This Act came into force with the objective for prohibiting the discrimination against transgender persons and to establish a mechanism for social, economic and educational empowerment for transgender persons in India. The act has nevertheless attracted a lot of criticism. This Article aims to delineate the major arguments both for and against the provisions of this Act.
The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the ‘Act’) was first introduced as a bill by Thawar Chand Gehlot, Minister of Social Justice and Empowerment, and was passed by both houses without any amendments. The process was initiated when in 2013, the government set up an expert committee to study the problems faced by transgenders and recommend solutions for the same. The committee set up a welfare board in Tamil Nadu. In 2014, a private member bill, The Transgendered Persons, was introduced in the Rajya Sabha, by Tiruchi Siva, a Member of Parliament from Tamil Nadu. The bill was passed in Rajya Sabha but not in the Lok Sabha. In 2016, the government introduced another bill in the Lok Sabha and it was referred to a Standing Committee which made a number of recommendations but the bill lapsed. The 2019 Act preceded the Transgender Persons (Protection of Rights) Bill, 2018.
The Legislation of 2019 defined a transgender person as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta” (1). The Act prohibited discrimination against a transgender person. It also promises to provide health care facilities of different types the transgender community.
Despite the efforts of the Legislature, this legislation received a lot of criticism which led to mass retaliation across the different parts of the nation. The legislation was meant to be a consequence of the directions of the Supreme Court of India given in the landmark judgment of National Legal Services Authority v Union of India (2), which gave transgender persons the right to “self-identification” as male, female or transgender and gender reservations in educational institutions as well as public employment, but it failed miserably. One of the gender-rights activist, Harish Iyer, called the Act “regressive”. It was noticed by some that the legislation was rather made in haste because the 17th Lok Sabha’s monsoon session ended on August 6, 2019, and worked only for 281 hours in 37 days, during which they passed 35 bills. On average, a bill was passed in every eight hours, which clearly showed the seriousness with which the law was made.
Let us know discuss the strengths and weaknesses of The Transgender Persons (Protection of Rights) Act, 2019.
- As mentioned in Section 3 of the Act, it prohibits discrimination against a transgender person at various places and situations.
- Under Section 12 of the Act, every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person will be sent to a rehabilitation centre, on the orders of a competent court.
- Under Section 3(i) of the Act, it is mentioned that no government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
- Section 13 of the Act says that educational institutions funded or recognized by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
- Section 15 of the Act, says that the government must take steps to provide healthcare facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
- Section 6(1) of the Act says that a transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate of identity may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
- Section 8 states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. The state will take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
- Section 18 of the Act recognizes the offences against transgender persons of forced or bonded labour (excluding compulsory government service for public purposes), denial of use of public places, removal from household, and village, physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary from six months to two years, and a fine.
- Section 16 of the Act mentions that the Central Government will constitute a National Council for Transgender Persons which will advise as well as monitor the effect of the different policies and legislations of the government on the transgender persons. The NCT will consist of 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, and Human Resources Development. Other members include representatives of the NITI Aayog and the National Human Rights Commission. State governments will also be represented. The Council will also consist of five members from the transgender community (by rotation) and five experts from non-governmental organisations.
- The Act does not allow complete self-perception of gender identity based on the 2014 Supreme Court judgment as the certificate of gender identity is given by the District Magistrate only after examining the medical reports.
- The Act continues to mandate sex reassignment surgeries for transgender persons and gives emphasis on binary gender identity.
- The Act sets a lighter sentence for several criminal offences in comparison to those mentioned in the Indian Penal Code for the cis-gender, which is a minimum of 7 years. It also does not clearly define the offences against the transgender persons.
- There was no mention of an effective mechanism to enforce legally, the prohibition of discrimination.
- If a transgender person wants to leave his/her home because of the non-acceptance of his/her fluid sexuality, they can no longer join the trans-community. They must instead go to court first which will send them to a ”rehabilitation centre”. This shows that the legislation makers, still considers homosexuality, non-binary gender as a disorder.
- Medical assistance needed for the gender prescription shows that though the legislation does not mention a single word about “Screening Committee”, but it still exists in the background.
- Total absence of discussion about “trans men” (female to male transgender). There is no mention of the facilities and help required by transmen. The Act strongly focuses on hijras and transwoman and not on trans men, intersex persons, and genderqueer.
- The legislation completely ignores the need for reservation in public sector jobs and educational institutions for the transgender persons, unlike that given to the other socially and economically backward classes of the society.
- It does not discuss the issue of bullying which is a very common issue for the community and is faced often.
- The act criminalized begging. It also doesn’t talk about the traditions of the transgender community which includes badhai and neik.
- It does not talk about inheritance.
After discussing the strengths and weaknesses of the legislation, some of the suggestions that can be put forward for improving it are:
- Inclusion of reservations at different stages for the transgender community.
- Inclusion of the community in making the bill.
- Inclusion of traditions of the community.
- Focusing of non-binary in gender rather than transwomen and hijras.
Ever since the legislation has come into force, it has received severe criticism. Authoritative organizations like Human Rights Watch and International Commission of Jurists have also criticized it. The Act has been a regressive one which at very least grants gender identity and equal rights to the community in India. A petition was filed by advocate and transgender rights activist, Swati Bidhan Baruah, in the Supreme Court challenging the constitutionality of the 2019 legislation. We have yet to see what the court decides. The only and most recent development with regards to The Transgender Persons (Protection of Rights) Act, 2019, took place on April 20, 2020, when the Central Government directed all the departments of the central government to include ‘transgender’ as a separate category for recruitment in civil services and other posts.
(1) The Transgender Persons (Protection of Rights) Act, 2019, Section 2(k)
(2) AIR 2014 SC 1863