CRITICAL ANALYSIS OF THE RECENT TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
Author: Akansha Anand
Fairfield Institute of Management & technology.
The sole purpose of welfare legislation of any country should be to protect its citizens without having any discrimination among its citizens on the basis of gender, race, religion, etc. Hence, it should be the duty of the legislature to protect the right of every transgender of this society. But in actual condition, there is a very grave threat to their lives and they are also disallowed for occupying any social or political spares. History has also betrayed them because of their appearance, in other words, transgender has not accepted by society. The majoritarian forces killing, raping and stripping them naked, their identities and bodies manipulated to the extent that the word violation would be short. Therefore, the need of having separate laws regarding transgender becomes necessary and only be corrected through an active effort of the state to stop it, thus transgender protection of the bill was passed by the parliament of India. From 2014 a watershed moment has started and by the NALSA judgment, the series of the bill has passed to uphold the recognition of the identity of the third gender.
According to the 2011 census more than 4.80 lakhs transgender has been calculated in the population of India. The law had recognized only two genders, namely men and women in criminal as well as in civil laws, by the passage of time, many changes have happened. In 2014 major impetus to transgender rights were given by the judgment of the case NALSA vs. Union of India the Supreme Court Of India recognize the third gender that is transgender. Then, in the case Navtej Singh Johar vs. Union of India, the landmark judgment was given by the Supreme Court of India- they decriminalize a part of Section 377 of Indian Penal Code and barred even consensual homosexual sex between adults.
The Supreme Court of India introduces the doctrine of progressive realization of rights which means the law should be modern ethics, sensible and easy to apply and the state has obligation to take appropriate measures for the progressive realization to social, economic and cultural rights. The doctrine of progressive realization gives birth to the doctrine of non-retrogression which states that the state should take necessary steps to lead retrogression to the enjoyment of rights by each and every citizen of any gender. And the following judgment also led the government to pass and bring the bill for the protection and development of the LGBTQ community.
THE TANSGENDER (PROTECTION OF RIGHTS) BILL, 2019-
The Transgender (Protection of Rights) Bill, 2019 came after the series of many bills and with alteration in it. At last, the legislature after too many attempts came up with an appropriate bill which covers all the aspect of the rights of transgender people but as well as many loopholes. In the bills of 2016, 2018 there was lack if inconsistency which led to the protest by LGBTQ community and this results in the birth of the bill of 2019, however, the transgender bill 2019 also does not cover all the aspects of the judgment of NALSA vs. Union of India but it has stopped the protest by the citizens of the country.
The transgender bill, 2019 was passed by the Lok sabha on the 19th of July 2019 but now Rajyasabha also passed it and now the bill is waiting for the President confirmation, after that it will become an act. The bill defines transgender people as follows- “Transgender people have a gender identity or gender expression that differs from their assigned sex. Some transgender people who desire medical assistance to transition from one sex to another identify as transsexual.’’ Hence this bill that is the transgender people bill, 2019 gives preciously definition of the transgender people and also highlights many other laws that give the transgender a respectful life and liberty, freedom to their lives.
In other words, the bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. Intersex variations is defined to mean a person who at birth shows the variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of the male or female body.
The 2018 bill passed by the LokSabha was widely criticized by transgender persons, activists, students, and lawyers. Transgender persons protested in various cities in India calling the provisions regressive and in violation of the Supreme Court judgment in 2014. The criminalization of begging under the 2018 bill was to affect transgender persons in India, such as hijras and jogtas who engage in begging as a ritual-custom while some rely on it for livelihood. The provision of the District Screening Committee had also left gaps for incompetence and prejudice and was supposedly done to filter out imposters from seeking benefits of government welfare schemes. The definition of transgender persons under the 2018 bill, retained by the 2019 act, was also reported to be at variance with international expert understanding of the term.
The bills have been met with protests by transgender persons. Their passing by the LokSabha has been referred to some transgender persons as “black day” and “gender justice murder day”. Yet others have described the 2018 bill as “draconian and discriminatory”.Protestors alleged the 2018 bill to be institutionalizing violence and claimed neglect of recommendations made by the Standing Committee and transgender persons.
Following are the features of the Transgender People Bill, 2019. They are-
- The bill gives preciously the definition of transgender which was not given in all the previous bills. It clearly describes who are they? And describe them as the third gender of society.
- The bill also prohibits discrimination against transgender people in the social as well as political spares.
- The bill gives the right to the residence to transgender people. If they do not have any place to reside then they can use the re-habitation center to live which is established by the government of India.
- They bill gives them an equal opportunity just like other citizens in the field of employment, schooling, and other spares. The word discrimination against them is fully abolished.
- They get equal opportunities to get treated in hospitals and health center just like other citizens.
- The certificate of character by the bill 2019 only needs self-declaration, not the physical test that was taken in previous bills which hurts the character and privacy of the transgender got abolished. Now merely declaration in front of the district judge becomes valuable and valid.
- The bill consists of many welfare measures by the government.
- As per the judgment of the NALSA, the bill orders to establish a National Council for Transgender People (NCT) which will do work for the transgender people and helps to develop them and provide them an equal opportunity just like other citizens and genders of India.
- The offences like forced banded labour of transgender, denial the transgender to use public places and religious places, removal transgender from their household and villages, abuse the transgender verbally, physically, mentally and sexually, etc. doer will be liable for the punishment of imprisonment of minimum six months that can extend to two years or fine or both.
REMAINING BOTTLENECKS IN THE TRANSGENDER BILL,2019-
- The bill has the problem of nomenclature as it only based on the transgender community no other minority community from LGBTQ- (lesbian, gay, bisexual, transgender and queer) does not add in the bill. It would be more appropriate to focus on all the majority community rights rather than only transgender rights.
- The bill is against the spirit of self-perceived identity and it states unclear picture of the term self-perceived as the bill states that the person will be recognized as transgender only if the person gets the certificate of transgender by the district magistrate.
- If transgender does not provide any certificate from district magistrate then there is no law or provision regarding appeal or review against the order of the magistrate.
- The standing committee does not establish any role of chief medical officer in the process of getting the certificate of transgender which led to misuse of the certificate. However, the 2019 bill removes the provisions for the district screening committee and lets the powers lay only on district magistrate.
- The criminal, as well as civil laws only, recognize two kinds of gender that is men and women, the bill 2019 recognizes the third gender the transgender but it does not clarify whether other laws will prevail on the third gender or not.
- The bill only emphasizes or declares punishment only on nine types of offences but the crimes and offences are multi-dimensional and it cannot be rigid under only nine types.
- The bill does not include any reservation. Hence to develop and uplift the transgender, the reservation is required.
- There is lighter punishment for higher crimes which means the bill only imposes a maximum of two years of punishment whether it is sexual or verbal abuse. This is one of the biggest loopholes in the bill.
- The commission for the welfare of transgender is established only on the national stage. Therefore, only the national commission is not enough for the welfare or development of the transgender.
- The bill states the sex-selective reassignment surgeries will also lead the people to become transgender. This has been criticized by many activists, they say the bill is forcing people to have nonconsensual surgeries and encourage them to have surgeries.
The transgender people bill, 2019 has come by a lot of discussion in the society as well as The Parliament, a lot of revisions, amendment took place. The legislature has done its best according to the orders by The Supreme Court of India. However, the bill still left more questions unanswered and unsolved than the concern it aims to address, and the bill may not be very helpful for the transgender community and the bill is also required to reconsider because of its shortcomings.
There are many more lacunae in the Transgender Persons (Protection of Rights) Bill 2019, which were not addressed by the RajyaSabha in their haste. In the days leading up to its passage, many from the community also took to the streets and social media, asking the
RajyaSabha to slow down and reconsider by referring the Bill to a select committee, but it seems their cries have gone in vain.
Since the Bill was passed, the transgender community and their allies in cities like Bengaluru, Delhi, and Pune have erupted in protest, urging President Ram NathKovind not to give his assent, which if he does, will turn the Bill into an enforceable Act – something that spells despair for most of the transgender community.
- The Transgender Persons (Protection of Rights) Bill, 2019. (LINK- http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf )
- WEBSITES- Insights on the Transgender Bill 2019 (https://www.insightsonindia.com/2020/01/13/transgender-persons-protection-of-rights-act-2019/)
- BOOK- Transgender history, by Susan Styker, Published in 2008, Publisher- Basic Books.