Transgender Persons (Protection of Rights) Bill, 2019

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019

Author: Ms. Jyoti Jha, JEMTEC, School of Law

INTRODUCTION

A person’s sex is usually assigned at birth, but a relatively small group of persons may bear with bodies that incorporate both or certain aspects of both male and female physiology. This community includes very fewer people due to which they face discrimination. They are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws also faces discrimination to contest election, right to vote, employment, to get licenses, etc. and, in effect, treated as an outcast and untouchable.

EARLIER EFFORTS

The Rights of Transgender Persons Bill, 2014 was a private bill passed by  

• Seeks to provide a framework for the formulation and implementation of a comprehensive national policy for ensuring the overall development of the transgender and their welfare.
• 2% reservation in primary, secondary and higher education and in government jobs.
• Establishment of Employment Exchange, National and State Commissions for Transgender persons and Special Transgender Rights Court.
• No child who is transgender will be separated from his or her parents on the grounds of being a transgender except on an order of the competent court.
• Penalty for hate speech against transgender persons includes imprisonment extending up to one year and with a fine.

This bill is changed to provide a more effective piece of legislation for the rights of the Transgender. The government takes necessary steps in order to ensure that a transgender person enjoys the right to life with dignity and to personal liberty guaranteed by the Constitution of India.

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019

On Wednesday, the Union Cabinet approved the Transgender Persons (Protection of Rights) Bill, 2019, which provides a mechanism for social, economic and educational empowerment of transgenders by defining their identity and rights to prohibit discrimination against them. The Bill shall be presented before the Parliament in the earlier upcoming session.

The Bill will bring greater accountability on the part of the Central Government and State Governments/Union Territory Administrations for issues concerning Transgender persons. The Bill will make all the stakeholders also responsive and accountable for upholding the principles underlying the Bill.

The Section 19 under chapter VIII (Offenses and Penalties) of the Bill earlier read as, “Whoever compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by government” shall be punished with imprisonment not less than six months but which may extend to two years and with fine.

The word “begging” has now been omitted from the provision while the rest of the content remains the same, said a senior official from the Social Justice and Empowerment Ministry.

The previous provision of the bill which criminalized begging had drawn flak from the community members who said it had long been the primary source of their income and bringing in such legislation would take away their source of living without offering an alternative.

The provision that proposed that transgender people will be subject to certification by a District Screening Committee to be acknowledged as a transgender, has also been struck out.

According to the new provision, a transgender person may make an application to the district magistrate to obtain a certificate of identity and the DM shall issue to the applicant an identity certificate as a transgender person on the basis of the rules which will be formed once the Bill becomes an Act, the senior ministry official explained.

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.

TRANSGENDER CASE

The NALSA V. Union of India[1], is popularly called a transgender case. In this landmark judgment, the apex court provided various directions to be followed by the central and state in order to ensure the legal, fundamental and human rights of the people belong to the transgender community. Justice Radha Krishnan pronounced various guidelines which are:-

• Hijras, Eunuchs are to be treated as “third gender”.
• TGs have the right to decide their self-identified gender.
• Take steps to treat TG as socially and educationally backward classes of citizens in cases of admission in educational institutions and for public appointments.
• Governments to operate separate HIV Zero-Surveillance Centres.
• Governments to seriously address the problems faced by TGs.
• Provision for separate public toilets and appropriate medical care in hospitals.
• Governments to frame various social welfare schemes for the betterment of TG.
• Governments to create public awareness so that TGs will not be treated as untouchables.
• Take measures to regain the respect and place of TG in the society which they once enjoyed

Justices K.S. Radhakrishnan and A.K. Sikri recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual-gender structure of ‘man’ and ‘woman’ which is recognized by society. “Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling.

SECTION 377 OF IPC

Sec 377 of the IPC, 1860, prior to the enactment of the Criminal Tribes Act that criminalized all penile- non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices.  In the judgment of the Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 All 204, a transgender person was arrested and prosecuted under Section 377 on the suspicion that he was a ‘habitual sodomite’ and was later acquitted on appeal. In that case, while acquitting him, the Sessions Judge stated as follows:

“This case relates to a person named Khairati, over whom the police seem to have exercised some sort of supervision, whether strictly regular or not, as a eunuch. The man is not a eunuch in the literal sense, but he was called for by the police when on a visit to his village and was found singing dressed as a woman among the women of a certain family. Having been subjected to examination by the Civil Surgeon (and a subordinate medical man), he is shown to have the characteristic mark of a habitual catamite – the distortion of the orifice of the anus into the shape of a trumpet and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months.”

Even though he was acquitted on appeal, this case would demonstrate that Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras and was used as an instrument of harassment and physical abuse against Hijras and transgender persons.

CONCLUSION

Since the beginning of time and the existence of mankind, transgenders have been very much a part of society. It is just that they have been given a name and status in society in recent times. The NALSA case had played a major role after which 2014 Bill was passed and now. The Union Cabinet come up with a new bill having certain major amendments which will help to take strict actions against the wrongdoer and also help in effective implementation. Now, there is also medical technology available especially for them. Each being in-universe is different and one of the god creation which deserves respect, love, and dignity.

[1] WRIT PETITION (CIVIL) NO.604 OF 2013