An Analysis of Transgender Persons (Protection of Rights) Act, 2019.

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Historical Evolution

On April 15, 2014, the Supreme Court of India ruled the National Legal Services Authority v. Union of India to recognize the rights of transgender people in India and take a number of measures to protect these rights. By promoting non-discrimination, we protect transgender people and promote welfare and reservation policies for transgender people in education and the workplace[1].  The same was held in the case of Navtej Singh Johar v. Union of India & K.S. Puttaswamy and anr. V. Union of India and ors.

The NALSA petition has yet to be decided, but the report of the Expert Committee on Transgender Issues was released in January 2014 after consultation with the Ministry of Social Justice and Empowerment[2].  The Dravida Munnetra Kazhagam paty’s  Tiruchi Shiva proposed a law in the Rajya Sabha – the Transgender Rights Act 2014 (2014 Bill No. 49)[3].

The opposition party won a majority, and on April 24, 2015, the bill was unanimously approved by the Rajya Sabha. The bill has been well received by queer rights activists in India. However, some transgender people noticed their absence during the process and requested for their recommendations to be considered.

The 2014 law was significantly amended when the government drafted its own bill to repeal the provisions of the 2014 law. When the community sent their recommendations, the bill was sent to the Ministry of Law & Justice[4] which was taken up in the Lok Sabha on April 29, 2016. Siva said he would not revoke the 2014 bill. [21]

A 2014 law passed by Rajya Sabha is under development and on 2 August 2016 the government introduced the 2016 Transgender Rights Protection Law. The 2016 legislation contained several provisions that were considered regressive and inferior to the 2014 law. The law was announced on July 2018 after transgender Indians criticized and challenged it before it was handed over to the standing committee. Lok Sabha presented and implemented a new version of the bill with 27 amendments on December 17, 2018.

Following the restructuring of Lok Sabha after the 2019 parliamentary elections, Minister of Social Justice and Empowerment, Thawar Chand Gehlot introduced the bill on July 19, 2019. After which, the Union Cabinet approved the bill on July 10, 2019. The vote took place in Loksabha on August 5, 2019 amid the chaos due to the cancellation of special status of Jammu and Kashmir on the same day[5].

The bill was introduced on November 20, 2019 by Thawar Chand Gehlot of Raj Sabah, and passed on November 26, 2019. The Law came into force on January 10, 2020 after the Ministry of Social Justice and Empowerment published it on the official notice board[6].

Objectives

In India, it is not only the low-wage category of society that suffers, but also the transgender group. This section seems to be the most vulnerable. The major objectives behind the bill were:

  • Removing the discrimination faced by them for health, education and employment necessities.
  •  Providing them the right to move on public and private places.
  • To change the socio-economic diagram of Indian society in terms of their welfare.
  • To make the process of procuring identity certificate easy.

Summary

The Transgender Persons (Protection of Rights) Bill, 2019 was focused on removing the discrimination faced by transperson for health, education and employment necessities. It also mandates the process of procuring an identity certificate and makes the same process easier. Some of the key features of the act are:

Certificate of Identity

A transgender person can ask a district judge for identification confirming that his or her gender is “transgender”.

Who is a Transgender Person?

This indicator defines a transgender person as someone who does not correspond to the gender indicated at birth. These include transgender men and women, people with intersex, gender differences, and people with sociocultural identities such as Kinnar and Hijra.

Discrimination

This law prohibits discrimination against transgender people. This includes the denial and abuse of education, work and health care. Access to public or private entities, the ability to hold public or private positions under the supervision or control of a transgender person.

Penalty

Crimes against transgender people are punishable by fines and imprisonment ranging from six months to two years.

Healthcare

The bill also aims to ensure the rights of transgender people to health care, including one-to-one HIV surveillance centers and gender reassignment surgery. The government also announced that it will review the medical curriculum to address the health problems of transgender people and provide them with a comprehensive health insurance plan.

Critical Analysis

There are several issues in the law that needs to be addressed by the government. This law is problematic. This is because the law was passed after three days of debate in the Rajya Sabha, during which no changes or additions were made. This overrides the right to self-determination as set out in the NALSA ruling[7].

If the district judge refuses to issue a certificate, aggrieved person will not be provided with any remedy. The 2016 Transgender Persons Act established a selection committee to advice District Magistrate on how to prevent abuse. But this rule was revoked from the 2019 Transgender Law.

Same sex marriages

The decriminalization of section 377 of the 1860 Penal Code in India did not end discrimination against homosexual partners. Currently, the law must recognize homosexuality as a heterosexual marriage. A strong and practical reason for legalizing same-sex marriage is that benefits such as remuneration, inheritance, and lien are only available to a married couple. Many couples want their relationship to be recognized.

Punishment

A 2012 report by the National Coalition of Violence group that transgender people are twice as likely to be bullied and harassed in intimate relationships. The law provides for sentences ranging from six months to two years. According to the Indian Penal Code of 1860, the minimum sentence for assault or criminal use of force against a woman with intent to deprive her of her liberty is at least three years.

History of sexual harassment and suffering from transgender people should be considered and the penalty must be increased from a minimum of 3 years to a maximum of 7 years. The rule of law states that the law should not impose unnecessary cognitive or behavioral control on people. The law is consistent and any disagreement that may arise must be resolved through legal means. The proposed transgender rights legislation fails to meet the needs and demands of society ignores their needs and imposes inappropriate obligations.

Amendments & Judicial Responses

According to the 2011 census, 4.87,803 people were not identified as men or women. The first step towards recognition of the legislature came when a member of the Dravidian party, Tiruchi Shiva, introduced a private member bill. The above bill was passed unanimously by the Council of State, but Lok Sabha never discussed

Key provisions of the 2014 Transgender Law provide for remedial action against violence and harassment. Provide skills development for transgender people and provide jobs for rehabilitation and welfare. It also creates national and state transgender committees and tribunals for transgender rights.

Highlights of the 2016 Transgender bill include the following: To be eligible under this law, a transgender person must have a transgender identity document. The District Judge is authorized to issue identification cards upon the recommendation of a selection committee of doctors and psychologists. This measure prohibits discrimination against transgender people in institutions such as medicine, education and employment. Rule also ordered the state to develop a social security plan. Sentence of two years in

The transgender community strongly opposed to the 2016 transgender law. This bill violates the fundamental right of the Indian Constitution – the right to identity. Following the decision of Navtej Singh Johar[8] in 2018, the Minister of Social Justice and Empowerment, with the approval of the President, passed another Transgender People (Protection and Rights) Law on December 5, 2019, which will enter into force thereafter. Clauses of this law: Transgender is defined as a person who does not correspond to the gender indicated at birth. This includes people with liver mutations, gender differences, trans men and trans women. The district has the authority to issue an ID card that can identify a person as transgender.

Discrimination and injustice against transgender people are prohibited.  Recognize the right to accept transgender people. Write down government plans such as vocational training programs and personal social work activities. The government said steps need to be taken to provide health services for transgender people, such as HIV monitoring centers and gender reassignment surgery. There are also criminal acts such as labor, physical and sexual violence, which are punishable by imprisonment for a term of 6 months to 2 years. The law also provides for the creation of a national transgender commission to oversee the policy and impact of the law on transgender people.

Conclusion

The bill does not answer more questions than the ones it addresses and does not do much good for the TG community as it stands. The timing of the adoption of the Lok Sabha bill was also questioned. The bill likely expired on the day that Rajya Sabha’s proposal to exclude Jammu and Kashmir from special status was announced. In some quarters, the transvestite community has dubbed the date “Gender Justice Murder Day.” It states that the bill was not issued by the relevant municipality before the date of its submission to the Lok Sabha. In light of these concerns and certain serious shortcomings noted above, the format of the current legislation needs to be revised.


References

[1] Venkatesan, J., Supreme Court recognises transgenders as third gender, THE HINDU (April 15, 2014, 12:27 IST), https://www.thehindu.com/news/national/supreme-court-recognises-transgenders-as-third-gender/article5914572.ece

[2]Report of the Expert Committee on the Issues relating to Transgender Persons”  (Press release). Ministry of Social Justice and Empowerment. 21 January 2014.

[3]The Rights of Transgender Persons Bill, 2014” (Press release). Rajya Sabha. 24 April 2015.

[4] Rohan Abraham, All you need to know about the Transgender Persons Bill, 2016, THE HINDU, (Nov. 30, 2017, 7:54 IST), https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-2016/article21226710.ece

[5] Congress opposition parties protest in Lok Sabha seek presence of Prime Minister on Kashmir decision. Times of India. New Delhi. 5 August 2019.

[6]Notification, Ministry of Social Justice and EmpowermentThe Gazette of India. 10 January 2020.

[7] National Legal Ser.Auth vs Union Of India & Ors, AIR 2014 SC 1863.

[8] Navtej Singh Johar vs Union Of India Ministry Of Law, AIR 2018 SC 4321.

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