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By Satya Prakash
ALMOST 69 years after the commencement of the Indian Constitution, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill last month to put in place a legal framework to end discrimination against the community.
The Bill, which provides for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto — comes four years and eight months after the Supreme Court directed the Central Government and state governments to take steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their fundamental and statutory rights.
“Transgender community is one of the most marginalised communities in the country because they do not fit into the general categories of gender of 'male' or 'female'. Consequently, they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on,” reads the Statement of Objects and Reasons of the Bill.
Notwithstanding constitutional guarantees of right to equality (Article 14), right to non-discrimination, including those on the ground only of sex (Article 15) and right to free speech (Article 19)1)(a) and above all right to live with human dignity (Article 21), the transgender community has been subjected to discrimination and atrocities for decades.
Article 17 bans untouchability and Article 35(a)(ii) empowers and mandates Parliament to make laws prescribing punishment for acts declared to be offences under Part-III of the Constitution i.e. Fundamental Rights “as soon as may be after the commencement of this Constitution”.
Accordingly, it enacted the Untouchability (Offence) Act, 1955 which was amended as "Protection of Civil Rights Act, 1955 in 1976 and it was finally replaced by stringent SC, ST (Prevention of Atrocities) Act, 1989. Unfortunately, the mandate of Article 35(a)(ii) was not followed in case of transgender community which had to wait for a judicial reminder from the Supreme Court to Parliament and the Government to get what was long overdue to it.
The Bill seeks to define a transgender person and prohibit discrimination against such person. What is important is that it confers a right upon transgender person to be recognised as such i.e. a right to self-perceived gender identity and any such person shall be issued a certificate of identity.
It defines "transgender person" as a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with inter-sex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
It provides that no establishment shall discriminate against transgender persons in matters of employment, recruitment, promotion and other related issues and seeks to create a grievance redressal mechanism in each establishment, including establishment of a National Council for Transgender with Union Minister for Social Justice and Empowerment as its chairperson to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons.
Violation of the law would entail imprisonment for a term ranging from six months to two years with fine. It puts an obligation on the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society by taking necessary measures to protect their rights and interests and facilitating their access to welfare schemes and programmes which are transgender-sensitive, non-stigmatising and non-discriminatory.
Besides providing for non-discrimination in education and jobs, the Bill also mandates the government to formulate welfare schemes and programme to facilitate and support livelihood for them, including their vocational training and self-employment.
It also seeks to take care of their health as it expects the government to set up separate human immunodeficiency virus sero-surveillance centres to conduct sero-serveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf and provide for medical care facility, including sex reassignment surgery and hormonal therapy for them.
But Parliamentary Standing Committee which examined the Bill has flagged certain issues, including the process of certification for a transgender person. It has also recommended granting reservations under the category of socially and educationally backward classes and recognition of civil rights such as marriage, partnership, divorce and adoption.
Despite shortcomings, the Bill is in tune with global trend of a shift towards rights-based society. Once enacted, it will go a long way in ending discrimination against a community that has been a part of social, religious and cultural tradition in India for centuries.
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