THE EFFECTIVENESS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016 TO ELIMINATE DISCRIMINATION
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.
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