Answered: Critically discuss the salient provisions of Transgender Persons (Protection of Rights) Bill, 2016. Analyze its key issues and concerns, in the context of the NALSA judgment.


Transgender Persons (Protection of Rights) Bill, 2016 was recently introduced in the Loksabha, pursuant to the Supreme Court’s landmark judgement in NALSA vs. UoI (2014).

Salient provisions:

  1. Defines transgenders as persons who are neither female nor male, or a combination of female and male, or neither male or female, or someone whose sense of gender does not match the gender assigned at birth.
    This definition conflates gender – a social construct, with sex – a biological feature and is therefore exclusionary. It is also at variance with internationally accepted definition.
  2. Transgenders will have to obtain a proof of identity to invoke rights under the bill. District Magistrate will issue this proof on the basis of recommendations by a committee of specialists. This opens the door for arbitrary medical examination of the transgenders and violates the principle of “self-perceived” gender identity.
  3. Bill prohibits discrimination against transgenders in education, employment, and healthcare and directs the governments to provide welfare schemes for them. This is a good step towards empowering them.
  4. Bill directs governments to provide special healthcare treatment for HIV, sex reassignment surgeries (SRS), hormone therapies, as well as insurance facilities. This is a good step, but the previous bill provided for free SRS treatments.
  5. 5. National Council for Transgenders (NCT) to monitor, evaluate and advise the government on policies related to transgenders. However, there is no grievance redressal mechanism available to the transgenders.
  6. The Bill criminalizes offences like compelling a transgender to beg. Nearly 75% of transgenders are forced to beg at present due to lack of other avenues. Criminalizing this act without alternative modes of livelihoods is not proper.

Key issues in the context of NALSA verdict: 

  1. Self-determination of identity is integral to Right to Life under A.21 according to the verdict. Need to obtain a certificate from a designated committee goes against this principle. However, there is also a need to have an objective criterion for determining transgender identity in order to prevent misuse of the rights conferred by the bill.
  2. Verdict and the 2014 bill directed governments to ensure reservation in educational institutions and employment, but there is no provision for that in the 2016 bill.
  3. Verdict legally recognized transgenders as the third gender. All the legislations in force (from IPC to Domestic Violence Act to acts for marriage, divorce and adoption) contain the terms “man” and “woman”. The Bill does not address the problem of how the third gender will fit in these existing legislations.
  4. Bill is silent on repealing Section 377 of IPC, under which the transgenders are booked frequently, since the section criminalizes “any carnal intercourse against the order of nature”.

Transgenders have been discriminated against and subjected to social stigma since centuries. The new bill, while a step forward, falls short of addressing valid concerns regarding the welfare and empowerment of the transgenders in the true sense. The provisions of the bill need to be strengthened in accordance with international practices and the NALSA verdict.


 

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