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Tuesday, August 04, 2020

Transgender law: Centre publishes draft rules, activists say law problematic

The Transgender Persons (Protection of Rights) Act, 2019, was passed last year in Parliament amid criticism from transgender rights activists and protests by the LGBTQ community.

Written by Esha Roy | New Delhi | Published: July 15, 2020 2:48:39 am
The community has maintained that the rules will do little to allay fears of continued discrimination with their initial protests ignored by the government. (File)

The Ministry of Social Justice and Empowerment on Monday issued a notification publishing the draft Transgender Persons (Protection of Rights) Rules, 2020, and sought “objections and suggestions” within a 30-day period before the official gazetted notification.

The Transgender Persons (Protection of Rights) Act, 2019, was passed last year in Parliament amid criticism from transgender rights activists and protests by the LGBTQ community. The community has maintained that the rules will do little to allay fears of continued discrimination with their initial protests ignored by the government.

According to the Rules, all educational institutions are to have a committee which transgender persons can approach in case of any harassment or discrimination. The “appropriate government” is also required to take adequate steps to “prohibit discrimination in any government or private organisation or establishment, including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation and opportunity to hold public or private office,” as per the rules.

States will be responsible for “timely prosecution of individuals” charged under Section 18 of the Act which proscribes offences against the transgender community and penalties therein. These include bonded or forced labour, denying a transgender person the right of passage to a public place or obstructing access, forcing a transgender person to leave a household, village or place of residence, harming or endangering life, safety or well-being, and physical, sexual, verbal, emotional or economic abuse.

The offences would be punishable with imprisonment for six months upto two years, with a fine.

State governments will have to set up a Transgender Protection Cell under the District Magistrate and DGP to monitor cases of offences against transgender persons and implement Section 18.

However, Mumbai-based trans and queer activist Chitra Mathur said, “Section 18 in itself is problematic. Whereas for rape, the punishment is a seven-year term, for sexual offences against the transgender community it is merely a maximum sentence of a two-year term. The Minister has earlier said in a statement that this concerns sexual harassment only or “chhed chhaad”, but even if we consider this as an analogue to that, the sentence for rape has not been defined. Under Indian law right now, rape is defined as being done by a man to a woman… It is a complex issue which the government has decided to gloss over entirely.”

Pointing out that main objection to the Act and Rules has been the certification of transgender persons, Kolkata-based criminal lawyer and LGBTQ activist Kaushik Gupta said, “When the Act itself is so problematic, how will the Rules make things any better… The fight is about self-identification, where the transgender person can identify in whichever category he or she likes. Instead they have to fill forms and be certified as a transgender or any other category by a District Magistrate. While the community had approached the Supreme Court and the matter is pending, since there has been no stay from the court, the government could go ahead with the formulation of the rules.”

According to the 2019 Act and now the 2020 Rules, a transgender person needs to be certified as such by the DM. An application to the DM to be certified as a transgender can be rejected. And while there are processes for appeals, the process for the certification and appeal is both laborious as well as lengthy. An even more objectionable clause, which required a medical examination by a government-appointed doctor for a transgender person to be identified as such, has been scrapped by the government after protests.

“Before the Act came into place, anyone of us could simply go and file an affidavit declaring our identity. It was simple. The Act has made the whole process burdensome and contrary to rights of the transgender people. And also contrary to the Supreme Court ruling of 2014 which really gave the community agency and the dignity to self-identify. The Court ruling as well as a private members Bill in 2015 were in keeping with best practices being observed globally. This Act is not. For instance it does not take into account gender transitioning. I may identify as a female even before my gender transition, through hormones or surgery, is complete. According to this Act, I am only transgender after the transition is complete. I may not identify as a transgender person at all but as a female or male after my gender transition is complete. The government has not kept in mind the breadth of the community and simply clubbed everyone together under the same umbrella despite our differing needs,” said Mathur.

Since the transgender certificate will provide access to a member of the community to various social security schemes and health benefits from the government, many believe that the certificate is necessary.

“There are many of us who come from economically secure backgrounds and do not need these government benefits, which some in the community do, who come from economically weaker sections. We had suggested to the government to let the IDs of transgender people be self-identified and only have the certification when a member wants to avail of the government benefits. The fear was that of people fraudulently availing the benefits by pretending to be a member of the community, and we understand this. But our suggestion was entirely ignored,” said Mathur.

According to the Rules proposed by the government, state governments and UTs are to review all existing educational, social security, health schemes, welfare measures, vocational training and self-employment schemes to include transgender persons to facilitate their access to government welfare measures.

The Rules also make it mandatory for all establishments, public and private, to have equal opportunity policies which include transgender persons and provide for facilities on their premises such as unisex toilets and equal opportunity for employment to transgender persons.

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