Significance: The Union Cabinet approved the Transgender Persons (Protection of Rights) Bill 2016 for introduction in Parliament. It is expected to bring social, educational and economic empowerment to the transgender community. It could mean a chance to live a life of dignity and equality for a community that has been ostracised and discriminated against for so long. Transgender Persons Bill, 2016 was reintroduced in the Winter Session of Parliament that began on December 15 after making significant changes to the original bill introduced by Tiruchi Siva in 2014.
Highlights of the bill:
- Definition of transgender: The Bill defines a transgender person as one who is partly female or male or a combination of female and male and includes trans-men, trans-women, persons with intersex variations and gender-queers.
- Recognition: A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and invoke rights under the Bill.
- Recognition Committee: Certificate would be granted by the District Magistrate on the recommendation of a Screening Committee. The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
- Non-discrimination: It prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas.
- Penal Offences: 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.
Issues of the bill:
- Flawed Identification: NALSA judgment of the Supreme Court was progressive in its expansive understanding of the transgender identity. The new version of the bill has a narrow definition and do not include those who identify themselves by a gender other than the one assigned to them at birth.This definition restricts the right of a transgender person to have the option of choosing to identify themselves either as a “man”, “woman” or “transgender”.
- Flawed recognition process: An issued certificate will be used as the basis for recording gender in all official documents and will be the basis for conferral of rights as a transgender person. The issue here is that providing for such an onerous procedure stands in violation of the self-identification principle. The Supreme Court has even held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution. It is a mechanism that has been strongly contested in various civil society suggestions submitted to the ministry.
- Transgender groups have argued that such a certificate could be used for the specific process of channelling entitlement to individuals. However, to make it the very basis for otherwise recognising transgender identity in any given document again strikes at the heart of NALSA.
- No definition of discrimination: The bill is progressive due to the fact that it prohibits discrimination against transgender persons in the fields of education, healthcare etc. But strangely, it fails to provide a definition of discrimination, to begin with.
- Inadequate enforcement provisions: Lack of enforcement provisions undermine the provisions contained in the law. It makes equality, right to live with dignity for the transgenders a distant dream. It is a problem that has plagued earlier iterations of the law as well and even constant advocacy from civil society on this front seems to have left no mark on the government.
- Lack of vision: is evident in the bill. Because transgenders are prohibited from begging as an income source. The act of begging is criminalised and it does not reflect the true nature of transgenders as begging is their only guaranteed source of income.
- No reservation: The Supreme Court had actually directed the state and the Union governments that transgender persons should have a reservation in jobs and education. But the current bill from the Union government doesn’t talk about that. In 2014, the Supreme Court in National Legal Services Authority v. Union of India pointed out that reservation is one of the time-tested ways of enabling historically disadvantaged populations to join the mainstream.
- Not international standard: The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India.
Recent instances: The experience so far has been that many who struggle to access jobs are discriminated against, forcing them to drop out. For example, in May, when the Kochi Metro Rail Limited formally employed 23 transgender persons, eight of them dropped out after being unable to find suitable accommodation based on the monthly wages they drew. Many households were unwilling to let out their houses to them. They faced other forms of discrimination too.
Conclusion: There are discriminatory feelings towards transgender persons that worry transgender person that worry them about their right to property, adoption, marriage, pension, and care for the old and the disabled. Some of these issues may be resolved when the Bill is passed. However, it should include an effective enforcement standard along with guaranteed reservations to bring a greater equality in the society and to keep up with international standards. The Bill could be the first big step towards equality and their recognition in the mainstream.