The Lok Sabha, the lower house of India’s Parliament, recently passed the Transgender Persons (Protection of Rights) Bill 2016. The bill is now due to be presented in the Rajya Sabha, the upper house of Parliament. The enactment of this bill was catalyzed by a 2014 ruling of the Supreme Court of India (NALSA vs. Union of India) which urged both the central and state governments to develop measures to uplift the transgender community and officially recognize them as a third gender for the protection of their constitutional rights.
Key Provisions of the Bill
The bill includes a specific definition of Transgender Persons, stating that it applies to individuals whose identified gender differs from the one assigned to them at birth. It encompasses trans-men, those with intersex variations, gender-queer individuals, and those with particular socio-cultural identities such as kinnar, hijra, aaravani, and jogta.
The legislation strictly prohibits discrimination against transgender people in various domains including education, employment, healthcare, public goods, freedom of movement, property rights, opportunities in public or private offices, and access to government or private establishments.
Offenses, Penalties, and the Right of Residence
The bill acknowledges a range of offenses against transgender individuals, including forced labor, denial of public place usage, rejection from households or villages, and various forms of abuse. Those found guilty of these offenses may face six months to two years of imprisonment along with a fine.
Transgender people also have the right to apply for an identification certificate indicating their gender as ‘transgender’. This can be done through the District Magistrate, who issues the certificate based on the recommendations of a District Screening Committee. If a transgender person’s immediate family is unable to care for them, they may be placed in a rehabilitation center by a competent court.
Government Responsibilities and the Formation of a National Council
The bill mandates that the government takes specific measures to ensure the inclusion and active participation of transgender persons in society. Responsibilities comprise rescue and rehabilitation, vocational training, self-employment support, and the creation of transgender-sensitive schemes.
The legislation also provides for the establishment of a National Council for Transgender Persons (NCT). The NCT’s composition includes ministers and secretaries from various departments, representatives from organizations like the NITI Aayog, National Human Rights Commission, National Commission for Women, and representatives from state governments. Five members from the transgender community and five experts from non-governmental organizations are also included.
Table of Relevant Facts
| Prohibition against discrimination | Offenses and Penalties | Role of District Magistrate |
|---|---|---|
| Education, Employment, Healthcare, etc. | Begging, Forced Labor, Denial of Public Place, etc. | Issuing Identity Certificate to Transgender Persons |
Concerns Regarding the Bill
Despite its progressive intent, the Transgender Persons (Protection of Rights) Bill 2016 has several points of concern. It does not grant transgender individuals the right of self-identification but requires certification from a district screening committee. The bill is silent on allocating reservations to transgender people and does not mandate backward class reservations for this community as directed by the Supreme Court.
Moreover, it is criticized for treating transgender persons primarily as victims needing protection instead of empowering them with rights. The legislation further criminalizes begging, a potential means of livelihood in the absence of employment. It does not provide an appeal mechanism if a transgender person is denied a certificate of identity. Lastly, it fails to address the concerns of the Standing Committee about granting transgender persons basic rights to marriage, divorce, and adoption.
