The Transgender Persons (Protection of Rights) Act | 31 Dec 2018

Last Updated: October 2022

Why in News?

• The Parliament passed the Transgender Persons (Protection of Rights) Bill, in 2019.

Who is a Transgender?

• According to the Act transgender means a person whose gender does not match with the gender assigned to that person at birth.
• It includes trans-person with intersex variations, gender-queer and person having such socio-cultural identities as kinnar, hijra, aaravani and jogta.
• India’s 2011 Census was the first census in its history to incorporate the number of ‘trans’ population of the country. The report estimated that 4.8 million Indians identified as transgender.

What Issues do the Transgender People Face?

• Lack of Legal Protection: They are subjected to custodial violence, dereliction of duty by state and overall apathy to their issues such as educational, residential, medical and employment.
• Poverty: Lack of legal protection translates into unemployment for transgender people. They’re denied services and experience high rates of unemployment, housing insecurity and marginalisation.
• Harassment and Stigma: They are met with ridicule from the society and are considered mentally ill, socially deviant and sexually predatory.
• Anti-Transgender Violence: They are forced for gender conformism, aversion based pseudo-psychotherapies, forced marriages, stripping, physical and verbal abuse and are pushed into prostitution by their own families.
• Barriers to Healthcare: Their exposure to basic health care is minimal as they are subject to apathy from medical fraternity with professionals lacking transgender health care competency.

What is the Timeline of Reforms for Transgender Persons?

• In 2009, appropriate directions were issued by the Election Commission to all provinces to amend the format of the registration forms to include an option of “others”. This enabled transsexual people to tick the column if they didn’t want to be identified as either male or female.
• The Supreme Court in National Legal Services Authority Vs. Union of India (2014) recognized them as the “Third Gender”.
  • In the landmark ruling, Justice K.S Radhakrishnan observed that “recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue”.
• In 2014, the Rights of Transgender Persons Bill, was introduced as a private member’s Bill by the Dravida Munnetra Kazhagam MP Tiruchi Siva, and passed by the Rajya Sabha in April 2015.
• Recently, the Transgender Persons (Protection of Rights) Act, 2019 has been enacted.

What are the Key Provisions of the Bill?

• Prohibition Against Discrimination: The Bill prohibits discrimination of transgenders in relation to opportunities for education, job, health care services, and access to services etc.
• Right to be Recognized as Transgender: Every person has a right to be recognized as a transgender.
  • A certificate of identity has to be obtained from the District Magistrate, who will issue the certificate based on the District Screening Committee.
  • The Act calls for establishing a National Council for Transgender persons (NCT).
• Right of Residence: No transgender person shall be separated from parents or immediate family on the ground of being a transgender.

• Health Care: The Act also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.

  • It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.

• Penal Provisions: it criminalizes: (i) begging, forced or bonded labor (ii) denial of use of a public place; (iii) denial of residence in the household, village, etc.; (iv) physical, sexual, verbal, emotional and economic abuse.

What are the Challenges Associated with the Act?

• Transgender persons are not defined properly and the Act does not have any provision for self-determination of gender.
• The Act is silent on granting reservations to transgender person, going against the Supreme Court verdict in NALSA judgment in 2014 which seeks to give reservation to transgender as socially and educationally backward classes.
• Begging is a way of life for transgender as they dance or sing and earn money. However, the act criminalizes begging by making it an offence without taking alternative affirmative action for their social security.
• It sets lighter consequences for discrimination and assault on Trans people compared to cis-gender people which prescribes jail sentence of 7 years for sexual assault on women.
• The Act treats transgender as victims rather than an empowered subject with rights.
• The Standing Committee’s concerns about recognizing rights in marriage, divorce and adoption of transgender person have not been addressed.
• The Act violates the transgender’s constitutional Right to Freedom of Residence under the Article 19 as they must either stay with their parents or approach a court.

What More Can be Done to Uplift the Transgender Persons?

• Transgender-Inclusive Policies: Legal and the law enforcement systems need to be empowered and sensitized on the issues of Transgender community.
  • Inclusive approach for Transgender must be planned and adopted by the Government and society.
  • Their grievance of being not included in policies formulation or decision making needs to be allayed and chances for their public participation should increase.
• Addressing Social Concerns: Provision of free legal aid, supportive education, and social entitlement must be ensured for the Transgender community at ground level as suggested by NALSA Judgement.
  • Separate policies related to health care must be framed and communicated in all private and public hospitals and clinics.
  • There is a need to increase awareness and inculcate sense of respect and acceptance for transgender community.
• Financial Security: Liberal credit facilities and financial assistance must be ensured to start up their career as an entrepreneur or businessman.
• Transgender in Prisons: Awareness and documentation are two important tools to address the reforms in reference to sexual minorities, especially trans prisoners.
  • As the Commonwealth Human Rights Initiative (CHRI) advocates, there is a need for a gender-fluid approach for the treatment of transgender prisoners.
    • The CHRI’s recommendations should be considered by the Union government to bring a ‘model policy’ on the special needs of trans prisoners, through a consultative process with the members of the trans community, to honour the mandate of the NALSA judgement.