A background and the provisions of the Transgender Persons Bill:
For whom is the Bill meant, and what is it supposed to ensure?
The crux of the Transgender Persons (Protection of Rights) Bill, 2016, is its recognition of gender identity as a non-binary. For the first time, a proposed legislation acknowledges the fact that the gender assigned at birth may not necessarily match the person’s own sense of the gender they belong to. The Bill allows a transgender person to identify himself/ herself as ‘man’, ‘woman’ or ‘transgender’, while doing away with the nomenclature ‘Other’ that is currently in use. The term ‘transgender’ refers to all those who differ in behaviour and appearance from the usual gender stereotypes. It includes transsexuals, transvestites (cross-dressers), intersexed individuals and gender queers. In the Indian context, it also includes social identities such as hijras, kinnars, aravanis, jogtas, Shiv-shaktis and aradhis. In a landmark ruling in 2014, the Supreme Court recognised transgender as a third gender; in June 2015, the court clarified the term does not cover gay, lesbian and bisexual persons.
What are the main features of the Bill?
It protects transgenders from discrimination in education, employment, and the right to rent or buy property. Offenders can be jailed for 6 months to 2 years, and fined. The Bill paves the way for a comprehensive healthcare strategy for transgenders, including mandating that the government should provide for sex reassignment surgery, hormonal therapy, counseling, separate HIV sero-surveillance centres, and insurance schemes. It aims to ensure that such children are not separated from their families due to social stigma. In cases of abandonment, the state will provide rehabilitation centres. The Bill requires the government to create vocational training and welfare schemes for such persons. Unlike an earlier draft of the Bill, the legislation introduced in Lok Sabha on Tuesday makes no commitments on transgender students scholarships or pensions for the elderly, but leaves it to the government to formulate such schemes from time to time.
How did the Bill come about?
In 2012, the National Legal Services Authority (NLSA) filed a PIL in the Supreme Court stating that the third sex were deprived of the fundamental rights available to men and women. Another PIL filed in the same year by Salvation of Oppressed Eunuchs asked for the Bombay High Court’s intervention to extend some safeguards provided under existing laws to transgenders as well — these included extending the Bonded Labour System (Abolition) Act, 1976 to eunuchs forced by their ‘gurus’ into servitude, and modifying section 375 so as to include sexual crimes against transgenders in the definition of ‘rape’. The following year, another petition was filed in the Supreme Court seeking a policy for the betterment of the kinnar community.
In the wake of these PILs, the union government constituted an expert committee with officials of the Ministry of Social Justice and Empowerment — which was designated as the nodal Ministry for transgenders in 2012 — and representatives from the transgender community, as well as Ministries of Health, External Affairs and Law & Justice. The panel submitted its report in January 2014 — many of its recommendations form the basis of the Bill. The genesis of the government’s Bill, however, lies in the Bill introduced by DMK MP Tiruchi Siva, which in April 2016 became the first Private Member’s Bill to be passed by the House in 45 years. Following the passage of the Bill in Rajya Sabha, the government said it would soon come up with its own version of the legislation.
So, what are the shortcomings of the proposed Bill?
The Bill lacks several of the progressive provisions of the Private Member’s Bill. There is no provision for National or State Commissions for transgender persons, a suggestion made both by Siva as well as several members of the expert panel. The Bill provides for a National Council for Transgender Persons with the union Minister for Social Justice as its ex officio chairperson. A Council, however, lacks the powers of a Commission, which is statutory in nature. “The Bill also has no provisions for special transgender rights courts,” said Siva. The Bill moved this week is also silent on any kind of reservations for transgender persons.
What are some of the legislative safeguards the community enjoys nationally and internationally?
Laws that in varying degrees recognise gender identity and sexual orientation as being different from biological sex and binaries are in force in countries such as Australia and Argentina. Canada introduced a new law coinciding with the International Day against Homophobia, Transphobia and Biophobia Day in May this year, making offences against transgenders a hate crime. In the US, while a federal Bill to protect gender-variant workers from discrimination is pending for over two decades, some states and cities including New York have passed their own non-discrimination ordinances. However, North Carolina has restricted access for transgender people to only those bathrooms in government buildings and public schools that correspond to the gender on their birth certificate.
In India, Tamil Nadu has achieved a milestone in ensuring transgender rights by constituting the Aravanis Welfare Board in 2008, providing pensions for the community and creating awareness in schools on gender-variant people by inviting community members and counsellors to talk to students.