Transgender Persons (Protection of Rights) Act, 2019
- Definition: 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: The Act allows self perception of gender identity. But it mandates that each person would have to be recognised as ‘transgender’ on the basis of a certificate of identity issued by a District Magistrate.
- Welfare measures by the government: 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.
- Prohibition against discrimination: The Act prohibits the 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, right to movement, right to reside, rent, or otherwise occupy property, opportunity to hold public or private office and access to a government or private establishment in whose care or custody a transgender person is.
- Right of residence: Every transgender person shall have a right to reside and be included in his household.
- Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
- Offences and penalties: The Act recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary between six months and two years, and a fine.
- The Act makes it mandatory to constitute the National Council for Transgender persons (NCT) which 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.
- National Legal Services Authority of India (NALSA) Vs. Union of India Case under which the Supreme Court for the very first time recognised transgendered persons as a “third gender” and directed the government to safeguard their rights and extend certain reservations for admission into education institutions and public appointments to third gender persons.
- In the Navtej Singh Johar Vs. 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.
- In this case, the Supreme Court 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”.
- Using this legal doctrine, then Chief Justice of India Dipak Misra held that once a right is recognised and given to the public, it cannot be taken back by the state at a later date. Once a step is taken forward, there is no going back.
Criticisms of the current Act
- Against the Spirit of Self Perceived Identity: The act does not have a clear definition regarding how the District Magistrate will actually examine the person or their documents to certify them as a transgender and it is also considered as a violation of privacy.
- It does not mention any punishments for rape or sexual assault of transgender persons as according to Section 375 of the Indian Penal Code stands, rape is something that only a man can do to a woman.
- 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.
- 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.
Why in News?
- The Bombay High Court has raised concern that despite the Transgender Persons (Protection of Rights) Act, 2019, which was brought to end discrimination against transgender persons in accessing education, employment and healthcare, and recognise the right to self-perceived gender identity, their harassment continues endlessly — from daily living to job scouting.
- Existing structures continuing to categorise people into the binary of male and female has resulted in the need for them to approach the courts or governments repeatedly for the implementation of every single aspect of the law that was passed to protect them.
- Though the Transgender Identity Certificate acknowledges the gender assigned at birth and gender requested, while applying for jobs, they are often compelled to identify themselves as male or female in the absence of a third option.