TRANSGENDER RIGHTS

By- Vimal C V.


It defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.


It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.


Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court. A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.


The Act states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.


National Council for Transgender Persons will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons

According to the new definition, a transgender person is somebody “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani, and jogta”.

Highlights of the Bill:

The Act aims to stop discrimination against a transgender person in various sectors such as education, employment, and healthcare. It also directs the central and state governments to provide welfare schemes for them. It states that a person will be recognized as transgender on the basis of a certificate of identity issued by the District Magistrate. This certificate will be a proof of identity as transgender and confer rights under this Bill.


Going by the Act, a person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy.

It also requires transgender persons to go through a district magistrate and “district screening committee” to get certified as a transperson.


Composition: The committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.

Criticisms:

The Act is silent on granting reservations to transgender persons. It has prescribed punishments for organised begging. However, the Act doesn’t provide anything to better to condition in those areas, it doesn’t provide for reservation. It also 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.


Background:

In 2014, the Supreme Court recognised a transgender person’s right to self-identify their gender as male, female or the third gender. The apex court addressed it as a “human rights issue”. The verdict mentioned that the non-recognition of gender identity violates Article 15 of the Constitution, which prohibits discrimination on the basis of sex. The Transgender Persons (Protection of Rights) Act, 2019 was passed in 2019. It allowed persons to self observe their gender identity and provides for the identification of transgender persons and confers them with certain rights and benefits.


Issues with the earlier draft:

Go to linkraft had mandated a report from a psychologist along with the affidavit for the application.The trans rights movement had opposed this, as it was seen as going against a trans person’s right to self-identification, which was upheld by the Supreme Court in 2014.


Highlights of the new draft:

It has addressed the community issues regarding identity and included welfare measures for trans persons. It states that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, “but without any medical examination”.

Transgender persons would be required to fill out a form and submit an affidavit saying they perceive themselves to be “a transgender person whose gender does not match with the gender assigned at birth”.


In case of change of gender, the application for new identification certificate would require a certificate from the medical superintendent or chief medical officer of the medical institution where the applicant underwent the intervention. A series of welfare schemes have been proposed including making at least one hospital in each State equipped to provide “safe and free gender-affirming surgery”, counselling and hormone replacement therapy; providing medical insurance cards; giving scholarships to trans persons; facilitating accommodation and schooling for trans, gender non-conforming and intersex children at government-run schools and colleges; and universal access to food security etc.


The Transgender Persons (Protection of Rights) Act, 2019:

It defines a transgender person as one whose gender does not match the gender assigned at birth.

It prohibits any kind of discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public. A transgender person may write an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.


National Council for Transgender persons (NCT) would be established to advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons.


What is Article 15 of the Constitution?


It comes under Part III in the Constitution of India, which deals with the fundamental rights of the citizens of India.

It provides for “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. It is available only to the citizens of India.

The details mentioned in the article are:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

No citizen shall, on the ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to –

Access to shops, public restaurants, hotels and places of public entertainment; or

The uses of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of the general public.

Nothing in this article shall prevent the State from making any special provision for women and children.

Nothing in this article or in clause (2) or Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.



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