Transgender Persons (Protection of Rights) Act, 2019: An Overview

SUBMITTED BY: GIRISHA MEENA ANAMIKA CHHABRA ANILA KRISHNA EDITED BY: SMARAKI NAYAK


INTRODUCTION:

The Act talks about a transgender individual as one whose sexual orientation doesn't coordinate the sex doled out during childbirth. It incorporates trans-men and trans-ladies, people with intersex varieties, sexual orientation queers, and people with social characters, for example, kinnar and hijra. Intersex varieties is characterized to mean an individual who during childbirth shows variety in their essential sexual qualities, outer genitalia, chromosomes, or hormones from the regularizing standard of male or female body.

This Act protects them from discrimination, provides them with right of residence, employment, educational and health care facilities, certificate of identity, offenses, penalties, welfare measures and national council for transgender persons[1]. They will be acknowledged as transgender and the basis will be the certificate issued by district magistrate.

BRIEF HISTORY AND BACKGROUND:

Transgenders have a powerful historical background in India from the times of the Vedic and puranic literature like Holy Scriptures the Ramayana and Mahabharata that comprises of Hijras, Kothis, Aravanis, Jogappas and Shiv-Shakthis. There are different kinds of transgenders in India who faced a lot of mental torture, discrimination, cruelty throughout the ages. They have been looked over with a lot of discrimination from the people in the society which boycotted them. Transgender community has faced abandonment from families, societies and they had no medium for education, housing facilities which made them depressed and ultimately made them beggars and sex workers.

The whole purpose of this legislation is to elevate and recognize their basic rights. Even though non- discrimination is a fundamental right, the transgenders face a lot of discrimination, inequality and violence. Article 14 to 18 provide for equality of our country's citizens irrespective of race, caste, sex, religion, and place of birth. Every citizen has equality of opportunity in matters of employment under the state. Although these Articles prohibit gender bias or gender inequality, transgenders face a lot of discrimination.

The heinous acts against them is not paid much attention. Hardly any action is taken to protect them. Hence, there was a need of strict laws for protection. This is how the Act has been introduced:[2]

· On 15 April 2014, the Supreme Court of India conveyed its judgment in National Legal Services Authority v. Union of India (NALSA v. UOI)[3], in which it perceived the privileges of transgender individuals in India. The judgment maintained the privilege of a transgender individual to self-saw sexual orientation character, ensured by the Constitution of India, without sex reassignment surgery.

· The 2014 legal order was insisted by the decisions of the Supreme Court in Justice K. S. Puttaswamy and anr. v. Union of India and ors.[4] (2017) and Navtej Singh Johar v. Union of India (2018)[5]. The judgment in NALSA v. UOI[6] additionally noticed the nearness of transgender individuals in India since its commencement, and made reference to the hijra, kinnar, and jogta networks, spread the nation over and somewhere else in the Indian subcontinent.

· An Expert Committee Report on issues identifying with transgender individuals was distributed in January 2014, Empowerment with transgender individuals in August 2013.In this specific situation, Tiruchi Siva of the Dravida Munnetra Kazhagam party presented a private part's Bill in the Rajya Sabha, in particular the Rights of Transgender Persons Bill, 2014 (Bill No. 49 of 2014)

· The administration had at first requested to pull back the Bill due to "a few abnormalities" notwithstanding, the restriction had a greater part in the house and the Bill was collectively passed by the Rajya Sabha on 24 April 2015.

· The 2014 Bill experienced critical changes when the administration drafted its own variant of the Bill, overlooking arrangements in the 2014 Bill. After suggestions were gotten from transgender individuals, the Bill was sent to the Ministry of Law and Justice. It came to be known as the Rights of Transgender Persons Bill, 2015. Later, the Bill was presented in the Lok Sabha for banter by Baijayant Panda of the Biju Janata Dal party. The Bill was talked about in the Lok Sabha on 29 April 2016.

· The Lok Sabha postponed and passed a more up to date form of the Bill with twenty-seven changes on 17 December 2018.The Bill was by and by met with serious analysis and fights across India. The 2018 Bill lapsed by because of the dissolution of the Lok Sabha With the house's disintegration, the Rights of Transgender Persons Bill, 2014 that was all the while pending before the Lok Sabha additionally lapsed.

· Lastly, the Act came into effect from January 2020.

PROVISIONS:

The 2019 Act on Transgender Persons (Protection of Rights) specifies that a person identified as 'transgender' has the right to 'self-perceive' the gender identity. They can apply for a Certificate of Identity issued by a District Magistrate once a person identifies as transgender. Such a certification will be a confirmation of their 'transgender' status and will grant rights and privileges under the Act. The draft rules define how people can apply for a certificate, type and procedure, and under which the certificate will be given. The draft rules state that applicants must have a Certification in order to apply. The draft rules state that applicants must have a Certification in order to apply

(I) request form, to be transgender, and

(II) an affidavit which declares itself

(III) a study by a Government Hospital psychologist. The District Magistrate can certify the applicant as transgender based upon these documents.

The Standing Committee on Social Justice and Empowerment (2016), which debated the Bill when it was introduced in Parliament, acknowledged that the inclusion of medical practitioners in the panel for assessing a person's classification as a transgender raises the likelihood that the applicant's gender identity may be tested on a physical, biological or psychological basis. According to the Committee, this would threaten transgender people's right to self-identify their gender, by the Supreme Court in National Legal Services Authority vs. Union of India (2014)[7]

· The Constitutional Rights: Although India has made substantial gains on transgender people's rights in recent years, most of them remain socially oppressed and deprived of basic rights, including the right to vote, own assets, marry, and claim formal identity either through a passport or other recognition by government. According to Article 14 and 21 of the Constitution, the right to equality before law and equal treatment of law is guaranteed. The right to choose one's gender identity is an integral part of living a dignified life which falls again within the scope of the Constitution. The Court granted people the right to gender identity. Therefore, they cannot be discriminated against on gender grounds because they are in violation of Articles 14, 15, 16 and 21. The Court also covers the gender identity referred for in clause (a) of Article 19(1) And held that no constraint can be imposed on one's personal appearance or dressing preference subject to the restrictions set out in Article 19(2) of the Constitution. Given all these fundamental rights till date, they are still unable to live a better and free life under the world, though the rules, rights give them permission to have a good life, but in various parts of the world, mainly India, they have to fight for their rights.

· Prohibition of discrimination: The Act prohibits discrimination against a transgender person, including denial of service or unequal treatment in reference to literacy, employment, medical care, accessibility to or enjoyment of products, services and resources accessible to the public, and freedom of movement.

· Right of residency: Every transgender shall have the right of residence and shall be included in his household. If the immediate family cannot care for the transgender person, under the orders of a competent judge, the person can be put in a recovery facility.

· Health services: The government has taken steps to provide transgender health services, including separate HIV screening centers, and gender reassignment surgery. The government must amend the medical curriculum to tackle transgender people's health problems, and provide them with adequate insurance schemes.

· Literacy: Educational institutions sponsored or approved by the government concerned have transgender education, sports and leisure facilities for transgenders without discrimination.

· Certification of identity for a transgender person: A transgender person can make an application to the District Magistrate for a certificate of identity, representing the gender as transgender.

· Government welfare initiatives: The Act specifies that the government concerned must take steps to ensure the full integration and involvement of transgender people in society. It must also take measures to rescue and rehabilitate them, establish vocational training and self-employment schemes which are responsive to transgender.[8]

[1] The Transgender Persons (Protection of Rights) Bill, 2019, PRS India (July. 16, 2020, 10:04 AM), https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2019 [2] The Indian Law Journal ,Transgender bill : Analysis on Transgender Persons (Protection of Rights) Bill, 2016, https://www.indialawjournal.org/analysis-on-transgender-persons.php [3] NALSA V. UOI, A.I.R. 2014 WP (Civil) No 400 of 2012 (India). [4] K. S. Puttaswamy and anr. v. Association of India and Ors., AIR 2012 WP (Civil) No 494 of 2012 (India). [5] Navtej Singh Johar & Ors. v. Union of India, AIR 2018 W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016 (India). [6] NALSA V. UOI, AIR 2014 WP (Civil) No 400 of 2012 (India). [7] Report no. 43, Standing Committee on Social Justice and Empowerment: The Transgender Persons (Protection of Rights) Bill, 2016, Lok Sabha, July 7, 2017. [8] Anamika Chhabra, Transgender bill: A critical analysis, JUS SCHOLARS, (May 13, 2020). https://www.juscholars.com/post/transgender-Bill-a-critical-analysis

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