The Transgender Persons (Protection of Rights) Act, 2019: A Brief Overview

Introduction:

The word transgender has been derived by conjoining two terms. The first being ‘trans’ which is a Latin term meaning across or beyond and the second being gender. Transgenders or the people we commonly refer to as hijras, chakkas, eunuchs, kinnars etc., have been a part of our community for centuries.  But this particular section of the society and their rights have been ignored for long. They are harassed, ridiculed, tortured and looked down upon for no fault of theirs and simply for being who they are.

However, on 15^th April, 2014, the Honourable Supreme Court of India in the case of National Legal Services Authority (NALSA) v. Union of India gave recognition to the third gender or the transgender as a separate gender and upheld the right to self-identify as a transgender marking the first step towards the empowerment of the transgender community. A series of Bills in 2014,2016 and 2018 were introduced for the protection of rights of the transgender community but could not take statutory form for some reason or the other.

In 2019, Mr Thaawarchand Gehlot, the Minister for Social Justice and Empowerment, introduced The Transgender Persons (Protection of Rights) Bill, 2019 in the Lok Sabha which came into effect on 10^th January, 2020. The Act extends to whole of India and provides for the protection of the rights of transgender persons, promotion of their welfare and also deals with other matters connected to them.

Brief History of Laws Relating to Transgenders in India

Transgenders occupied an important place in the ancient history of India but with the advent of the British rule their condition deteriorated. The Criminal Tribes Act, 1871 which was enacted under the Colonial rule deemed the Hijra community as ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’. If such people were seen in public places dressed like a woman then they could be arrested without a warrant and sentenced to imprisonment for up to two years or fine or both. The act was, however, repealed in 1949.

Apart from this, Section 377 of the Indian Penal Code, 1860 which criminalised homosexuality further added misery to the already suffering transgender community but was partially declared unconstitutional in the case of Naz Foundation (2014). After struggling for centuries, The Transgender Persons (Protection of Rights) Act,2019 was enacted for upholding the rights of the otherwise socially excluded and oppressed transgender community.

Definition of Transgender Person

Section 2(k) of The Transgender Persons (Protection of Rights) Act, 2019 has defined a transgender person as a person whose gender does not match with the gender assigned to such person at birth. The definition also includes trans-man or trans-woman irrespective of whether that person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy. In addition to this, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta have also been included under the definition of a transgender person.

Certificate of Identity

A transgender person can obtain a certificate of identity by self-identifying themselves as a transgender.

• CHAPTER III of the act upholds the right of a transgender person to be recognised as such by making an application to the District Magistrate in such manner prescribed by the act to obtain a certificate of identity.
•  In case such person is a minor, the application is to be made by the parent or the guardian of the minor.
• The District Magistrate shall issue a certificate of identity after the procedure has been duly complied with.
• If a transgender person undergoes a surgery for change in his/her gender then in order to obtain a revised certificate such person has to make an application in a manner as prescribed by the act along with a certificate issued by the Medical Superintendent or the Chief Medical Officer of the medical institution where such person had his surgery done.
• The District Magistrate will issue a certificate indicating a change in gender of such person if the District Magistrate is satisfied with the application.

Prohibition of Discrimination

The act prohibits discrimination or unfair treatment under CHAPTER II of the act against transgenders with regard to:

• Education
• Employment or occupation
• Health care
• Right of movement
• Right to rent, purchase, hire, reside or occupy property
• Standing for or holding of public or private office
• Care or custody in Government or private establishment
• Access to any goods, accommodation, service, facility, benefit, privilege or opportunity available to the general public

Welfare Measures by the Government

The act provides for obligation on the part of the government to take welfare measures for the benefit of transgender persons which are:

• Taking appropriate steps to secure participation and inclusion of transgender persons in the society.
• Facilitating access of transgender persons to welfare schemes framed by the government to protect their rights and interests.
• Formulating schemes that are transgender sensitive.
• Taking appropriate steps to rescue, protect and rehabilitate transgender persons.
• Ensuring participation of transgender persons in cultural and recreational activities by adopting suitable measures.

Provision for Education, Social Security and Health

CHAPTER VI of the act provides for measures to be taken by the government with regard to education, social security and health of transgender persons, some of which are:

• The act provides for government-funded or recognised institutions to provide inclusive education opportunities to transgender persons without discrimination and at par with others.
• Formulating schemes for self-employment and vocational training of transgender persons.
• Facilitating access to hospitals and health care facilities.
• Provision for insurance scheme to cover medical expenses incurred over health-related issues.
•  Reviewing medical curriculum to address their health issues.
•  Setting up of separate HIV Sero-surveillance Centres.

National Council for Transgender Persons

The Act provides for constitution of a National Council for Transgender Persons to advise the government on formulation of policies and programmes for transgender persons, review and evaluate the impact of such measures, coordinate with other departments of governmental and non-governmental organisations dealing with matters related to transgender’s persons and perform such functions which may be prescribed by the government. The National Council for Transgender Persons shall consist of the following people as its members:

• Union Minister of Ministry of Social Justice and Empowerment as Chairman of the council.
• Minister of State of Ministry of Social Justice and Empowerment as Vice Chairman of the council.
• Secretary and Joint Secretary to Government of India of Ministry of Social Justice and Empowerment.
• One representative from each ministry such as Health and Family Welfare, Home Affairs, Rural Development etc.
• One representative from both the National Human Rights Commission (NHRC) and the National Council for Women.
• From the North, South, East, West and North-East regions of India representatives of State Governments and Union territories and five representatives of the transgender community from these regions.
• Five experts from NGO’s or associations which are engaged in welfare activities for transgender persons.

Offences and Penalties

A person shall be liable for imprisonment for a period of six months which may extend to two years and with fine under The Transgender Persons (Protection of Rights),2019, if such person does any of the following acts:

• Compels or entices a transgender person to engage in bonded labour.
• Obstructing a transgender person’s movement or denying such person access to a public place which other members of the society have a right to use
• Forcing a transgender person to leave their household, village or place of residence.
• Endangering a transgender person’s life, safety, health or well being by causing mental or physical injury.

Criticism of the Transgender Persons (Protection of Rights) Act, 2019

• The act has failed to speak about marriage rights, adoption rights and surrogacy rights of transgenders.
• The act does not specify what will happen if the District Magistrate refuses to issue a certificate of identity. The act also does not specify on what grounds can the District Magistrate refuse to do so.
• The punishment for abusing, harassing, endangering the life, safety and well-being of a transgender person is maximum two years of imprisonment which is very less when compared to punishments for the same offence committed against either male or female gender.
• By criminalising begging and not granting transgenders reservation in both education and employment the act has made it even more difficult for them to earn livelihood.
• The act states that a transgender person shall not be separated from family but many a time it is the family that harasses them for being they who are.

National Legal Services Authority vs Union of India & Others (AIR 2014 SC 1863)

The issue raised before the court was whether the transgenders, who neither identify themselves as male or female gender have a right to be categorised and recognised as a ‘third gender’ in order to safeguard their constitutional rights. The court in this case ruled in favour of the petitioner thereby recognising the transgenders as ‘third gender’ in a landmark judgement so that the people of the transgender community are able to enjoy the basic human rights granted by the constitution of India under Article 14, 15, 16, 19 and 21.

REASONING:[1]

• “Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
• “Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”
• “Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed.”
• “The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.”
• “Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India”
• “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.”
• “The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights.”
• “We are of the firm opinion that by recognizing such TGs as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition.”

Conclusion

The transgender persons have been subject to harassment both physically and mentally and discriminated against on the grounds of gender. They have been socially excluded from the community everywhere from hospitals, educational institutions, health care etc. and continue to be treated like untouchables even today.

The enactment of The Transgender Persons (Protection of Rights) Act, 2019 is a major step towards ensuring that the transgenders are treated equally and at par with other people. Even after passing of the NALSA judgement and The Transgender Persons (Protection of Rights) Act, 2019, the transgender persons are looked at as abnormal by a large number of people because of lack of sensitisation. Public awareness is needed to uphold the right of transgenders to lead a life of dignity, integrity, respect and to ensure that they are able to live without fear of being who they are. The 2019 legislation is a welcome move but without spreading awareness about transgenders and sensitising not just the common man but even police, health care professionals, etc. is needed to ensure that the letter of the law is upheld in its spirit too.

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[1] National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014. Retrieved 21 November 2020, from https://indiankanoon.org/doc/193543132/