THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016 – BILL – INDIA

The Transgender Persons (Protections of Rights) Bill was introduced in the Lok Sabha in 2016. The bill seeks to protect the rights of transgender persons and provide for their welfare.

The bill defines transgender persons as a person who is (a) neither wholly female nor wholly male; (b) a combination of female or male; and (c) neither female nor male. This definition violates the principle of self-identification of gender identity which was upheld in NALSA v. Union of India. Further, it states that a transgender person is someone whose sense of gender does not match with the gender assigned to them at birth. It includes trans-men and trans-women, persons with intersex variations and gender-queers.

The Bill prohibits discrimination on the basis of gender identity in providing education, employment and related matters, health care services, access to public goods and services, housing, movement, and right to hold private or public office.

SELF-IDENTIFICATION OF GENDER

The Bill recognises the right to self-identification of gender of transgender persons. Yet, it mandates a long procedure to get certificate of identity. First, the person should make an application before the District Magistrate (DM) for issuing certificate of identity. The DM shall refer to the recommendations of the District Screening Committee (Committee) for purpose of recognition.

On the basis of recommendations made by the Committee, the DM shall issue a certificate of identity. After obtaining a certificate of identity, if a transgender person wishes to change their gender, the person should make an application to the DM for a revised certificate. The transgender person can use this revised identity certificate to change their first name in the birth certificate and other official identity documents.

The Bill also clarifies that changing gender and obtaining a revised certificate will not affect the rights and entitlements of a person under the statute.

WELFARE MEASURES

The bill mandates the government to protect the rights and interests of transgender persons and institute welfare schemes for their benefit. It directs the government to secure full and effective participation of transgender persons and ensure societal inclusion.

Further, the government is required to take steps to rescue, protect and rehabilitate transgender persons and take steps to promote their participation in cultural and recreational activities.

OBLIGATIONS OF ESTABLISHMENTS

The Bill prohibits discrimination against transgender persons in any employment related matter. All establishments with 100 or more persons, including private establishments, are required to appoint a complaints officer to address the any concerns relating to violation of the statute.

The bill provides that the Central Government shall constitute a National Council for Transgender Persons. The council will perform a range of advisory and monitoring functions in relation to various programs and policies instituted for the benefit of transgender persons.

RIGHT OF RESIDENCE

This Bill also guarantees the right to residence. It states that a transgender person shall not be separated from their family because of their gender identity. Where the immediate family members are unable to provide care, the appropriate court can direct the transgender person to be sent to a rehabilitation home.

EDUCATION, SOCIAL SECURITY, AND HEALTH

The Bill states that all government and government aided educational institutions are obligated to provide inclusive education to transgender persons without discrimination. Further, the government must frame policies and welfare programmes for vocational training and self-employment.

In addition, the bill provides that the appropriate government must take measures to provide HIV sero-surveillance centres, medical facilities for sex re-assignment surgery (SRS), and a comprehensive insurance scheme for transgender persons. It also mandates that the government should review the medical curriculum and publish a health manual for transgender persons on SRS.

OFFENCES AND PENALTIES

The Bill identifies and punishes four main offences – (a) forcing a transgender person to indulge in begging or forced labour; (b) denying a transgender person the right of passage to public space; (c) forcing a transgender person to leave a house or any place of residence; and (d) injuring or endangering the life, safety and health of a transgender person and causing physical, mental, sexual, verbal and emotional abuse.

All of the above offences are punishable with imprisonment of 6 months to 2 years and fine. This punishment is significantly lesser than the punishment prescribed for similar offences under other statutes such as the Indian Penal Code, 1860.

Though the Bill was introduced to empower transgender persons, critics have claimed that fails the community. They have also argued that the definition and manner of obtaining an identity certificate dilutes the right to self-identification of gender recognised by the Supreme Court in NALSA vs. Union of India. This Bill was passed by the Lok Sabha in December 2018 with 27 amendments.

READ THE FULL TEXT HERE