Transgender Community in India

Context:

The Lok Sabha has passed the Transgender Persons (Protection of Rights) Bill, 2016 with 27 amendments

Who are Transgenders?

• According to World Health Organization Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth
• They are referred to as transsexuals if they desire medical assistance in order to make the transition from one biological sex to another.

Transgenders in India- An Overview

• As per the Census of 2011, the total population of Transgender in India is 4.9lakh
• The highest proportion of the trans-gender population, about 28%, has been identified in Uttar Pradesh followed by Andhra Pradesh, Maharashtra, Bihar, Madhya Pradesh and West Bengal.
• There are various types of transgender communities in India- Hijras, Kothis, Aravanis, Jogappas, and Shiv-Shakthis etc.

Problems faced by Transgender communities in India

1. Discrimination: Transgender population remains one of the most marginalized groups. Sexuality or gender identity often makes transgender a victim of stigmatization and exclusion by the society
2. Forced to leave parental home:Transgenders are often ousted by their own biological family or run away at an early age due to harassment
3. Education: Transgender people are unable to access equal educational opportunities because of harassment, discrimination and even violence. Most transgender children are forced to drop out of schools as Indian schools remain unequipped to handle children with alternative sexual identities
4. Employment:They are economically marginalised and forced into professions like prostitution and begging for livelihood or resorting to exploitative entertainment industry.
5. Health:

• Transgenders frequently experience discrimination when accessing health care, from disrespect and harassment to violence and outright denial of service. The community remains highly vulnerable to sexually transmitted diseases like HIV AIDS. According to a recent UNAIDS report, the HIV prevalence among transgenders in India is 3.1% (2017).
• Mental health issues include depression and suicidal tendencies, and violence-related stress

6. Access to Public spaces and shelter: Transgenders face direct discrimination and denial while accessing houses or apartments. Further, they also face problems due to lack of provision of gender neutral/separate transgender toilets and discrimination in accessing public toilets
7. Civil Status:Possessing accurate and consistent identification documents has always been challenging for the transgender community.
8. Gender-based violence: Transgenders are often subjected to sexual abuse, rape and exploitation.

Constitutional Safeguards

1. Article 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
2. Article 15. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them
3. Article 19: Right to freedom of speech and expression
4. Article 21. No person shall bedeprived of his life or personal liberty except according to procedure established by law.
5. Article 23:Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with la

The Constitution provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion. But the transgender community continues to be ostracized

Progressive Developments for Transgender Rights in India

The Supreme Court Judgment on Transgender Rights:

1. NALSA Judgement, 2014: The Supreme Court in National Legal Services Authority v. Union of India & Ors recognized the third gender along with the male and female. The key takeaways from the judgement are as follows:

• Upheld that transgenders should be treated as third gender for the purpose of safeguarding their fundamental rights
• Acknowledged that article 21 of the Constitution guarantees right to choose one’s gender identity
• Directed the state to provide reservations in public education and employment as socially and educationally backward class of citizens
• Directed the state to make special provisions regarding HIV sero-survelliance for transgender persons and provide appropriate health facilities
• Directed the state to frame social welfare schemes for their all-round development

2. Section 377 Judgement, 2018: SC decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).

Legal Provisions:

Background:

• In 2014, The Rights of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) MP. It was unanimously passed in the Upper House but was never debated in the Lok Sabha.
• Later in 2015, the Union government drafted The Rights of Transgender Persons Bill, 2015.

Right of Transgender Persons Bill, 2016:

Aim:

The bill aims at defining the transgender people and prohibiting discrimination against them. Through this Bill the Government has evolved a mechanism for their social, economic and educational empowerment.

Key Features:

1. The bill defines transgender as “whose gender does not match with the gender assigned at birth and includes trans-men, trans-women, gender-queers, and other sociocultural identities.”
2. According to the bill, a person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery (SRS) and hormonal therapy.
3. The bill states that a transgender person has to obtain a Certificate of Identity which will confer rights and be proof of recognition of identity as a transgender person.
4. The bill calls for central or state governments to provide welfare schemes and programmes to facilitate and support livelihood for transgender persons. This will include vocational training and self-employment.
5. Offences such as compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to 2 years’ imprisonment and a fine
6. A National Council for Transgender (NCT) persons will be set up to advice the central government on policies, and legislation related to transgender persons.

Note: The Bill was originally introduced in 2016 and was passed with 27 amendments (after the recommendations of Parliamentary Standing Committee) by Lok Sabha in 2018

Major issues with the Bill:

1. Definition: Critics argue that the definition in the bill emphasises the biological dimension of transgender identity and conflates “sex” with “gender”. Further, the definition erroneously include all intersex persons under the transgender category.
2. Certificate of Identity:

• The provisions mandating certificate of identity from a District Magistrate for recognition as a transgender has been criticised as against the spirit of NALSA judgment.
• Critics argue that the provision is also a negation of the privacy judgment.
• Further the provision is contradictory as the bill also states that persons have right to choose ‘self-perceived gender identity’

3. Discrimination:The Bill limits the prohibition on discrimination to only nine types of discriminatory acts. Critics argue that discrimination is a multidimensional concept and to name just nine types is a travesty of justice
4. Rehabilitation:The bill does not allow the separation of transgender persons from their abusive families and separation is possible only under exceptional circumstances, under a judicial order whereby a person may be placed in a rehabilitation centre. Critics argue that transgenders need assistance with housing, not ‘rehabilitation.’ Further there are concerns as state-run rehabilitation centres are known to have deplorable living conditions and frequent instances of sexual violence.
5. Reservation: The bill has also been criticised for being silent on granting reservations to transgender persons.
6. Criminalizing transgender persons: Critics argue that the bill fundamentally misunderstands the specific circumstances in which transgender persons are forced to beg or take up prostitution as a profession. In such circumstances, to criminalise whoever “compels or entices a transgender person to indulge in the act of begging” can criminalize transgenders
7. Punishment:

• The bill fails to prescribe a punishment for the violation of prohibited acts like sexual crimes.
• Critics argue that the bill overlooks everyday acts of bullying, intimidation and abuse carried out by police officials and further grants them complete immunity from prosecution.

Way Forward

1. Self-Identification:

• India’s law should allow individuals to self-identify their own gender. It should adopt a modelof gender recognition that does not rely on a diagnosis of gender dysphoria by medical professionals.

2. Education:

• It is important to evolve an effective system to sensitize schools and universities as regards to the needs and the nature of the transgender community.
• Further, the issues pertaining to the transgender community within the education sector must be dealt with a holistic approach by addressing the core issues of equity, environment and employment

3. Employment:

• Schemes and measures should directed towards skill development among transgender communities. Further, bank credit, micro loans, subsidized loans should be provided to support self-employment or entrepreneurial initiatives.
• Anti-discrimination Policies must be effectively followed in processes of hiring, retention and promotion.
• Workplace anti-sexual harassment policies should be transgender inclusive

4. Health:

• Separate policies related to health care must be framed and communicated in all private and public hospitals and clinics. The focus should not only be on HIV prevention but also on mental health issues and measures to address alcohol and drug abuse.

5. Legal Protection:

• Legal and the law enforcement systems need to be empowered and sensitized on the issues of Transgender community.
• Stringent criminal and disciplinary action must be taken against the people who commits violence against Transgender.
• Amendments should be made in several other laws like IPC to include transgender. For example, definition of rape under Section 376 IPC deals with crime committed against a female.
• Provision of free legal aid must be ensured for the Transgender community

6. Awareness:

• A multi-prolonged approach with focus on public awareness campaigns is needed to eliminate the social stigma associated with the transgender community. Large scale sensitization needs to happen starting from the school level to accept the transgender community integral component of societal life.