Mains 2016: Transgender Bill: Issues and Suggestions

Context- Last year , a private member’s bill was passed by the rajya sabha after 46 years . It was The Rights of Transgender Persons Bill, 2014, by MP Tiruchi Siva.

The Transgender Persons (Protection of Rights) Bill 2016, was recently approved by the cabinet.

Both the private member’s bill and the government’s bill are pending in the Lok Sabha.

Transgender-

Transgender is a term used for the people whose gender identity does not conform with the sex they were assigned at the time of their birth.

Transgender people are sometimes called transsexual if they desire medical assistance to transition from one sex to another. Transgender also includes who are gender queer.

Sex is different from gender. Sex refers to genitalia and gender is a society constructed definition to differentiate between a man and woman.

Transgender communities in India-

• According to the 2011 Census, India has 6 lac people belonging to the transgender community.
• Transgender individuals in India are broadly called Hijras, Kinnars, and Aravanis in different parts of the country.
• There are preconceived notions that Hijra are “neither male nor female”. Hijras are mostly people who are born with male physiology; adopt feminine gender identity, women’s clothing and other feminine gender role.
• Odisha became the first state in the country to provide food grains, pension, health, education and housing benefits to the transgender community, including them in the Below Poverty Line (BPL) category.
• Kerala came up with a ‘Transgender policy’ last year in december aiming to end the social stigma attached to the community.
• Tamil Nadu has constituted the Aravanis Welfare Board in 2008, providing pensions for the community and creating awareness in schools on gender-variant people.
  

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Problems faced by transgender community–

• Criminal law is largely gender neutral in India while personal laws in India are chiefly gendered. The third gender is thus completely visible in criminal cases while invisible when it comes to the benefits accruing from family law.
• We have been taught that there are only two genders in the world and anything beyond is considered as abnormal . Transgenders fall into that abnormal zone making them an unwanted minority.
• Family looks at the identity change of their boy or girl as a social humiliation. Family is not ready to accept them as they are with their present identity. Some parents employ violence to change the behavior of their kids . Many a times they face insults, violence and humiliations while growing up which continues when they are adults.
• Since they are not qualified to be employed most often end up in taking up begging in the streets and are pushed into sex work.
• Another major area of concern is the constant denial of housing in housing societies and other areas leading them to being housed in slums.
  

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National Legal Services Authority (NALSA) v. Union of India and others judgement-

• The judges ruled that transgender people should be recognized as a third gender
• Upheld the right of the transgender persons to decide their self-identified gender
• Judgment gave broad directives to the central and state governments on affirmative action, public health, social welfare and other services to be made available for transgender people
• The Supreme Court noted that Section 377 of the IPC, though associated with specific sexual acts, targeted certain identities, including Hijras, and was used as an instrument of harassment and physical abuse against transgender persons.
  

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The Transgender Persons (Protection of Rights) Bill 2016-

• Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.
• A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person
• Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee
• The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare
• It ensures that such children are not separated from their families due to social stigma. In cases of abandonment, the state will provide rehabilitation centers.
• Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.
• The Bill provides for a National Council for Transgender Persons with the Union Minister for Social Justice as its ex-officio chairperson.
  

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Issues with the Bill–

1. Definition of transgender – is in contravention of the definition of transgender provided by the Supreme Court’s NALSA judgement, the private member’s bill and the Union government’s own expert committee on transgender persons.
2. The government’s bill proposes a district screening committee to “certify” transgender persons. This violates the NALSA judgment which upheld the transgender person’s right to decide their self-identified gender
3. Removal of the clauses which provided for the setting up of National and State Transgender Welfare Commissions is another deletion.
4. The Bill provides for a National Council for Transgender Persons with the union Minister for Social Justice as its ex-officio chairperson. A Council, however, lacks the powers of a Commission, which is statutory in nature
5. The government’s bill has also dropped the provision for reservation in education and employment to transgender persons, which was directed by the Supreme Court
6. Avoids discussing major issues including on personal law like the right to marriage, inheritance and adoption etc.
   

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Suggestions-

• Major issue lies with societal acceptance of transgenders and recognition that this section is not represented at various levels in government.
• Steps like creating awareness among people of the society, providing transgenders assistance in schooling and higher education .
• Sometimes laws are needed to bring change in the societal behavior like strict punishment for discrimination, reservation in clerical jobs etc
• It would have been a forward move if they were allowed to choose their identity as a male, female or other. The proposed government’s bill takes away this right from them.
• Because of the fear of backlash from society, family and friends, coming out as a transgender is itself a very challenging move for those who hide their identity.
• Society should be made sensitive enough to realize it is none of the concerned person’s fault.
• Environment should be made conducive to their full development, right to employment and special needs.They are able citizen, good to work and contribute to the economy.
  

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