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ANALYSIS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
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ANALYSIS OF TRANSGENDER PERSONS
(PROTECTION OF RIGHTS) BILL, 2019
AUTHORED BY
- KM TABSSUM
ABSTRACT
Gender identity is well within a person’s rights.
In National Legal Services Authority v. Union of India Supreme Court has
affirmed the right of every Indian citizen to choose their gender identity
regardless of gender affirmation surgery. Following this judgment, states
across India have been constituting transgender welfare boards and the Indian
government has come out with The Transgender Persons (Protection of Rights)
Act, 2019 with aim to provide for protection of rights of transgender persons
and their welfare and for matters connected therewith and incidental thereto.
Transgender people in India face a variety of issues. This discrimination not
only denies Transgender people equal access to key social goods, such as
employment, health care, education and housing, but it also marginalizes them
in society and makes them one of the weaker sections who are at risk of
becoming socially excluded. Here the researcher is highlighting some major
problems faced by Transgender people in India.
This basic recognition of the very existence took long to realize. In
this paper, the author aims at establishing the unequal identity status and its
acceptance for the transgender, in the society. For this, existing laws and
their social backgrounds are analysed. The author doctrinally evaluates the
identity acceptance of the third gender by resorting to analytical, comparative
and critical methods. Towards this several social practices, laws, judgments
and related documents have been referred to.
Keywords: transgender, identity of the
transgender, Gender discrimination, , legal position of transgender.
INTRODUCTION
Transgender
community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas,
Shiv-Shakthis etc. Eunuchs have existed since 9th century BC. The word has
roots in Greek and means "Keeper of the bed" castrated men were in
popular demand to guard women quarters of royal households. Hinduism, Jainism
and Buddhism - and it can be inferred that Vedic culture recognized three
genders. The Vedas (1500 BC - 500 BC) describe individuals as belonging to one
of three separate categories, according to one's nature or prakrti. These are
also spelled out in the Kama Sutra (c. 4th century AD) and elsewhere as
pumsprakrtistri-prakrti (female-nature), and tritiya-prakrti (thirdnature).
Various texts suggest that third sex individuals were well known in pre-modern
India, and included male bodied or female-bodied people as well as
intersexuals, and that they can often be recognized from childhood. A third sex
is also discussed in ancient Hindu law, medicine, linguistics and astrology.
The
foundational work of Hindu law, the Manu Smriti (200 BC - 200 AD) explains the
biological origins of the three sexes: "A male child is produced by a
greater quantity of male seed, a female child by the prevalence of the female;
if both are equal, a third-sex child or boy and girl twins are produced; if
either are weak or deficient in quantity, a failure of conception results.
Indian linguist Patanjali's work on Sanskrit grammar, the Mahabhaya (200 BC),
states that Sanskrit's three grammatical genders are derived from three natural
genders.
The
earliest Tamil grammar, the Tolkappiyam (3rd century BC) also refers to
hermaphrodites as a third "neuter" gender (in addition to a feminine
category of unmasculine males). In Vedic astrology, the nine planets are each
assigned to oneof the three genders; the third gender, tritiya-prakrti, is
associated with Mercury, Saturn and (in particular) Ketu. In the Puranas, there
are also references to three kinds of devas of music and dance: apsaras
(female), gandharvas (male) and kinnars (neuter).
While another idea suggests that
homosexuality is really a "trade off trademark." For example, we can
say that particular characteristics in women help in increment of their accessibility,
yet if those comparing qualities are passed on in a male body, by then they
will slant him clearly towards homosexuality.
SURVEY OF THE
EXISTING LITERATURE
1. Grossman,
A. H., D'Augelli, A. R., & Salter, N. P. (2006). Journal
of GLBT Family Studies, 2(1),
71-92.
Male-to-female
transgender youth: Gender expression milestones, gender atypicality,
victimization, and parents' responsesstudied on 31% MTF transgender youth to explore their gender uniqueness,
gender expressions, gender untypicality and reactions of their parents.
Findings show that they experienced their peculiarity at the age of 8 to 9
years and majority of them stated about parental abuse during their early days.
2. Bryant,
Karl & Schilt, Kristen. (2008). Transgender People in the U.S. Military:
Summary and Analysis,78-90.
It administered an online survey of TG
persons in Australia and New
Zealand. The findings show that majority of TG participants had tried to amend
their documents to show their gender identity. Some of them reported denial of
bank laboutoan and housing, physical abuse. Participants stated higher rates of
depression than the general population of Australia.
3. Khan, S.I.,(2009).
Living on the extreme margin: social exclusion of the transgender population
(hijra) in Bangladesh. Journal of Health, Population and Nutrition. 27(4),
441-451.
They
found that Hijras of Bangladesh have no dignified life. They faced tremendous oppression and abuse (physically,
verbally, and sexually) this causes low self- confidence and self worth in
them. The study suggested that Hijras should be recognised as another gender
along with two gender norm of society and their citizenship rights also
guaranteed. investigated the beginning of transgender movement and different issues related that the
it.
4. Govier, E.,
Diamond, M., Wolowiec, T., & Slade, C. (2010). Dichotic listening,
handedness, brain organization, and transsexuality. International Journal of
Transgenderism, 12(3), 144-154.
It
studied the working of brain of sixty-eight
transwomen and twenty-six transmen by analyzing their performance with
thirty-six male and twenty-eight female controls on two indicators of cerebral
lateralization: dichotic listening and handedness. The findings show that the
transwomen’s dichotic pattern significantly similar to the control female
pattern but the transmen’s dichotic performance not significantly similar to
the control male performance. There is significantly more inclusive
right-handers in both transwomen and transmen groups.The neuroscience plays a
significant function especially in the development of the MtF trans-condition.
5. Sharma, P.
(2012). Historical Background and Legal Status of Third Gender in Indian
Society. International Journal of Research in Economics & Social Sciences,
2(2), 65-71.
It
justified the demand of legal status of this powerless and abandoned community of transgenders. Men and women of our
country havebenefitted by numerous welfare schemes of the Indian government but
the third sex deprived of this because of their no legal status.
6. Kisha, B.
G. (2015). A Study of Attitude of Society towards Transgender in South India.
International Journal of Science and Research, 6(8),1564-1569.
It
compared the correlation among attitude of youths and attitude of adults towards transgender to recognize the major
dissimilarity in the research variables. Result of study shows positive
attitude of the adults towards transgender than the youth.
STATEMENT OF PROBLEM
Even though
laws have been passed in our country to help transgender but instead of serving
the purpose of making their lives easier all they do is entangled them in a
legal formalities. The act on the face of it looks like it aims to give equal
treatment to transgender and treat them at par with every other member of the
society, but it miserably fails to do so. This research aims to explore that
aspect of the said law.
At this
time, it is estimated that 2-5% of the United States population is transgender;
however, due to the relatively new exposure of this population, the exact
number is difficult to determine. Often, this population remains hidden for
many reasons that will be explored later in this study. Transgender people are
best described as “denoting or relating to a person whose self-identity does
not conform unambiguously to conventional notions of male or female gender”
(Nuttbrock et al. 2014). Many times, transgender people express a desire to
change their physical appearance to match the gender they feel is present
within them. This can cause problems on many levels from psychological, where
an individual becomes depressed or suicidal over their gender expression, to
social, where they experience turmoil in personal relationships (friends and
family) when they decide to transition to the opposite gender.
TRANSGENDER PERSONS
(PROTECTION OF RIGHTS) ACT, 2019
The Transgender Persons (Protection of
Rights) Bill 2019 has been passed by the Parliament. It was passed by the Rajya
Sabha on 26th November, 2019 and already passed
by the 17thLok Sabha on 5th August, 2019.
The Transgender Persons (Protection of
Rights) Act, 2019 (‘Transgender Persons Act’) seeks to recognise the
identity of transgender persons and prohibit discrimination in, inter alia, the
fields of education, employment, healthcare, holding or disposing of property,
holding public or private office and access to and use of public services and
benefits.
Background
In National Legal Services Authority v. Union of India[1], the Supreme Court of India laid the
foundation for transgender rights in India by identifying ‘transgender’ as the
‘third gender’ and establishing several measures to prohibit discrimination
against transgender people and protect their rights. The judgement argued for
transgender people to be given preference in occupations and educational
institutions, as well as the right of transgender individuals to announce their
self-perceived gender identity without undergoing sex reassignment surgery.
A private member’s bill was introduced
in the same year in the Indian Parliament which was passed by the upper house,
a rare feat in itself, since, not a lot of private members’ bills have moved
this far. However, while the private member’s bill was still pending, in 2016,
the Indian government drafted and tabled its version of the bill in the
Parliament which was referred to a Standing Committee of the Parliament for
further suggestions.[4] In 2018, a new version of the bill was
introduced based on the Committee’s suggestions. At the suggestion of the
committee, a new version of the bill was presented in 2018, but with the
dissolution of parliament in 2018 and the formation of the new central
government in 2019, the bill was reintroduced and finally entered into force.
With the Transgender Persons Act just
coming into force, it is critical to grasp the key aspects of the law, the
achievements and shortcomings, and the repercussions on employers, particularly
in the private sector.
Key Features of the Law
Definitions
The definitions of transgender persons
and people with intersex variation have been made inclusive of males and
females, even if the person has not undergone any therapy such as hormone
therapy, sex reassignment procedure or any other.
Non-discrimination
The law is in the strict prohibits of
discrimination against transgender persons at educational or professional
institutions, healthcare and other public facilities as well as reinforces
their right of movement, property and holding of offices.
Identity Certificate
It administers the right to a gender
identity that is self-perceived and further casts a responsibility on the
district magistrate for the issuance of a ‘certificate of identity as a TG
person, without undergoing a medical assessment. It also provides for a further
change of gender to female or male for any person claiming a change in
gender.
Equal Opportunities
It further administers equal
opportunities with regard to policy matters for the transgender community. The
law has mandated the formulation of certain specific policy measures that would
be inclusive of transgender persons.
Complaint Officer
The law requires every establishment to
create a specific designation of a complaint officer.
Healthcare and Medical Facilities
The law also provides for the
establishment of separate HIV surveillance centres for TG persons; the
facilities need to be inclusive of healthcare relating to hormone therapies,
sex reassignment procedures etc., as well as cover medical expenses by an insurance
scheme that is specific to the medical needs of transgender persons.
National Council for Transgender Persons
(‘NCT’)
The law also mandates the constitution
of the NCT in order to guide and advise government officials for the auditing
of existing policies and the formulation of new ones as well as redressal of
grievances.
Offences and Penalties
Offences such as forcing transgender
persons into labour; or refusing accessibility to public facilities; mental,
emotional, physical and sexual abuse or violence; and other related offences
have now been covered under the act and are publishable by law.
Latest Compliances for Employers
The Act
also provides for a completely new bundle of compliances for all professional
institutions to follow which also includes all private employers. Given these
requirements, employers will be expected to update their HR policies as well as
strive towards sensitising and training employees to accommodate transgender
persons.
1. Prohibition
discrimination in order to provide a working environment which ensures safety
and growth.
2. Publish a
policy for equal opportunities for transgender people.
3. Establishment
of infrastructural amenities and facilities such unisex toilets, hygiene
facilities, confidentiality, transportation and much more.
4. Requirement
of designating a complaint officer at every establishment.
Analysis of the New Law
Over the
years, there is an urgent need to raise the awareness of different communities
and institutions so that they are actively responsible for recognizing the
rights of transgender people and treating them with basic human dignity and
equality with other genders, whether in educational institutions or
guaranteeing employment. Equal opportunities or guaranteed access to medical
care and use of public welfare and facilities. This is a step forward for India
towards the protection of the rights and identity of transgender people. The
Transgender Act shows that India is moving towards a more inclusive and
progressive society where people’s opportunities will not be restricted by
gender. It is hoped that this will ensure that labour standards comply with
international standards.
Amid
large-scale criticism and pan-Indian protests, a more prominent and
controversial issue related to the criminal conviction for begging from
transgender people, which was part of the previous draft bill, has been
dropped. Although begging will continue to be a major problem that must be
addressed, by not criminalizing this behaviour under the Transgender Law, the
government has at least tried to minimize the need to earn a living without any
other means of earning a living. Sexual harassment.
The need in
the previous law with a requirement of a medical screening and assessment to
get an identification certificate has been abandoned from the new Trans Act.
This would assist in reducing trauma as well as harassment that transgender
persons have to experience.
And the Misses
The
definition of “transgender person” in the Transgender People Act is vague and
misleading. The gender identity of transgender people is different from the
gender identity provided at birth, while “intersex variants” are based on
biological characteristics. Although two subtly separate definitions create
differences, the definition of “transgender” is too broad to include “people
with intersex variation.”
The penalty
for offences under the Trans Act include imprisonment of only up to two years
with a fine, which appears to be insufficient for heinous crimes like rape,
sexual abuse or violence, sexual harassment or criminal assault.
The
Transgender Persons Act is likely to remain unsatisfactory because it fails to
provide a skeleton on a variety of other associated rights, such as marriage
rights, adoption rights, pregnancy rights, and so forth – a missed opportunity
to be even more comprehensive.
The
Transgender Persons Act imposes far too many requirements on the “appropriate
government.” It remains to be seen how much emphasis the government will pay to
ensuring that all of those duties are met on schedule – leaving transgender
people at the mercy of the system for successful implementation of the benefits
offered to them under the Transgender Persons Act.
Some people
may argue that if the Transgender People Act provides reservations (affirmative
action) for transgender people in educational institutions and employment, it
may better attract transgender people, and it will be more comprehensive and
effective.
Transgender Persons Act, 2019 V/s NALSA
Judgement, 2014
According
to NALSA’s ruling on the Federation of India, transgender people will be
regarded as a “third gender” and their rights are protected by the
Constitution. It recognizes that gender self-identification is sufficient to
empower people. The Supreme Court also held that discrimination based on
“gender” is not limited to physical gender, but also includes “innate knowledge
of one’s own gender”, that is, the gender identified by transgender people. The
court discussed gender identity, acknowledging its indispensable role in
shaping an individual’s personality, and as a basic principle of living a
dignified life. While this is a historic trial and an important milestone for
the transgender community to fight for equal rights, it does not necessarily
guarantee their equal treatment, nor does it necessarily guarantee them to live
a dignified life.
In light of
the 2014 ruling, the parliament presented a series of bills that address the
rights of transgender people. The most recent was launched in July 2019 and was
later called the Transgender (Protection of Rights) Act 2019. The act has
received a lot of negative responses from the TG community because it
invalidates and is in contradiction of the NALSA judgment. They claim that the
new law is not only inadequate but will also reverse the progress made in
guaranteeing the rights of transgender people.
The NALSA
ruling recognizes the principle of “self-declaration” without any medical or
psychological proof, and is the only legal gender identification required. The
verdict also held that any insistence on performing reconstructive surgery is
unethical and illegal. The ruling complies with international standards and
best practices. For example, the United Nations requires that medical and legal
procedures for gender reassignment of transgender people be separated,
including the elimination of evaluations by psychologists, doctors or other
experts.
According
to the Transgender Act of 2019, in order to legally recognize a person’s
transgender identity, the bill requires the person to apply for a “transgender
certificate”, which will mark their gender as transgender. However, the new
rules require the person to submit a psychiatrist’s report in order to obtain a
“proof of identity.” In addition, if the person changes their gender to male or
female through surgery, they need a “revision certificate” issued by the
district judge. The district justice of the peace has the right to judge the
“correctness” of the application, although he can show evidence of gender
confirmation surgery. The draft rules make the process of gender identification
and redistribution cumbersome and intrusive. The rules on how to judge accuracy
are unclear. In addition, it does not require administrators to receive
training on the subject. By including psychologists, certified physicians, and
district administrators, these rules not only exacerbate humiliation and
intrusive policing, but also violate the right to “self-declaration” recognized
in the NALSA ruling.
Furthermore,
the bill stipulates that the abuse of transgender people is a punishable
offense, punishable by six months to two years in prison. A similar crime
against a cisgender may be punished with life imprisonment or even the death
penalty in some instances. Providing milder punishments strengthens the unequal
status of the transgender community. The bill is also unclear about
opportunities for transgender people to gain civil rights and benefits. The
NALSA decision ordered the government to formulate affirmative action measures
to “increase the presence of transgender people in educational institutions and
public appointments.” However, the new rules do not clearly stipulate those
affirmative actions should be taken in the areas of education, health and
employment, or civil rights related to marriage, adoption, and property.
Conclusion
It can be
deducted that though the colonial heritage acknowledges gender diversity in
temple sculptures, myths and religious treatises, transgender people in India
today still face intolerance, stigma, discrimination and violence. Human rights
violations against transgender people violate families, educational
institutions, workplaces, law enforcement agencies, healthcare institutions,
the media, and society as a whole. Affirmative action is needed to eliminate
stigma and discrimination associated with the community. The following actions
can help improve access:
1. Awareness
of gender variety, as well as the need to protect transgender adolescents from
hostile educational situations, is critical. Schools and teacher education
programmes are critical places for addressing TG issues and concerns. Schools
can employ the following policies and procedures to help enhance health and
safety among TG students.
2. A special
school for transgender students should be developed, as well as free education
from kindergarten to grade twelve.
3. Encourage
students to respect each other as well as Initiate strict measures against
bullying, harassment and violence.
4. Determine
“safe areas,” such as counsellors’ offices, dedicated classrooms, or student
groups, where TG youth can obtain support from administrators, instructors, or
other school personnel.
5. Encourage
student-led and student-organized school organisations that promote a safe,
inviting, and accepting environment in the classroom.
6. The
community has a culture of folk songs, art and dance that is unique to them. It
provides a strong sense of strength and identity to the community. These
cultural and artistic expressions are an integral part of the community and
must be combined with people’s livelihood activities to ensure more community
participation. Efforts should be made to provide sufficient financial support
as a link to employment opportunities.
7. The
community needs to be included in pension programmes in order to enjoy their
benefits.
8. Inform the
police about the issues facing the transgender community. In the event of
dishonourable comments and harassment, the law will be followed.
9. Make the
masses aware of their problems. The impulse of conscience is essential. Local
authorities, policy-makers, schools and families need to be further educated on
how to accept children with gender differences, treat people of different
genders and gender identities equally, and implement policies and plans in a
way. “friendly” rather than hostile.
10. Transgender
human rights issues should be highlighted in the media and other public forums
to raise public awareness and improve the ability of transgender people to
realize these rights. The stigmatization of media reports must stop.
11. Doctors and
healthcare providers must meet the specific needs of all transgender people.
Advocacy activities should be carried out for counsellors, psychiatrists and
other mental health professionals to prevent psychosocial harassment and
discrimination.
12. Parents
must be aware and informed in order to support their gender nonconforming or
transgender children, despite their discomfort and deeply held normative ideas.
Parents must pay attention to the possibility of their child being subjected to
violence outside home– at school, in the extended family, on the playground
etc. – and provide appropriate help. They must also be aware of the increased
stress experienced by a gender hetero normative or transgender youngster when
he or she enters puberty and experiences dysphoria when sexual organs traits
conflict with his or her sense of gendered identity.
REFERENCES
1. Akankhsya Mishra (2016); “Third Gender Rights: The
Battle for Equality”; Christ University Law Journal, 5, 2 (2016), 9-21 ISSN
2278-4322|doi.org/10.12728/culj.9.2.
2. Akhand Sharma (May-August 2018); “Identity Crisis
for Transgender in India: A Case-study from Madhya Pradesh” Quest - The Journal
of UGC - HRDC Nainital Volume 12, Issue 2, Pp: 157-167. DOI:
10.5958/2249-0035.2018.00021.9
3. Anirudhhan Datta and Raina Roy (August 2014)”Decolonizing
Transgender in India: Some Reflections”; TSQ: Transgender Studies Quarterly *
Volume 1, Number 3 * DOI 10.1215/23289252- 2685615.
4. CENSUS-2011
5. Dipayan Chowdhury, (2016)“ Recognizing the Right of
the Third Gender to Marriage and Inheritance under Hindu personal Law in India”
BRICS Law Journal Volume-III, issue-III, DOI: 10.21684/2412-
2343-2016-3-3-43-60.
6. Dr. Rajkumar (November 16); “Education of
Transgender in India-Status and challenges”; International Journal of Research
in Economics & Social Sciences (IJRESS)”; Vol-6, Issue-11, Pp-15-24, Impact
Factor-6.225, ISSN (o)-2249-7382. ( Available online at http://euroasiapub.org)
7. Jayaseelan. M (September 2015 ) Knowledge of
Transgender on Right to Education and Privileges, In Tirupattur, Vellore
(Dist); Indian Journal of Applies Research; Volume : 5 | Issue : 9 |Pp- 143-146
| ISSN - 2249-555X
8. Konduru Delliswararao1 & Chongneikim Hangsing
(2018); “Socio–Cultural Exclusion and Inclusion of Trans-genders in India”
International Journal of Social Science and Management, Vol. 5, Issue-1:
Pp10-17; ISSN No-2091-2986.
9. Pallav Das (February-2019) “Higher Education of
Transgenders in India: Opportunities and Challenges”; International Journal of
Research in Engineering, Science and Management Volume-2, Issue-2,
www.ijresm.com | ISSN (Online): 2581-5792.
Article Information
ANALYSIS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
Authors: KM TABSSUM
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/11
- Issue 7
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International Journal for Legal Research and Analysis
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