December 2, 2020

TRANSGENDER BILL: A CRITICAL ANALYSIS

Abstract:

Throughout our lives we’ve been told that sex and gender are synonymous men are “masculine” and women are “feminine”. Girls should prefer pink; boys should prefer blue. Clear, set codes of gender are neither eternal, nor universal. The problem is that many people who do not follow such limited social limits are experiencing a spectrum of abuse and aggression. Such groups of people who fall outside of the traditional realms of gender are known as Transgender people.

Definition of a transgender person:

The Bill identifies a transgender as one whose identity is incompatible with the identity assigned at birth. It includes trans-men and trans-women, individuals with abnormalities in intersex, gender-queers, and those with socio-cultural identities, such as kinnar and hijra.

Problems Faced by Transgender:

In India, the overall transgender population is around 4,88 lakhs, according to the 2011 census. The people also repudiate them and they are a part of the extreme lower and cultural life. We have been exposed to gender inequality, racial abuse, brutality, denial of facilities and unequal treatment in public and private environments, exclusion from social and cultural participation, isolation from family and community, lack of work opportunities as well as no educational opportunities also.

The Constitutional Rights:

Although India has made substantial gains on transgender people’s rights in recent years, most of them remain socially oppressed and deprived of basic rights, including the right to vote, own assets, marry, and claim formal identity either through a passport or other recognition by government. According to Article 14 and 21 of the Constitution, the right to equality before law and equal treatment of law is guaranteed. The right to choose one’s gender identity is an integral part of living a dignified life which falls again within the scope of Article The Court granted people the right to gender identity Therefore, they cannot be discriminated against on gender grounds because they are in violation of Articles 14, 15, 16 and 21. The Court also covers the gender identity referred for in clause (a) of Article 19(1) And held that ‘no constraint can be imposed on one’s personal appearance or dressing preference subject to the restrictions set out in Article 19(2) of the Constitution. Given all these fundamental rights till date, they are still unable to live a better and free life under the world, though the rules, rights give them permission to have a good life, but in various parts of the world, mainly India, they have to fight and cry out for their rights in every region.

Highlights of The Bill

The 2018 Bill offers the transgender person the option of applying for a transgender identity certificate[1].The Certificate application is sent to the District Magistrate, who in turn refers it to the District Screening Committee[2]. The District Magistrate then grants the transgender person a Certificate of Identification upon such committee’s recommendation.

In the NALSA case, the Supreme Court was concerned to “how the State and its authorities are either ignorant or unable to digest the inherent character and identity of transgender people[3]. The Bill aggravates this issue by refusing to recommend any protocol to be adopted by the District Screening Committee when interacting with the District Magistrate’s request to it.

However, the government has the power to prescribe the type and manner in which the Identity Certificate would be issued
[4], but no guidance or safeguard is given to direct the government while framing the laws.

· Prohibition of discrimination: The bill prohibits discrimination against a transgender person, including denial of service or unequal treatment in reference to:

o literacy;

o employment;

o medical care;

· accessibility to or enjoyment of products, services and resources accessible to the public; freedom of movement;

· Right of residency: Every transgender shall have the right of residence and shall be included in his household. If the immediate family cannot care for the transgender person, under the orders of a competent judge, the person can be put in a recovery facility.

· Health services: The government has taken steps to provide transgender health services, including separate HIV screening centers, and gender reassignment surgery. The government must amend the medical curriculum to tackle transgender people’s health problems, and provide them with adequate insurance schemes.

· Literacy: Educational institutions sponsored or approved by the government concerned have transgender education, sports and leisure facilities for transgenders without discrimination.

Certification of identity for a transgender person: A transgender person can make an application to the District Magistrate for a certificate of identity, representing the gender as transgender.

· Government welfare initiatives: The Bill specifies that the government concerned must take steps to ensure the full integration and involvement of transgender people in society. It must also take measures to rescue and rehabilitate them, establish vocational training and self-employment schemes which are responsive to transgender.

Historic Verdict of Supreme Court:

THE NATIONAL LEGAL SERVICE AUTHORITY VERSUS UNION OF INDIA & OTHERS

The National Legal Services Authority (NALSA) was formed under the Legal Services Authorities Act, 1987 and It has been actively involved in overcoming the problems that Transgender people face. It has also taken numerous measures to allow for the legal adoption of children by transgender people.

Facts

The case involves Transgender complaints and their legal acknowledgement of gender as transgender individuals, and whether identification of them as male or female violates the Constitution. Previous laws in India recognize only males and females, and lacked any provision regarding transgender rights. The community has been exposed to discrimination in different facets of life due to the lack of legislation to protect transgender people. A Writ Petition was then filed before India’s Supreme Court appealing for the legal recognition of transgender people as the Third Gender.

Problematic features of the bill


Recommended change by the community
Definition: ” Transgender person “means a person whose gender does not match that person’s gender at birth and involves trans-man or trans- woman (whether or not that person has undergone sex reassignment surgery or hormone therapy or laser therapy).



Recommend explicitly identifying transsexual and intersex individuals and upholding the definition of transsexual by the Standing Committee: ‘a person whose identity does not suit that person’s gender at birth and includes transgender and transgender individuals (whether or not they have undergone sex reassignment surgery.)


Criminalization of enticement to beg: Whoever compels or invites a transgender to engage in the act of begging. “Is punishable by law for a period not less than six months, but which may extend to two years and with fine.”

As the Committee specifies “The provision is likely to be misrepresented in the garb of defending them against the other transgender persons. It is an open secret that most transgender people are abused under the laws of begging prohibition, even though they are not praying or actually present in public places”. We recommend gender based internal reservation for trans people and a strong anti-discrimination provision with penalties, for educational and employment access.

Low punishments for violence against trans people: “Anyone threatens or injures or endangers the existence, protection, health or well-being of a transgender individual, whether mental or physical, or attempts to commit actions that involve physical assault, sexual abuse, verbal and emotional abuse and economic abuse; shall be punishable by imprisonment for a period not less than six months, but which may extend to two years and be finely punished.”

The penalties for sexual violence against all transgender people ought to be equal to the current penalties for sexual violence against women, while the penalties for physical, mental, emotional and economic harassment should be equal to the penalties under existing law for such acts. Specific abuses faced by transgender and intersex people must be identified and strictly penalized, including forced conformism of the sex, hormone treatment and/or surgery, pseudo-psychotherapy based on aversion, forced marriages, stripping, etc. All trans people should have the right to be dealt with by female police according to their preference and should be kept in different cells with access to gender affirming treatment, legal aid and education.

Conclusion

The concept “life” does not connote pure presence of animals. Including the right to privacy, the right to integrity, etc., and all other aspects which make a person’s life valuable must be widely interpreted. The word used in Article 21 is “female,” hence the application of this right is not limited and is open to all gender persons. Transgender person now has the freedom to live in Dignity To be recognized within a liberal democracy means to be valued, to protect one’s dignity and to have some access to public self-expression. An unvalued person becomes readily a victim or a scapegoat for other people’s hatred and starts to see him or herself only through the prism of such hate and anguish.


[1] The Transgender Persons (Protection of Rights) Bill, 2018, s. 5

[2] The Transgender Persons (Protection of Rights) Bill, 2018, s. 6.

[3] National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438.

[4] The Transgender Persons (Protection of Rights) Bill, 2018, S. 23.

Author Details:

Anamika Chhabra is a student at FIMT College, GGSIP University, New Delhi.

The views of the author are personal only. (if any)

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