TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2018 – BILL – INDIA

The Transgender Persons (Protection of Rights) Bill, 2018 was first introduced in 2016, in the lower house of Parliament (Lok Sabha). The 2018 bill was passed with amendments to the 2016 version.

The Bill aims at protecting the rights of transgender persons and provides for their welfare.

It defines ‘transgender persons’ as persons whose gender does not match with the sex they were assigned at birth. It holds the right to self-identify gender, irrespective of whether one has undergone Sex Reassignment Surgery (SRS) or any therapy. This definition includes intersex persons, genderqueer persons, kinnars, hijra, aravani and jogta.

RECOGNITION OF IDENTITY:

The Bill states that transgender persons have the right to self-identify their gender. It also sets out the procedure to obtain a certificate of identity as a transgender person. The District Magistrate must issue a certificate of identity which declares that a person is “transgender”. This certificate must be based on the recommendations of the District Screening Committee.

The Screening Committee will issue a certificate of identity indicating one’s ‘gender’ as ‘transgender’ where the applicant has not undergone sex-reassignment surgery (SRS). Where a transgender person has undergone SRS, the Screening Committee can issue a certificate indicating gender as ‘male’ or ‘female’. The Magistrate can issue the revised certificate without the recommendation of the District Committee.

This procedure, which provides for separate certificates depending on the applicant’s surgery status has been criticised for violating the principle of self-identification of gender under NALSA vs. Union of India.

WELFARE MEASURES BY THE GOVERNMENT:

The Bill mandates the appropriate Governments to take steps to protect the rights and interests of transgender persons. It also requires the government to increase access to welfare schemes. It directs the government to formulate non-stigmatising and non-discriminatory welfare schemes, cultural and recreational activities for transgender persons to facilitate societal inclusion.

OBLIGATIONS OF ESTABLISHMENTS:

The Bill states that establishments shall not discriminate against transgender persons with respect to employment, including recruitment and promotion. Further, it states that every establishment should appoint a complaints officer to address violations of the provisions of the statute based on complaints made by transgender persons.

Further, the statute recognises that transgender persons have specific rights related to their household and immediate family. These include:

  • right to not be separated from their immediate family because of their gender identity.
  • right to reside in the household where immediate family members reside,
  • right against exclusion from the household, and
  • right to enjoy and use the facilities of the household.

On the other hand, the Bill also provides that the appropriate court can direct place a transgender person in a rehabilitation centre in case their family members cannot take care of them.

EDUCATION, SOCIAL SECURITY, AND HEALTHCARE:

The Bill directs all educational institutions to provide inclusive education to  transgender persons. However, unlike the 2014 Bill, it does not provide reservations for transgender persons in education and public employment. Appropriate governments are also required to specifically frame welfare schemes for vocational training.

With regard to healthcare, the Bill proposes measures such as establishing HIV sero-surveillance centres, providing medical care for Sex-Reassignment Surgery (SRS), hormonal therapy, counselling and comprehensive insurance schemes for medical procedures. In addition, it directs the appropriate government to publish a health manual on SRS and review medical curriculum to cover trans-specific issues.

A National Council for Transgender Persons is tasked with a range of functions, including: (a) advising the Central Government on creating policies and programmes for transgender persons; (b) monitor their implementation and impact; (c) coordinate activities of various departments of Governments for transgender persons; and (d) act as a grievance redressal body.

OFFENCES AND PENALTIES:

The bill criminalises all forms of violence or abuse against transgender persons, whether physical, sexual, verbal or emotional. In addition, it punishes any person who obstructs a transgender person’s access to a public space or forces a transgender person out of their residential space.

The Bill also penalises any person who entices a transgender person to engage in begging or bonded labour. Although this aims at curbing the practice of compelling a transgender person into begging, it has been criticised for criminalising one of the core forms of livelihood for transgender persons.

Further, all offences under the Bill are punishable with imprisonment for a minimum of 6 months, extendable to 2 years with fine. Critics note that this is significantly lower than comparable penalties under other criminal statues for similar offences. For instance, Section 376 of the Indian Penal Code prescribes a significantly higher punishment of 7 years where a woman is sexually assaulted.

STATUS AND RESPONSE: 

The Bill is pending before the parliament. Its passing in the Lok Sabha was met with protests in several states across India.

 

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