Reassignment Surgery, after which the patients take around a year to recover, should have been provided.

The Act also does not take into consideration any rules regarding the marriage of the transgender community. The provision for adopting a child by a transperson does not find its place in the Act, which reiterates that the law has been made without understanding the needs and requirements of the community.

There is a lack of gender sensitization in India. People belonging to the transgender community usually have to face disrespect. Also, one in every two transgender people is sexually molested or attacked at some time in their lives. According to certain statistics, transgender survivors may be subjected to up to 66 percent of sexual assaults, which are frequently accompanied by physical attacks or abuse. This suggests that the majority of transgender people are dealing with the aftermath of trauma and the dread of being victimized again.[5]
Tiruchi Siva, the former maker of the 2014's Transgender Bill asked for the formation of a Select Committee for the revision of the terms and provisions of this bill, while it was being debated in the parliament.

Conclusion
The provisions of writs and PILs still prove to be a ray of hope as they can help to amend and widen the ambit of this Act. Many people of the transgender community have come forward with their own demands and have filed PILs in the High Courts and Supreme Courts hoping that their views and demands will be heard and will be merged into the Act.

End-Notes:
  1. Transgender Persons(Protection of Rights) Act, 2019 accessed on 25 March 2022.
  2. Vijayta Lalwani, 'What next for transgender people, as India clears a bill that activists call "murder of gender justice"?' (Quartz India, 27 November 2019) accessed on 25 March 2022.
  3. NALSA v. UOI AIR 2014 SCC 438.
  4. Amrtansh Arora, 'Transgender Persons Bill, 2019: Dehumanising India's third gender with half-baked certification process' (Mirror Now News, 1 December 2019) https://www.timesnownews.com/mirror-now/in-focus/article/transgender-persons-bill-2019-dehumanising-indias-third-gender-with-half-baked-certification-process/521644 accessed on 26 March 2022.
  5. Sexual Assault in Transgender Community' (Office of Justice Programs, June 2014) accessed on 26 NALSA v. UOI march 2022.

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