By Aryan Bhat
---
On 5 August 2019 the Parliament passed the Transgender Persons (Protection) Bill, making it the first piece of legislation which specifically caters to transgender persons as a class of citizens. The Act recognizes many rights of the transgender community and also obligates the State to take various steps to ensure the inclusion of the community with the social mainstream. While the Act has been criticized for many reasons, such as not providing any remedies for breach of rights or for not including many other crucial measures like providing reservations in public employment and higher education for transgenders as was directed by Supreme Court in its historic judgement in NALSA v. Union of India (AIR 2014 SC 1863), it can still improve the socio-economic status of the transgenders to a significant extent if the present provisions are well-implemented.
Q. Who is a transgender under this Act?
The Act defines a transgender person as the one whose gender is not the same as what was assigned to that person at the time of birth. It also includes persons with intersex variations i.e. a person whose genitalia, hormones, sexual characteristics or chromosomes are different from the “normative standard” of male and female body or what is considered as the binary idea of sex as either male or female. For instance, instead of being born with either XX chromosomes (associated with female) or XY chromosomes (associated with male), an infant could be born with XXY chromosomes too. Further, the definition also includes genderqueers and those with similar socio-cultural identities in the Indian society and to trans-men or trans-women, irrespective of whether they have undergone any sex reassignment surgery or hormone therapy or any other therapy yet.
Note that the Act does not recognize any difference whatsoever between transgender and intersex and subsumes the identity of the latter into the former.
Q. How to identify oneself legally as a transgender?
The person has to obtain a certificate to be legally “recognized” as a transgender under the Act. The person shall make an application to the District Magistrate of the concerned district for issuing a certificate of identity in this regard. The gender mentioned in the Certificate of Identity shall be entered in all official documents of the person. This certificate is a proof of identity as a transgender and shall be used to confer all rights available to transgenders under this Act.
If a person also undergoes surgery for change of gender to male or female, after issuance of such certificate, the person shall write an application, along with the certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution where the person underwent the surgery, to the District Magistrate for a revised Certificate of Identity. The DM, upon being satisfied of the correctness of the application, shall then update the certificate showing the change in gender. The person shall also be entitled to change of name in the birth certificate and all other official documents relating to such person’s identity.
Welfare Measures to be taken by the Government
The Act mandates the Central as well as State Governments to take steps to ensure full and effective participation of transgenders and complete inclusion in the society. Welfare measures shall be taken by the Government to:
- Protect the rights and interests of transgender persons and provide them full access to welfare schemes framed by the Government
- Promote and protect the rights of transgender persons to participate in recreational and cultural activities
- Rescue, protect and rehabilitate transgender persons to address their needs
Obligations of Establishments and Other Persons
“Establishment” in this context is of a very wide import. It refers to any authority or body established by the Government under any Central or State Act or any authority or body controlled, aided or owned by the Government, any Government Company and also any Department of the Government. It also refers to any private association, trust, agency, institution, body corporate, firm, cooperative or any society or to person.
No establishment can discriminate against any transgender in any employment-related matter relating to promotion, recruitment etc. A complaint officer shall be designated by each establishment to deal with complaints relating to any violation of the provisions of the Act.
The Act also provides that transgender children cannot be separated from the family on grounds of being a transgender unless an order is issued by a competent court, in the child’s interests. It even recognizes the rights of transgenders to reside with their parents and other immediate family members and to enjoy and use all facilities of the household in a non-discriminatory manner.
Education and Healthcare
The Act requires every educational institution, funded or recognized by the Government, to provide inclusive education and opportunities to participate in sports, recreation and leisure activities to transgenders without any discrimination on an equal basis with others. The Government shall also take the following measures:
- Provide medical care including sex reassignment surgery and hormonal therapy
- Facilitate access to transgender persons in hospitals and other healthcare centers
- Review of medical curriculum and research for doctors to address their specific needs
- Set up HIV sero-surveillance centers to conduct sero-surveillance for such persons in accordance with the guidelines issued by AIDS Control Organization
- Comprehensive insurance scheme to cover the medical expenses for laser therapy, hormonal therapy, sex reassignment surgery or any other specific health-related issues of the transgenders
Offences and Penalties
Forcing transgender persons into bonded labour or to leave the village/household, harming/injuring the life, safety, health or well-being of a transgender, or indulging in sexual, physical, verbal and economic abuse, or denying any transgender person the right to passage or equal access to a public place are offences that can attract imprisonment for a minimum term of six months and maximum term of two years with fine.
Note that the punishment for offences against transgenders is less than the same offences if committed against cisgenders. For instance, the Bonded Labour (Abolition) Act 1976 prescribes maximum imprisonment up to 3 years. For rape too, the maximum penalty could be life imprisonment. Against transgenders however, the same offences attract maximum imprisonment up to 2 years.
National Council for Transgender Persons
The Central Government shall constitute a National Council for Transgender Persons under the Act through a notification. The functions of the Council shall include:
- To advise the Central Government on the formulation of policies, programs, projects and legislation with respect to transgenders
- To monitor the impact of policies and programs designed for ensuring maximum participation and full equality of transgender persons
- To coordinate the activities of all the departments of Government and other Governmental and Non-Governmental organizations which are dealing with matters relating to transgender persons
- To address grievances of the transgender persons
- Any other function prescribed by the Government later
---
Aryan Bhat is a 2nd year law student at National Law University Delhi. A Potterhead, his other favourite authors in fiction include Khalid Hosseini, Jhumpa Lahiri and Ruta Septys. Besides fiction, he enjoys to read about political and social issues too. He plays chess as a leisure activity. While he is willing to explore any area of law, he finds himself particularly drawn towards Intellectual Property, Corporate Law and Criminal Law.
No comments:
Post a Comment