Transgender is not a new section of the society. They are present in the world from times immemorial. Transgender community mainly comprises of Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc., the existence of Eunuchs can be traced back to 9th century BC. It is a Greek word meaning there by “Keeper of the bed" .In Indian context scriptures like Vedas (1500 BC - 500 BC), Manu Smriti (200 BC - 200 AD), Mahabhaya (200 BC), and Patanjali's work on Sanskrit grammar recognized three genders. The status of transgender was not discriminatory from the very beginning; rather they had a respected position in medieval India especially in the Mughal Period. The societal position of the Transgender was started to decline during the British Rule. Though, initially they were granted protections and benefits by some Indian states. However, in the second half of the 19th century, the British colonial administration vigorously sought to criminalize the hijra community and denied them the civil rights.
Subsequently, the benefits such as the provision of land, rights of food and smaller amount of money from agricultural households in exact area were ultimately removed through British legislation because the land was not inherited through blood relations. In post independent era the people of this community were discriminated and victimized vehemently.After a long span of time on 15 April, 2014 the Supreme Court of India passed a landmark ruling recognizing transsexuals as a third gender in the land mark judgment of NALSA Vs. Union Of India, (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) and upholding their rights to equality (Article 14), non-discrimination (Article 15), expression (Article 19(1)(a) and autonomy (Article 21). There is a vivid discussion of international law and domestic legislations of various countries in the judgment, it also sheds lights on evidences showing actual discrimination against transsexuals in Indian society and strongly highlights the idea of human rights.
At the international level United Nations has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. Article 6 of the Universal Declaration of Human Rights(UDHR), 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks.
International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations, took a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to State’s human rights obligations. A distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is unanimously adopted the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. Yogyakarta Principles address a broad range of human rights standards and their application to issues of sexual orientation gender identity.
In the light of this, the introduction of The Transgender Persons (Protection of Rights) Bill, 2016 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot in Lok Sabha on August 2, 2016 would be a landmark step in elimination of discrimination against Transgender community. It is pertinent to note that the upper house (Rajya Sabha) has already passed the bill. The legislation is modelled on the private members’ Bill moved by Rajya Sabha MP Tiruchi Siva and passed by the Upper House on April 24, 2015.. The importance of a private member bill can be understood from the impact they make on the government and public at large. Any Member of Parliament who is not a minister is a private member and he or she can submit a legislative proposal for enacting as a law.
In the above mentioned bill a transgender person is defined as, one who is neither wholly female or male; a combination of female and male; or neither female nor male. Such a person’s gender does not match the gender assigned at birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers. The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to, education; employment; healthcare; access to, or enjoyment of goods, facilities, opportunities available to the public; right to movement; right to reside, rent, own or otherwise occupy property; opportunity to hold public or private office; and access to a government or private establishment in whose care or custody a transgender person is.
The bill guarantees the right of residence, it ensures every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court. Moreover, it addresses the issue of employment; it says no government or private entity can discriminate against a transgender person in employment matters, including recruitment, promotion, etc. If the entity has more than 100 persons, it is required to designate a person to be a complaint officer to deal with complaints in relation to the act.
In addition to this, it ensures the right to education, as per the bill educational institutions funded or recognized by the government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination. It also ensures the aspect of health care; it states that government shall take steps to provide health facilities to transgender persons including separate HIV surveillance centers, sex reassignment surgeries, etc. The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
This bill stipulates some criteria for the identification of transgender, the Certificate of identity for a transgender person must be issued for identification. For obtaining the same a transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. The District Magistrate will issue such certificate based on the recommendations of a District Screening Committee. The Committee will comprise of: (i) the Chief Medical Officer; (ii) District Social Welfare Officer; (iii) a psychologist or psychiatrist; (iv) a representative of the transgender community; and (v) an officer of the relevant government. Additionally, the bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
The said bill has penal provisions for better implementation. The Bill recognizes the following offences, begging, forced or bonded labour (excluding compulsory government service for public purposes); denial of use of a public place; denial of residence in household, village, etc.; (iv) physical, sexual, verbal, emotional and economic abuse.
Apart from that, the bill advocates the establishment of National Council for Transgender persons (NCT),this would be an advisory body to advise central government on the formulation and monitoring of policies, legislation and projects with respect to transgender persons. This council will consists of Union Minister for Social Justice (Chairperson); Minister of State for Social Justice (Vice- Chairperson); Secretary of the Ministry of Social Justice; one representative from ministries including Health, Home Affairs, Minority Affairs, Housing and Poverty Alleviation, Human Resources Development, etc. Other members include representatives of the NITI Aayog, National Human Rights Commission, and National Commission for Women. State governments will also be represented. The Council will also consist of five members from the transgender community and five experts from non-governmental organizations.
With all the progressive provisions in the bill there are various shortcomings in the bill which must not be ignored and needs to be addressed with intellectual discourse and debate. First of all, the definition of the transgender was not at par with the precedents laid down by the Supreme Court as under the current definition the usage of the phrases like “”transgender person” has been categorized as— (a) neither wholly female nor wholly male; or (b) a combination of female or male; or (c) neither female nor male. This by itself is both “inappropriate and derogatory”.
Secondly, the crucial issues affecting the large transgender population in India such as infliction of violence by families, police, lack of availability of a complaint mechanism etc. has not been incorporated in the bill. Thirdly, an important issue which has been ignored is the exclusion of transgender communities—each with its own set of beliefs, practices etc. as opposed to recognition of only a transgender individual under the bill. At last, the bill has to strike a fine balance with hugely controversial Section 377 of the IPC, 1860 that criminalizes homosexuality. Hence it can be said that though this bill is a welcoming step taken by government but must be not be passed as a weak law, rather reconsidered and the necessary sensitive issues must be incorporated.