29th December 2018
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: POLITY
Q1. Discuss the drawbacks of the Transgender Persons (Protection of Rights) Bill, 2018. (Repeat question from 21st December 2018)
- The Lok Sabha recently passed the Transgender Persons (Protection of Rights) Bill, 2018. After several submissions made by the transgender community and the recommendations of a parliamentary standing committee, the definition of transgender has been rectified and made inclusive of diverse gender identities.
- However, all nuance of people’s self-identified gender expression is lost in the Bill. It proposes setting up a District Screening Committee comprising five people, including a medical officer and a psychiatrist to certify a transgender person. This process is in direct violation of the Supreme Court’s directions in National Legal Services Authority v. Union of India (or NALSA), 2014 that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS). In fact, NALSA had clearly directed that “any insistence for SRS for declaring one’s gender is immoral and illegal”.
- Drafted by the Ministry of Social Justice and Empowerment in 2016, the Bill was met with immediate protests from the transgender and intersex community as it has several provisions that take away from the rights accorded through NALSA while injecting disempowering and regressive clauses. The Bill does not provide for employment opportunities through reservations, disregarding the directions of the Court in NALSA “to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
- Debates on the Bill have always included the demand for reservations for transgender and intersex persons in educational institutions and in public employment as they are seen to be crucial for their social inclusion. This was not only mandated by the Supreme Court in NALSA, the Rights of Transgender Persons Bill 2014 too provided for 2% reservation.
- Surprisingly the 2018 Bill does not provide for any reservation. It provides in Sections 10 and 14 that there would be no discrimination in education and employment, but these rights are meaningless if transgender persons are not able to get access in the first place. Equality would demand that in order for the trans and intersex community to get access to their basic social rights, there should be horizontal reservation in education and employment provided to them. When the new Rights of Persons with Disabilities Act 2016 was passed, it included reservations of 5% and 4% in education and government jobs, respectively. It is surprising therefore that the 2018 Bill has no mention of similar provisions.
- The Bill criminalises begging, thereby targeting transgender persons who rely on begging for sustenance. Such provisions disregard the lived realities of transgender persons for whom begging often is the last resort. In fact, provisions such as these could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will.
- The Bill fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognises rape in strict terms of men and women as perpetrator and victim, respectively. While the Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice. Moreover, the Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.
- The need of the hour is a robust Bill with strong anti-discrimination provisions that will remedy the historical injustices faced by the transgender community, which continues to fight for the most basic rights even today. It is hoped that the Bill will be revised and brought in line with the NALSA judgment to ensure full realisation of transgender persons’ fundamental right