The transgender community is facing discrimination and social stigma for the last several years in India. The government of India finally introduced ‘Transgender Persons (Protection of Rights) Bill 2019’ to ensure socio-economic justice to them. The Bill seeks to provide protection and equality for transgender persons. Besides defining the term ‘transgender person’ it also prohibits discrimination against them by establishing mechanisms at both central and state level for this purpose. As per the Census of 2011, the total population of Transgender in India is 4.9 lakh.
Definition of a transgender person: The Bill classifies any discriminatory behaviour against a transgender person on the basis of gender identity as an offence. It makes it clear that a transgender person, irrespective of whether he or she identifies as male, female, both or neither, should have an equal right to access public spaces and is entitled to the same protection of law as every other citizen.
Certificate of identity: The bill makes it clear that the gender identity of a transgender person will be decided solely based on self-identification. For this, a transgender person needs to submit an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
Prohibition against discrimination: The Bill is an effort to prohibit discrimination against transgender persons. It also seeks to provide safeguards for the transgender persons against sexual harassment and establish their right over their body—to define themselves as a man, woman, or a third-gender and give them the right to decide their self-identified gender.
Health care: The Transgender Persons (Protection of Rights) Bill 2019 aims to promote the rights and welfare of transgender persons, provide for their welfare and protection, prevent transgender identity from being a ground for harassment, and for matters connected therewith or incidental thereto. The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centers, and sex reassignment surgeries.
Punishment: The Bill prohibits the discriminatory treatment of transgender persons and their exploitation, with imprisonment of six months to two years and a fine.
Welfare measures by the government: The objective of the bill is to provide a social safety net and welfare measures to ensure the full inclusion and participation of transgender persons in society.
National Council for Transgender persons (NCT): The bill seek to establish NCT for the cause of transgenders. National Council for Transgender Persons (NCT) is a statutory body to deal with all matters relating to transgenders, including welfare, social, educational and economic issues.
This bill does not go far enough to protect transgender persons who are subjected to abuse relentlessly, and with relative impunity. Gender identity is the gender with which a person identifies or feels that he belongs. It is different from sexual orientation which is about individuals’ sexual attraction towards others.
The Transgender Persons (Protection of Rights) Bill 2019 does not mention any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.
The absence of affirmative provisions for legal recognition of self-defined gender identity leaves a huge population of India’s transgender persons without legal recognition. It also violates the fundamental right to equality before law and equal protection of the laws as guaranteed under Article 14 of the Indian Constitution. This lacuna will also result in discrimination when it comes to marriage, property rights, parental rights, adoption rights and in armed forces recruitment.
The Bill recognises certain categories of crimes committed against transgender persons, all of which are punishable with imprisonment of up to two years. The Bill does not fully recognise the range of violence they face, and does not provide for sentences commensurate with their gravity.
Each year thousands of crimes are committed against transgender persons, but not all of them are legally recognized. National and international bodies have emphasized the need to either remove gender from criminal offenses or provide for specific measures to protect transgender persons.
The Bill does not specifically recognise, and provide appropriate penalties for, violence that transgender persons face from officials in educational and health care institutions, police stations, jails, shelters and remand homes, or other places of custody.
The current bill fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity. This section will first consider how courts and tribunals have sought to protect against discrimination against trans or gender non-conforming individuals. It will then turn to look at legislative provisions and protections enacted by other countries.
The Indian government is in the process of tabling legislation for transgender persons. Currently called the Transgender Persons (Protection of Rights) bill, it needs to be renamed the Rights of Transgender and Intersex Persons Bill, and expanded to include intersex persons explicitly in its text.
The transgender community, which is already marginalised, feels harassed and discriminated against by the current bill. The bill should be revised to emphasise training teachers to help them adopt inclusive teaching methods to ensure that children are not harassed or discriminated against by staff or other children.
The government should implement stigma and discrimination reduction measures through a variety of ways from mass media awareness for the general public to focused training and sensitization for police and health care providers. In terms of security provision against violence, more protection by establishing special security units within police stations or shelters is needed.
India should learn from the experiences in other countries and draw lessons from them to ensure socio-economic justice Transgenders, a state of being where an individual’s gender identity and biological sex are not congruent. These are indeed difficult times for transgenders in India where they have to fight against social prejudices and discrimination from the society that is threatening their life on a daily basis.