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Content

• Main Provisions
• Analysis

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Main Provisions

Definition of Transgenders:

• A person whose gender doesn’t match the gender assigned at birth. It includes trans-men and trans-women, persons with inter-sex variations, gender queers, and persons with social cultural identities such as Kinnar and Hijra.
•  Intersex variations is defined to mean a person who at birth shows variations in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.

ii. Prohibition Against Discrimination: The act prohibits the discrimination against a transgender person, including denial of services or unfair treatment in relation to, Education, Health, Employment, access to or enjoyment of goods, facilities, opportunities available to public; Right to movement Right to reside, rent, own or otherwise occupy property, Opportunity to hold public or private office;

iii. Every transgender person shall have right to reside and be included in the household.

•  If the immediate family is unable to care for transgender persons, the person may be placed in a rehabilitation centre, on the orders of a competent court.

iv. Health Care:

• The government must take steps to provide health facilities to transgender person including separate HIV surveillance center, sex reassignment surgeries, etc.
• The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance scheme for them.

v. Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate may be obtained only if individual undergoes surgery to change their gender either to male or a female.
vi. Welfare measures by government

• The act directs central and state governments to take measures to ensure the full
  participation of transgender persons in society.
• Government must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes which are transgender sensitive, and promote participation in cultural activities.

vii. Offences and penalties: -> Forced labour; denial of public space; removal from household, village; physical, sexual, verbal abuse etc.; These offences will attract imprisonment between six months and two years, and a fine.

viii. National Council for Transgenders persons (NCT)

• The National Council of Transgender persons will consist of
  1. Union Minister for Social Justice (Chairperson)
  2. Minister of State for Social Justice (Vice-Chairperson)
  3. Secretary of Ministry of Social Justice
  4. One representative from ministries including health, home affairs and human
  resource development
  5. Representatives from other ministries, NITI Aayog and the NHRC.
  6. Five members from transgender community and five experts from NGOs.
• The council will advise the central government on the formulation and monitoring or
  policies, legislation and projects with respect to trans gender person.

Analysis

• Positives
  • The act is in spirit with International Conventions, particularly the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966, and the Yogyakarta Principles 2006.
  • It recognizes gender identity as non-binary. Through this act the government has evolved a mechanism for social, economic and educational empowerment of the transgenders.
  • The act will benefit a large number of transgenders persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into mainstream of society.
  • It will lead to greater inclusiveness and would make transgender persons as productive member of society.
  • The bill will bring greater accountability on the part of the central government and state government/ union territories administrators for issues concerning transgender persons.
• Negatives/Limitations/Shortcomings
  i. Principle of Self Determination/ Self Identification missing
  • NALSA verdict had suggested that anyone who didn’t identify with the gender assigned to them by birth could choose to identify as transgender without needing a physical examination and certification, the new bill undoes this possibility both in spirit and in practice.
  •  In fact, the parliamentary standing committee on the bill, which submitted its report in July 2017 have called for many modifications including the change in definition to ensure conformity with the international definition and providing right to self-identification.
  • In the current act, there are no avenues open either for appeal in the event a magistrate refuses to hand out such a certificate.

ii. Doesn’t suggest changes in other laws

• Certain criminal and personal laws currently only recognize the genders of ‘man’ and
  ‘women’. It has not been defined how such laws will be applicable to transgender
  persons.
  iii. National or State Commissions: No provision for national or state commission for transgenders
  • NCT, lack the power of commission, which is statutory in nature

iv. Transgender Rights Court: No provision for transgender right courts
v. Reservation: Silent on any kind of reservation for transgender persons in education system
vi. Lack of clear grievance redressal mechanism and insufficient punishment

• • The act is ambiguous about the methods individuals must follow to seek justice, limits the jail sentences that the offender may receive to just two years.

vii. Only covers transgender (protection may be needed by Intersex, Queer, lesbians, gays, bisexuals etc. as well)

Parliamentary standing committee on the bill submitted its report in July 2017 and suggested following changes.
a. Self-identification to bring conformity to international definition
b. Providing transgender persons with medical benefits
c. Providing quotas in government college and jobs
d. Recognize the rights of transgenders person to partnerships and marriages

• This has become more crucial after decriminalization of homosexuality by Supreme Court.

Conclusion1

With various judicial and legal efforts, NALSA Judgment, Transgender Persons (Protection of Rights) Act, 2019 etc., the environment for transgender persons is changing in the country. But, still we need to go a long way in creating a society completely inclusive of LGBTI++ community.

Conclusion2

We need to emulate Kerala Model throughout the country. This state, in last 12 years have turned from a society which was very discriminatory against transgenders to a society which is very inclusive towards transgenders. All this is a result of strong political will where politicians and administrators have acted to reform social attitudes.