The Transgender Persons (Protection of Rights) Bill, 2016 #59

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'The provisions of the Transgender Persons (Protection of Rights) Bill 2016 is just a lip service but wont change the ground reality'. Critically analyze. 

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Why in News?

  • The contentious Transgender Persons (Protection of Rights) Bill, 2016,which was tabled in the Lok Sabha by Thaawarchand Gehlot, the Minister for Social Justice and Empowerment in August 2016 has been passed recently (DEC 2018) by Lok Sabha

What the WHO says?

  • According to the World Health Organisation, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth.
  • For example, a person born as a man may identify with the opposite gender, as a woman.
  • According to the 2011 Census, the number of persons who do not identify as ‘male’ or ‘female’ but as ‘other’ stands at 4,87,803 (0.04% of the total population).
  • This ‘other’ category applied to persons who did not identify as either male or female, and included transgender persons.

The 2014 Supreme Court judgment (‘NALSA case’):

  • In February 2014, the Supreme Court passed a landmark judgement, paving the way for enshrining the rights of transgenders in law.
  • The apex court deemed that individuals had the right to the self-identification of their sexual orientation.
  • It ruled that the fundamental rights granted by the Constitution are equally applicable to transgenders who constitute the ‘third gender’.
  • The judgement also called for affirmative actionin education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. The blueprint for transgender rights legislation draws from the court’s directives.

Background:

  • The Rights of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Mr. Siva. It was unanimously passed in the Upper House but was never debated in the Lok Sabha.
  • The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgenders, as well as transgender rights courts.
  • These remedial measures to prevent sexual discrimination were done away with when the government drafted The Rights of Transgender Persons Bill, 2015.

Highlights of the Bill:

  • The final version of the legislation identifies transgenders as being “partly female or male; or a combination of female and male; or neither female nor male”. This definition which draws a clinical caricature is a departure from the intention of the original Bill to cleanse society of the stigma it placed on transgenders.
  • Moreover, to be recognised as transgenders, individuals have to submit themselves to a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychiatrist, a social worker, and a member of the transgender community. This is in stark contrast to the 2014 Bill which gives individuals the right to self-identify their sex.
  • The anti-discriminatory clauses of the Bill are extended to education, health care and social security. The provision of earmarking jobs for transgenders, a central plank of the 2014 Bill, has been lost in translation, with the diluted new draft ditching reservations and espousing equal opportunity in all spheres of life, as a panacea to create equity among the sexes.
  • Grievance redressal has been internalised, with establishments consisting of hundred or more persons mandated to designate a complaint officer to deal with any violation of the Act. This is in lieu of the setting up of central and State transgender rights courts.

Critical Analysis

Several civil society groups have been vocal about their opposition to the Bill  The Bill disregards many of their suggestions as also some of the crucial points raised by the standing committee report of July 2017.

  • This includes the right of transgender persons to self-identification, instead of being certified by a district screening committee.
  • The panel had also pointed out that the Bill is silent on granting reservations to transgender persons.
  • The bill has prescribed punishments for organised begging. However, the Bill doesn’t provide anything to better to condition in those areas, it doesn’t provide for reservation.
  • 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.

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Hemant Bhatt
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