10th JANUARY 2017
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
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GS II: SOCIAL - TRANSGENDER
1. Critically analyse the major provisions of the Transgender Persons (Protection of Rights) Bill, 2016.
SC verdict, 2014:
- In April 2014, the Supreme Court delivered the landmark judgment of NALSA v. Union of India, which affirmed the fundamental rights of transgender persons. The court gave a series of directives to the government to institute welfare measures for transgender persons, including affirmative action.
- It also directed that the Expert Committee Report prepared by the Ministry of Social Justice and Empowerment (MSJE) be implemented.
Draft Transgender Bill:
- In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. On April 24, 2015, in a rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha.
- Instead, the government decided to get its own Bill — The Rights of Transgender Persons Bill, 2015 — drafted, which was put up for public comments in December. The 2015 Bill was largely based on the 2014 Bill, but it did away with provisions on Transgender Rights Courts and the National and State Commissions. The Ministry also consulted civil society and activists.
- In April 2016, the 2015 draft Bill was sent to the Law Ministry, in July the Cabinet approved it, and in August it was introduced in the Lok Sabha.
Major provisions of the Bill:
1. The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male. In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers. However, these terms have not been defined.
2. A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.
3. Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee. The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
4. The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas.
5. Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.
Contentious provisions in the Bill introduced:
- It is unclear at which point the drafting changed, for the Bill introduced in the Lok Sabha was drastically different from the 2015 Bill.
- The 2016 Bill has now been referred to a Standing Committee.
- Not only is this Bill shorn of many critical features of the previous two Bills, it also completely disregarded all existing discourse and resources — the NALSA judgment, the Expert Committee Report, and public comments.
1. Clause 2(i) of the Bill, which defines the term ‘transgender person’, has been inexplicably borrowed from a provision of the Australian Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which defines the term ‘intersex’. This, even though the Expert Committee Report clearly explained the difference between transgender and intersex identities. The 2014 and 2015 Bills had more accurate definitions of the term transgender. In fact, the 2015 Bill was the most progressive in this regard as it granted a transgender person the right to identify as either ‘man’, ‘woman’, or ‘transgender’.
The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution.
2. Another problem is the absence of a provision on reservation, running contrary to the NALSA judgment and the 2014 and 2015 Bills which directed reservations for transgender persons.
3. While the NALSA judgment is couched in rights language, locating the fundamental rights of transgender persons in the golden trinity of Articles 14, 19 and 21 of the Constitution, the 2016 Bill, though it uses the word “rights” in its title, deviates from a rights-based approach and leaves transgender persons at the mercy of the “benevolent” state. This is puzzling considering that the 2014 and 2015 Bills, and even other recent laws like the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Bill, 2016, are framed in rights language.
4. Further, the Bill is completely silent on how its content will impact the operation of existing laws. Most laws, including of marriage, adoption and succession, continue to be based on the binary of male and female. Criminal laws, especially those dealing with sexual offences, also continue to be gendered. The cisnormative (the assumption that everyone has a gender identity that matches the sex the person was assigned at birth) foundation of the law remains a significant barrier to access to legal justice for transgender persons.
Jurisdictions like the U.K., Ireland, Argentina and Malta, which have legislated on transgender rights, clarify in their laws the impact gender change will have on existing legal institutions that are inaccessible to persons with non-conforming genders. The NALSA judgment too recognises the need for making civil rights accessible to transgender persons. However, the Bill fails to take this into account.
5. Finally, none of the Bills have addressed the issue of Section 377, which is frequently used to harass transgender persons. The conventional understanding of Section 377 is that it criminalises all sex that is not between people of opposite genders. But recognising trans-rights means recognising that there are more than the “opposite” genders of male and female. Embracing rights of persons with non-conforming genders while criminalising persons with non-conforming sexual orientations is thus absurd.