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The Ministry of Social Justice and Empowerment has constituted the National Council for Transgender Persons, a requirement under the Transgender Persons (Protection of Rights) Act, 2019.

Composition:

• The Minister of Social Justice and Empowerment would be the chairperson of the Council and members would include officials of the Ministries of Health and Family Welfare, Home Affairs, Housing and Urban Affairs, Minority Affairs, Human Resources Development, Rural Development and Labour and Employment, the Department of Legal Affairs, the Department of Pensions and Pensioners Welfare and the NITI Aayog.
• The council also includes five nominated members from the transgender community. 

Transgender Persons (Protection of Rights) Act, 2019

• Definition of a transgender person: The act  defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
• Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
• 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.
• 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.

Health care

• The act  seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres,  sex reassignment surgeries.
• Government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes.
• It calls for establishing a National Council for Transgender persons (NCT).

Constitutional rights of transgender people

• Preamble to the Constitution mandates Justice – social, economic, and political equality of status.
•  Right to equality under Article 14.
• Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.
• Article 21 ensures the right to privacy and personal dignity to all the citizens. Article 23 prohibits trafficking in human beings as beggars and other similar forms of forced labour and any contravention of these provisions shall be an offence punishable in accordance with law.

Major Judgements

• National Legal Services Authority of India (NALSA) V. Union of India Case under which the Supreme Court for the very first time recognised them as 3rd gender.
• Navtej Singh Johar V. Union of India Case, Supreme Court Decriminalised some part of Section-377 of Indian Penal Code that barred even consensual homosexual sex between adults, thereby strengthening transgender rights.
• SC under this case introduced the concept of the Doctrine of progressive realisation of rights which mandates that the laws of a country should be in consonance with its modern ethos, it should be “sensible” and “easy to apply”.

Criticisms of the current Act

• Against the Spirit of Self Perceived Identity: The act states that a person will be recognised as ‘transgender’ on the basis of a Certificate of Identity issued by a District Magistrate. In such a case, it is unclear what the term ‘self-perceived’ gender identity entails and how it will be enforced.
• 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.
• No Review Mechanism: If a transgender person is denied a Certificate of Identity, the act does not provide a mechanism for appeal or review of such decision of the District Magistrate.
• Compartmentalization of Discrimination: Act expressly prohibits discrimination against a transgender person, only on nine types of discriminatory acts. Discrimination is a multidimensional concept and to name just nine types is a travesty of justice.
• No Reservation: In the NALSA judgement, the state and central govts were asked to extend backward class reservation to transgenders in education and public employment. But the act fails to address that issue.
• Lighter Sentences: There are lighter punishments for several criminal offences, such as “sexual abuse” and “physical abuse” if they are committed against transgender people in comparison to females.
• National Commission not enough: A transgender commission at the national level is not enough. There is need for a welfare board for transgender, and a helpline number for those in distress at regional and local levels.

Additional Details

LGBTQ in Art & Culture

• In the temples of Khajuraho, there are images of people engaged in homosexual acts.
• Indian epics like Ramayana and Mahabharata also refer to instances of homosexuality
• Sanskrit, one of the oldest languages in the world uses three genders: masculine, feminine, and gender-neutral in its grammar.

Way Forward:

More State level initiatives are needed for augmenting their welfare like:

• Tamil Nadu established a transgender welfare board in 2008.
• Kerala brought the ‘State Policy for Transgenders in Kerala 2015’ to provide the “right to live with dignity.” It was the first state to have a transgender policy.
• Odisha is the first state to give transgender people social welfare benefits.
• Andhra Pradesh also announced pension scheme for transgender community.
• Child Protection laws: The abandonment of children is a punishable offence under Section 317 of IPC (Indian Penal Code). The age limit of child for this offence need to be increased to 18 years as abandonment of transgender children usually takes place between 12 and 18 years.

Reference:

1. thehindu.com/news/national/centre-forms-national-council-for-transgender-persons/article32422814.ece