In National Legal Services Authority v Union of India (AIR 2014 SC 1863), the Supreme Court recognised that transgender persons are entitled to basic human rights, as:
the right to life and liberty with dignity;
the right to privacy and freedom of expression;
the right to education and empowerment;
protection against violence;
protection against exploitation; and
protection against discrimination.
Pursuant to this judgment, transgender is recognised as a third gender. However, despite this, they have been subjected to harassment, social stigma, and violence, excluded from education, employment, and society in general. To address these issues, the Indian legislature has enacted the Transgender Persons (Protection of Rights) Act 2019. The act was passed by the Lok Sabha on 5th August 2019 and the Rajya Sabha on 26th November 2019 and came into force with effect from 10th January 2020.
PROS OF THE ACT:
· The Act provides for ‘self-perceived gender identity’ i.e. the persons can determine their gender on their own. This was concluded impact of the judgement given by Supreme Court which held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under the Constitution in National Legal Services Authority vs Union of India.
· Every transgender person has a right to reside and be included in his household.
· No government or private entity can discriminate against a transgender person in employment matters, including recruitment and promotion.
· The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
· The NCT monitors the policies and assures redressal of the grievances of transgender persons.
The Act benefits a large number of transgender persons as it will mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of the society.
This will lead to inclusiveness and will make the transgender persons productive members of the society.
SHORTCOMINGS OF THE ACT:
· Several laws, Criminal and Civil laws, acknowledges two categories i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 (NREGA) and Hindu Succession Act, 1956. The Act, now, seeks to recognise a third gender i.e. ‘transgender’. However, the Act does not clarify how transgender persons will be treated under certain existing laws.
· The Act only allows for the certificate to identify a person as transgender till they undergo a sex reassignment surgery and apply for another certificate.
· Lack of enforceability dilutes provision.
· Identification as transgender persons depends upon scrutiny and certification by District screening committee.
· Lacks greater representation in decision making that affects them directly.
· Light punishment for violence against trans-people. There is no specific penalty for discrimination against transgender persons or failure to designate a person as a complaint officer.
· The act goes against the principle of self-determination itself, activists argue, pointing out that there is no room for redress in case an appeal for such certificate is rejected.
· Certain provisions of Private member Act introduced in 2014 by Tiruchi Siva can also be incorporated by reserving 2% of seats in education institutions funded by the government, formation of special employment exchanges for transgender people, government jobs etc. However, it is not a part of the Act.
TRANSGENDER COMMUNITY – EFFECT AND RECEPTION:
In case a transgender person has had a gender-change surgery, the law says they can obtain a certificate from the medical facility where they had the operation, and apply for a change in their certificate. However, many in the community have raised concerns about the requirement of a certificate from the district magistrate. Activists have expressed concerns about the lack of awareness and sensitisation.
Lovely Kumari, a transwoman, who had participated in the Delhi Chief Electoral Officer’s campaign to boost turnout among transgender voters in last year’s the Lok Sabha elections, said that trans people found it difficult to get papers. “During the elections, we went door-to-door ... It was difficult because many of us have two different names on our documents. People don’t have any knowledge about this [about the transgender identity certificate under the Bill],” she said. Grace Banu, a Dalit transgender rights activist, said that the Bill was a “murder of gender justice.” “As a community, we have opposed this Bill from the beginning,” said Banu. “We do not want it. It does not uplift us.” However, activists added that the passage of the Bill would not stop the community from speaking against the legislation. “Our only hope is the constitution,” Banu said. “Our fight will not come to an end. I have to educate the community about what is in this Bill.”
There is a need of eradicating prostitution and beggary from the transgender community because this makes them highly prone to HIV/AIDS and the verbal or sexual abuse and degradation in the eyes of the society in general. A restriction on a trade or business is unreasonable if it is arbitrary or drastic, and has no relation to, or goes much in excess of, the objective of the law which seeks to impose it. For the upliftment of the transgender community, it is essential that they are stopped from getting into acts such as begging and prostitution. The Transgender Act also contains provisions for their rehabilitation, vocational training, and self-employment which makes sure that there are other measures available for them to gain livelihood. There is also a contention that how Act encroaches upon the rights of privacy and right to life and liberty of Transgender as it was argued in the case of NALSA VS Union of India, the Hon’ble Supreme court held that, “transgenders have the right to self-identification in order to be in consonance with right to live with dignity and respect.” However, the Transgender Protection Act goes against the spirit and letter of the judgement of this case as it provides for certification in order to be recognized as a transgender, which will determine the identity of a person, and the rights that come along with it. Given that there is a requirement of a Certificate of Identity under the Act, it creates a contradiction with regards to the term ‘self-perceived’ gender identity. Even though it gives transgender persons a "right to self-perceived identity" it requires them to register with the government if they want to be officially recognized as "transgender” which will only be determined by a medical certificate the legitimacy of which would be in complete discretion with the district magistrate. In the case of K.S. Puttaswamy v. Union of India privacy was held to be a natural right — which gives an individual autonomy over its body and identity which includes gender. The provisions in this Act intrude upon the zone of privacy of the person by authorizing the government to intervene in determining one’s gender. Further in the case of R. Rajgopal v. State of Tamil Nadu, the Hon’ble Supreme Court held that, “the citizen had the right to safeguard their privacy and publication of any personal information without the consent would be in violation of the fundamental right to privacy.”
The Act marks a legislative recognition, though, flawed, of the rights of a community which has long remained unnoticed and under the shadows of the majority. It does not, however, go without saying that there is an imminent need of societal acceptability of these groups’ individuals, who, despite abolition of untouchability in our country, are subject to neglect and ostracism. Progressive development would be meaningful only when the county with all its participating members grow uniformly and the same is not at the cost of subjugation of one over another. Accordingly, such acceptance and compassion towards the transgender community is a first step in the long journey towards development.
The Act should be amended to emphasize on teachers and school authorities to help them adopt inclusive teaching methods to ensure that transgender or intersex children are not harassed or discriminated by staff or any other children. Parents of the Transgender need to be counselled appropriately in order to treat them at par with other children.
Many multinationals already have vigorous policies on diversity and inclusion. This needs to be universal. Especially for workplaces, progress should be made in furthering transgender persons' rights under the Transgender Persons Act. Awareness sessions should be conducted to make employees aware of the Act. Policies of the company should also be aligned to be more inclusive towards transgender employees.
This is a welcome step which can go a long way in achieving gender justice for transgender persons. On effective implementation, the Transgender Persons Act can bring about a change in workplaces' perception and treatment of transgender employees.
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