This article was written by Shruti Goel, a student of Government Law College, Mumbai.
Transgender people are those whose self identity do not confirm to their biological sex and thus they differ from the conventional notion of male or female gender. Transgender people fall under the LGBT group. In India, transgender people are broadly called hijaras/ kinnars (eunuchs). They are mostly the people who are born with male physiology but adopt feminine gender identity. But other identities like transgender men are yet to find their recognition in this definition. The reason, they say is that they have no support and space. They constitute the marginalized section of society in India, and thus face legal, social and economic difficulties. (1)
“While many transgenders have come out of the shackles of discrimination, social prejudice, there are many in the community who still live in the shadow of abuse, ridicule and alienation.” (2) Needless to say these people face many problems in the society like-
- Restricted access to educational and health services
- Difficulty in exercising their legal rights
- Lack of employment opportunities
- Discrimination at workplace
- Verbal and physical abuse
- Family and parenting issues
- Difficulty in securing identity documents
These are only some of the problems they faced, the list is endless. But the introduction of recent bill, the Transgender Persons (Protection of Rights) Bill,2016 seems to bring a little change in their life.” This bill is base on a private member bill passed in Rajya Sabha in April, 2016 and is pending before Standing Committee. The Bill imperils some of the rights guaranteed by the Supreme Court’s April 2014 judgment in National Legal Services Authority (NALSA) vs Union of India. It also appears, in part, to be an exercise to stymie the landmark private member’s Bill passed by the Rajya Sabha in April 2015.” The bill defines transgenders as a person who is partly male or female, or a combination of both male and female, or neither male nor female. Moreover, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers. The bill identifies transgenders as third gender and cannot be referred as ‘other gender’ or ‘others’ but only as transgenders. A certificate of identity as a transgender would be issued by District Magistrate on the recommendation of Screening committee. It also guarantees transgenders OBC status who by birth do not belong to Schedule Tribe or Schedule Caste and entitles them reservation under the respective categories. It also prohibits discrimination in education, healthcare and employment sectors. The bill also directs central and state government to launch welfare schemes for transgenders in these areas. The bill includes provisions for stringent punishments which include 2 year imprisonment and fine against people who physically abuse transgenders or compel them to beg or do prostitution or denying them access to public places. The bill aims to ensure that transgender children are not separated from their parents and in case of abandonment children would be provided rehabilitation center. It also states that some amendments need to be made in Indian Penal Code to cover cases against Transgender people.Under the provision of the bill, transgenders enjoys right to equality, right to life and dignity and all other human rights guaranteed by constitution of India. (3) (4)
The bill is supposed to benefit 4.9 lakh transgenders in India but concerns have been raised whether the provisions of the bill will be able to achieve its stated objective. It is said that the bill has many shortcomings and is far from the drafted bill of 2015.The transgender community thinks that the bill is massively diluted and have distorted premises which will lead to human rights violations. Moreover, if the bill passes, it will curtail the benefits given by the court in NALSA verdict. A major flaw in the bill is its problematic definition of transgender which is in contrast with the definitions recognized by international bodies. It appears scientifically incorrect, counterproductive and humiliating to the whole community. The current bill eliminates the option of identification as either male or female but further breaks down what a transgender is which leaves no room for fluidity. The bill negated the hard work of last few decades put in by transgender community to identify themselves as binary male or female. The bill takes away the right of self determination (how they wish to be identified) which is a right to dignity which comes under Article 21 under constitution. The experts think that screening process which involves many medical and other examinations by doctors to certify their gender would violate their dignity. This provision puts gatekeeping mechanism to already discriminated community. The bill also limits the jail sentence for the offenders to two years and does not directs a redressal mechanism for transgenders to seek justice. There are certain criminal and personal laws which only recognize certain gender of ‘male’ or ‘female’ which arises a concern as to how these laws would apply on transgenders. The bill does not provide reservation policies to benefit them in education sector. (5) (6) (7)
The Transgender Persons (protection of rights) bill, 2016 needs to be revised and redrafted as it lacks some important points which may worsen the sufferings of the transgender community. The guidelines in NALSA verdict by the Supreme court of India should be inculcated in the bill which redress the problems and sufferings of the community. The problematic definition of the transgender people needs to be reconsidered and reference should be made from international definitions and from the advices of experts. Moreover, policies should be made by a committee which should include some people from transgender community so that they can be benefited by the new policies. The ideas and suggestions of transgender community should be welcomed to make the bill more effective from them. Affirmative actions should be taken so that they can have easy access to educational and healthcare institutions. Strong redressal mechanism should be made to help them seek justice. Lastly, we on our level should try our best to help them feel that they are one of us and have a right to be treated equally.
- the life of transgenders in india. mapsofindia. [Online] [Cited: november 23, 2016.] www.mapsofindia.com.
- social exclusion of of transgenders: problems and prospects. questia. [Online] [Cited: november 2016, 2016.] www.questia.com.
- 10 things you need to know about transgender bill 2016. [Online] [Cited: november 23, 2016.] www.jaagore.com.
- the transgender person (protection of rights) bill,2016. PRS india. [Online] [Cited: november 23, 2016.] www.prsindia.org.
- failure of new transgender bill. the wire. [Online] [Cited: november 23, 2016.] www.thewire.in.
- explaining the bill that seeks to protect transgender. indian express. [Online] [Cited: november 23, 2016.] www.indianexpress.com.
- still a long battle for india’s transgender community. DNA india. [Online] [Cited: november 23, 2016.] www.dnaindia.com.