Note4Sstudent

1. Transgender communities in India are facing issues like discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities. Transgender Persons (Protection of Rights) Bill, 2016 attempts to bring the community into the mainstream. It is important to know the bill provisions and various concerns expressed against the bill.

Introduction

1. Transgender community is among one of the most marginalized communities in the country because they don’t fit into the stereotypical categories of gender of ‘men’ or ‘women’.
2. Consequently they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on.
3. Through this Bill the Government has evolved a mechanism for their social, economic and educational empowerment.

Who is a Transgender?

Transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.  In addition, 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.

Key provisions:

1. Certificate of identity: A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill. Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee.  The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
2. Rights of transgenders and duties of government: The central and state governments must take steps to ensure that transgender persons enjoy right to equality, and protection from discrimination. The government must also ensure that transgender persons have accommodation, protection from torture, etc.
3. Health: The central and state governments must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, free of cost sex reassignment surgeries, etc.
4. Education: Educational institutions funded or recognised by the government will have to admit transgender students without discrimination, provide accommodation and necessary support.
5. Employment: Public or private establishments (including companies, unions, factories, etc.) will be prohibited from discriminating against transgender persons in matters related to employment including recruitment and promotion.
6. Further, transgender persons may be declared a Backward Class so that they can be entitled to reservation under the ‘Other Backward Class’ category.

Limitations of the bill

1. No rights and reservations are promised to the transgenders.
2. It failed to differentiate between interstate and transgender
3. No amendment of other operating laws related to marriage, property rights for transgenders is undertaken.
4. The bill is silent on the issue of section 377 of IPC that criminalizes unnatural sex from same sex individuals.
5. Absence of provisions to recognize the violence committed by the natal family.
6. The inadequate budget assigned by the Centre for this matter.
7. Absence of awareness programmes to sensitize the general population.
8. Lack of a clear mechanism through which transgender communities can access existing welfare schemes.

Key Issues and Analysis

1. The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution. However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
2. The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity.  However, it does not provide for the enforcement of such a right.  A District Screening Committee would issue a certificate of identity to recognise transgender persons.
3. The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India. 
4. The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons.  However, these terms have not been defined.
5. Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’.  It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.
6. The bill does not talk of reservations in educational institutions for members of the transgender community who do not belong to the Scheduled Castes or Scheduled Tribes
7. Avoids discussing major issues including on personal law like the right to marriage, inheritance and adoption etc.
8. It is silent on the count of police violence against the community, which serves as an important reason why the community is relegated to the margins in India.

Conclusion

Government needs to amend some of the provisions that would realize the true objective of mainstreaming the marginalized community

Questions

Q. What are the important provisions of the Transgender Persons (Protection of Rights) Bill, 2016

Q. Examine the various concerns expressed against the Transgender Persons (Protection of Rights) Bill, 2016

Q. “Transgender Rights Bill 2016 is grossly ignorant of the very issues it is attempting to address” Critically comment