As per Census 2011, the population of transgender persons in India is 4.88 lakh. Historically, Indian society has been tolerant of diverse sexual identities and sexual behaviors. In Indian mythology and ancient literature such as the Kamasutra, or the epics such as the Mahabharata, in which the transgender community has been portrayed with dignity and respect.

However, in the present times, the transgender people are one of the most socio-economically marginalized communities in the country. The National Human Rights Commission (NHRC) conducted the first-ever nationwide survey of the transgender community in India and found that 92% of the people belonging to the community are subjected to economic exclusion.

The Transgender Persons (Protection of Rights) Bill, 2016 aims at defining the transgender people and prohibiting discrimination against them. This bill was passed with 27 amendments in the Lok Sabha recently.

PPROVISIONS OF THE BILL

i) Definition of Transgender: A transgender person is somebody “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani, and jogta”.

ii) Prohibition against discrimination against transgender persons: The Bill aims to stop discrimination against a transgender person in various sectors such as education, employment, and healthcare. These offences will attract imprisonment between six months and two years, and a fine.

iii) Certificate of identity for a transgender person: The Bill states that a person will be recognized as transgender on the basis of a certificate of identity issued through the district screening committee (DSC). This certificate will be a proof of identity as transgender and confer rights under this Bill.

SHORTFALLS

i) No provision for self-determination of gender: The Supreme Court in its NALSA judgement (2014) has laid that the right to self-determination of a transgender is an inalienable right under right to life in Article 21 of the Constitution of India. The mechanism under DSC may be turning an issue of personal identity into a medical procedure, and making vast swathes of marginalized persons dependent on the whims of an often hostile bureaucracy.

ii) No reservations: The Supreme Court, in the landmark April 2014 NALSA judgment, had issued a directive “to extend all kinds of reservations in cases of admission in educational institutions and for public appointments” by treating transgender persons as socially and educationally backward classes. They were to be given reservations under the 27 per cent OBC quota, a suggestion that was also endorsed by the National Commission for Backward Classes in its recommendations to the Social Justice Ministry in 2014.

iii) Criminalizes begging: To make matters worse, the Bill criminalizes begging, thereby targeting transgender persons who rely on begging for sustenance. Such provisions disregard the lived realities of transgender persons for whom begging often is the last resort. In fact, provisions such as these could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will.

iv) Sexual Harassment not addressed: The Bill fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognizes rape in strict terms of men and women as perpetrator and victim, respectively. While the Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.

v) Dilution of Bar on Forcible Separation: The bill puts bar on forcible separation of transgender persons from their families, except through court orders. Earlier it covered both children and adult. Now it has been revised to cover transgender children only.

vi) Civil rights ignored: The Bill does not grapple with the realization of civil rights such as marriage, divorce, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.

vii) No mention of Punishment for Sexual Assault: The Transgender Bill does not mention any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.

viii) Issues with NCT: The law talks of a National Commission for Transgenders, but has nothing on membership structure, objectives, grievance redressal and other features of the commission.

ix) Creating awareness ignored:-
Further, providing children expressing trans identity safe spaces, and making knowledge and information about the community mainstream via the school curriculum to further understanding and empathy have been ignored in the new bill.

POSITIVE SIDES

i) Improved Definition: The bill omits the reference to ‘neither male nor female’ formulation of previous amendment and has adopted a more comprehensive definition of transgender persons.

ii) Prevent misuse in identification: Though the provision of certification violates the Principle of Natural Justice, but there are numerous cases where numerous people disguise as transgender people for begging and availing entitlements.

iii) National Council for Transgender (NCT) persons: A National Council for Transgender (NCT) persons will be set up to advice the central government on policies, and legislation related to transgender persons. It will also monitor and evaluate such policies.

iv) Benefits related to employment, health and education: The central or state governments shall provide welfare schemes and programmes to facilitate and support livelihood for transgender persons. This will include vocational training and self-employment. The central and state governments shall take steps to provide healthcare facilities to transgender persons. Educational institutions shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons.

WAY FORWARD

Recognizing Gender: The Bill must recognize that gender identity must go beyond biological. Gender identity is an individual’s deep and personal experience. It need not correspond to the sex assigned at birth.

Standing committee recommendations: Recommended setting up a grievance redress mechanism to address cases of discrimination, vocational training programmes and granting reservations to transgender persons.

Special Courts: There is a requirement of special courts which can deal with the offences against transgenders speedily and effectively.
Progressive View: Taking a cue from our western counterparts like UK, France and Germany, we must harmonize our laws to reflect the ‘unity in diversity’ that we celebrate. The cultural and religious norms must not be a hurdle in empowering this minority.
There is need for a comprehensive survey on the socio-economic status of the community. Transgender welfare boards are needed in different States.

A multi-pronged approach is needed on a war footing in the form of mass awareness campaigns, generating avenues for dignified employment, gender sensitization and affirmative action.