THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019.

Author: Shivakshi Arora, 1 year, B.A LL.B (Hons.), Amity Law School, Amity University Rajasthan. The article has been written by the author while pursuing the internship programme with us. INTRODUCTION The mic had been echoed several times in the parliament that every countrymen should bid due respect to all the transgender communities to treat them in same way as they treat to normal human being, whenever the plea is raised to grant the rights to the transgender community. In this article we will talk about The Transgender Persons (protection of rights) Bill, 2019. We will see the latest amendments passed by the government of India and how it is different from the bill that is passed on 2014. Also the negotiations from 2014-2019 is fraught with many protests all around by the transgender community. Scenario Prior to the latest amendment This Bill had undergone through various modifications with the passage of time. By giving reference to the timeline, In 2014 The Hon’ble Supreme Court had pronounced the judgement in the National legal services Authority of India v. Union of India[1] stated that any medical examination or biological test is illegal, concerning the legal recognition for the transition within male and female instead of that they prefer to emanate psychological test which will be the yardstick for the legal recognition. It was the first step by which transgender were legally identified as “third gender” and they had been entitled to the fundamental rights as it is offered to normal human being along with the right of adoption, right to marriage and right for divorce. They were recognized as backward class and thus reservations are made for them in various sectors such as educational fields and also in public employment. The key point is that they had given the right for ‘self-identity’ which is assigned at the time of birth and it is crucial as our society is categorized on the basis of gender which define a person as a ‘male’ or ‘female’ and after this judgement ‘transgender’ – a category for the people whom identities are not assigned at the time of their birth, emerged. In 2014, a private member’s bill was introduced by Tiruchi Siva in Rajya Sabha. He argued on the basis of discrimination in day to day life that was faced by transgender .Though, the bill was rejected by majority as it have various loop holes but at the end on 24 April,2015 the bill was passed by the Rajya Sabha. This is not the end as Lok Sabha’s decision was still pending. In 2016, the bill was introduced in Lok Sabha and then it was referred to the standing committee and the report was issued in 2017. Keeping the view of the 2016 bill, Lok Sabha declared a transformed version of bill in 2018. Also, 2016 bill had faced many criticism by transgender community. So, the new version of the bill was passed by Lok Sabha on 5 August 2019 whereas Rajya Sabha passed it on 26 November 2019. However, it commenced and came into force from 10 January 2020. PROVISIONS The transgender (protection of rights) bill contains 9 chapters with 23 sections. Initially , when the first bill of 2014 was introduced the definition of transgender is referred to as – “neither male nor female; partly male and partly female”[2] which has been changed in the 2019 bill. According to the revised definition of 2019 bill as per (The Hindu, 2019) ‘transgender is one whose sex is not assigned at the time of birth’ and is mentioned in (THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019., 2019) in Section 2(k) under The Transgender Persons (Protection of Rights) Act,2019. They are provided with the healthcare facilities, educational rights and also various welfare schemes. According, to this bill, a screening committee is established which consist of 5 members among which one will be transgender and other 4 were government official. This committee along with district magistrate will issue the certificate for the approval of identity of transgender. And if they had to undergo any biological test the revised certificate of their specific gender will be issued. The bill forbids begging and declares it illegal. Some transgender consider it as “badhaai” while other see it as a purpose for livelihood. If we talk about offences and penalities, if any person commits an offence of rape against any transgender , he will be imprisoned for the six months and which may be extend till two years with fine. The major steps taken by the government is to establish the National Council for transgender person which will perform the analysis and evaluation of the specific programmes for the transgender and also can advise the government for further implementing the policies. CRITICISM The whole transgender community has protested against the provisions of the bill, from starting each bill have some loop holes by giving a diverse definition to the term ‘transgender’ and by setting provisions under the Chapter 3 of Transgender persons (Protection of Rights) Act, 2019- recognition of transgender – where they have to issue certificate from the district magistrate for their gender recognition which are against the judgement given by the Hon’ble Supreme Court in earlier cases where it was held that transgender have right for ‘self-perceived’ identity. In NALSA Judgement various rights had been offered to transgender community but in the bill of 2019, any laws or right related to adoption, marriage, and divorce are not mentioned. Also, transgender community raised their voice for the act of government of declaring begging as illegal as they consider it as a “badhaai” as a part of ritual in which they take money by going into the homes where the baby boy had taken birth or if there is any marriage. The main loop hole in the recent bill is that NALSA judgement was against any biological test for altering the gender and that is why they held any biological surgery through which one can modify its gender into male or female is illegal whereas in this act revised certificate can be provided if one undergoes through sex reassignment surgery. Basically it is against the NALSA Judgement and also against the self determination of the gender. Under 18 (d) of Transgender Persons (Protection of Rights) Act, 2019 the offences of sexual abuse towards transgender is punishable with the imprisonment of 6 months to 2 years. In NALSA Judgement Reserved seats were kept for the community as it was pronounced as backward classes but in the new bill no such provision has been mentioned related to reservation due to which transgender community is in danger to lose their minimal rights which were given to them in education, public and private employment sectors. CONCLUSION In this article, all the backgrounds related to the Transgender bills and their rights are compiled . After going through all the points which are mentioned above some of the questions may arise such as- whether the Trans-women will get the rights same as it is given to the cis women? whether the Trans-men will be awarded with the same rights as it is given to the cis-men? whether they will be considered as a backward class having reserved seats or not?[1] So here one thing is definite that some of the fundamental rights of transgender community has been infringed and also the new provisions made are against the NALSA judgement. Here, again and again emphasis are being laid on NALSA judgement because it was the first step taken for the trans-community and which was legally accepted by the community. It is ought to be respected that they have the right to privacy but it is more about that any of the native should not get unnecessary advantage of the provisions. As all other backward classes have their legalised documents and also BPL cards are the evidence by which the rights of the poor are retained. It has a loophole as under Article 14, 15, 16, 19(1)(a) and 21 under Constitution of India, trans-community are offered with fundamental rights and in the provision under offences and penalties in section 18(d) of Transgender Persons (protection of rights) Bill, the right to equality of the community is infringed as for the normal woman if she goes through any physical, sexual, verbal or economic abuse the offender will be punished with the imprisonment of 7 years which can be extended to the life imprisonment but in the case of transgender penalties for offences vary between 6 months to 2 years. Cis gender and trans gender should treated in the level of equity with the principle of equality.[2] Criminalising begging cannot be considered as a loophole as begging in many states is prohibited under Bombay prevention of begging Act, 1959. This act is extended to the union territory of Delhi. Under this Act, a person who commits the first offence he can be sent to the detention centre for 3 years and on the second offence he will be sent for 10 years in detention centre. So we can conclude that the protest done by the transgender community can be acceptable in one way but we can’t state that the whole bill is covered by the loop holes as some of the provisions are for the benefit of the community as well. And I hope that after this pandemic, the government will take some step forward and will alter it as per the suggestion of the members of the lok sabha or it can add up the new provision for the benefit of the community. Justice can be delayed but it cannot be denied – and is true. The definition in 2014 was somewhat else but now it has been changed so the justice is provided and the implementation of justice is in the hands of community and the countrymen. So, the pros of the bill are improved definition of a transgender person. The bill prohibit discrimination in the sphere of education, facilities provided to public in common, public and private office, healthcare and access in government or private establishment. The bill awarding the right of residence and the establishment of National Council for Transgender Persons for advising and monitoring policies and projects. So, the bill is laying emphasis to reconstruct the rights and to improve the view of society on the transgender communities. Each coin has its two sides, and in the same way pros and cons run parallel to each other in various situations. The cons of the bill is that it is against the NALSA judgement in which it was held that any biological surgery is illegal but in Transgender Person (Protection of Rights), 2019 bill mentioned in Section 7 that any transgender who undergoes any surgery for the transformation of gender the application from the medical officer should be issued and for receiving revised certificate the application must be given to the district magistrate. The penalty for the offences such as sexual abuse is 2 months which can be extended to 2 years, here, the right of equality is been infringed. According to clause 6 (3) of the bill the identity certificate grant rights to transgender persons and will be a proof for identity recognition but nowhere is mentioned about the transgender who had changed their identity before the existence of this bill, whether their identity will be protected or not. REFERENCES: [1] AIR 2014 SC 1863 [2] PRS legislative research, n.d. DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

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