Five years after a landmark judgment, in which the Supreme Court recognized the transgender community as a third gender; the parliament has passed The Transgender Persons (Protection of Rights) Act, 2019. The bill passed on 5th December 2019 by the intends to protect and uplift of one of the most marginalized communities in India, the transgender group.
A population that currently includes, above 4 lakhs citizens, has for decades been a victim of social stigma and harassment. The bill intends to address issues such as the lack of education and medical facilities, unemployment etc. to improve the social and economic welfare of the community.
A history of the community
The transgender community had been a part of our society since centuries proof of their existence is there in Manusmriti. In Vedic astrology, the nine planets are given amongst three different genders; the third gender, Tritiya-Prakriti, is related to Mercury, Saturn to Ketu. Even the Puranas have references to three types of devas of music and dance: apsaras (female), Gandharvas (male) and kinnars (neuter).
The Hindu epic Ramayana narrates a beautiful incident. When Lord Ram was exiled from Hastinapur his entire Kingdom started to follow him. Lord Ram then said, “Men and women, please wipe your tears and go away.” Hence people left, but one group did feel bound by this direction the hijras who decided to stay with him
Impressed by their loyalty, he gave them the power bless people on auspicious occasions like childbirth, marriage, etc. a tradition that is followed even today.
Aravan, the son of Arjuna and Nagakanya in Mahabharata, offered to make a sacrifice to Goddess Kali to guarantee the Pandavas victory in the Kurukshetra war Although it was a prerequisite that he had to spend the last night of his life in marriage. Since no woman was willing to marry one who was doomed to be killed, Krishna took the avatar of a beautiful woman, Mohini and married him. Hence, the Hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis
Hijras were prominent during the Mughal period as well, serving as the sexless watchdogs of their harems.
It was during colonial rule in the 18th century that the situation changed drastically. The Europeans repulsed by the sight of Hijras couldn’t understand why they were respected in the community. They eagerly sought to criminalize them and in 1871 included them in the Criminal Tribes Act. Hijras were considered as a separate caste or tribe and activities like women dancing in public places were penalized. These pre-partition prejudices have led to the stigmatization of an entire community in this contemporary world. The act was later repealed in 1952 but the apprehensiveness continued.
Timeline of events
On 15th April, the Supreme Court of India moved from its normally regressive attitude towards sexuality and passed a landmark decision under the National Legal Services Authority v. Union of India (Writ Petition (Civil) No.604 of 2013), declaring transgender persons to be a third gender. This surprising move guaranteed the community with fundamental rights. The Bench explained “recognition of transgenders as a third gender is not a social or medical issue but a human rights issue. Transgenders are also citizens of India. The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
The judgment was welcomed.
One of the petitioners, notable transgender activist Laxmi Narayan Tripathi said, “Today, for the first time I feel very proud to be an Indian,”. The judges urged the government to recognize them as a minority to enable their development. They also stated that they should be given medical facilities, education, etc. This judgment meant that all government documents included ‘others’ as an option when one had to select a gender preference which initially just included males and females.
This judgment was a celebration of equality amongst all genders and gave the queer community a ray of hope in a society that had ostracized and exploited them for ages due to its conservative ideals
However, we were still far from reaching our goal. The Transgender Persons Bill introduced in 2016 was heavily criticized; it didn’t even give a clear definition for ‘transgender’ and was disregarded by the Trans community. It did not address issues such as changing names in government documents, reservations in schools and employment, etc.
In December 2018, the Lok Sabha passed a newer version of the bill with 27 amendments. It was again criticized as it completely neglected the suggestions made by the standing committee. The bill finally collapsed. Post the 2019 general election, the bill was reintroduced in the Lok Sabha by the Minister for Social Justice and Empowerment, Mr.Thaawarchand Gehlot. It was passed on August 2019
In November 2019, The Rajya Sabha passed the bill without any amendments subsequently, after a motion to refer it to a Select Committee of the Upper House failed. The Bill received the president’s assent in December 2019 and came into effect from 10 January 2020.
The Transgender Persons (Protection of Rights) Act, 2019
The bill was divided into 9 chapters. It contained provisions for the following:
• Chapter 1 covered legal definitions for words present in the act. It also included the definition of the word transgender as ‘a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani and jogta’
• Chapter 2 prohibits discrimination against a transgender person regarding employment, access to education and health care services, right to movement and residence, unfair (treatment in public and private institutions) and general enjoyment of public property etc. This is quite essential as a recent survey by Times of India states that about 96% of transgenders are unemployed and 60% have never even attended schools.
• Chapter 3 legally recognizes transgender persons. A person has a right to choose their self-perceived gender identity. They can file an application to the District Magistrate who will issue them a certificate of identity as transgender. All official documents will recognize them as per that certificate. If a person surgically changes their gender to male or female the certificate can be amended however, they should have a certificate by the Medical Officer attesting to it.
They can also change their first name. These changes will not in any way deprive them of the privileges that they were entitled to under the act.
• Chapter 4 includes the welfare measures provided under the act. The government is asked to uphold the rights of the transgender community. It also pledges to introduce welfare schemes to destigmatize their unjustified perception and take appropriate measures to include them in activities.
It directs the government to introduce provisions for their rescue and rehabilitation and their general participation in society.
• Chapter 5 elaborates on the obligations establishments and other people have to follow. The word establishment has been clearly defined in chapter 1 to avoid confusion.
It prohibits discrimination in employment and residence. It also forbids the practice of taking away children from their parents immediately after birth on the grounds of being a transgender until a court order says otherwise. If a parent cannot provide for them, they will be sent to a rehabilitation center.
• Chapter 6 directs the government to give them equal educational opportunities. It instructs the appropriate government to aid them with medical facilities such as access to medical facilities, separate HIV surveillance centers, and sex reassignment surgeries and counseling.
They will revisit the medical curriculum to review and research to enable doctors to help them to address ailments that they particularly face. It will also come up with a Health Manual related to sex reassignment surgery
• Chapter 7 introduces the National Council for Transgender Persons for implementing this act. The union minister of Social Justice and Empowerment will be the chairman of the committee. It will also consist of the state minister and the government secretary of the Ministry of Social Justice and Empowerment. The remaining team will include representatives of health and family, minority, women NITI Aayog, National Human Rights Council, etc. The committee will also include five experts from NGOs and associations that work for the welfare of the transgender community.
The council will advise formulating various policies to address the grievances and also monitor its implementation.
• Chapter 8 addresses all the offenses and penalties. Activities such as bonded labor, economic, physical, sexual verbal abuse and prohibiting the transgender community from access to public places will be penalized varying from six months to two years.
• The final chapter includes a few miscellaneous provisions such as funding and delegating powers to the respective governments to bring any amendments for better implementation.
The Bill received the president’s assent in December 2019 and came into effect from 10 January 2020.
Criticism and conclusion
The bill has been severely criticized with many claiming that it does not even serve the purpose it intended. The main criticism is that although it gives one the right to identify their gender it contradicts its purpose by mandating a government certificate to be officially recognized. This gives too much power to government officials and might lead to exploitation. Even the penalties for offenses are comparatively lenient considering that the majority of this community is ostracized and exploited daily.
It also does not address many civil rights such as marriage and adoption. It also mandates a minor’s right to reside with their birth family which could be dangerous for their well-being.
Despite its shortcomings, the bill is a big step towards a more progressive and inclusive society and it also gives a glimmer of hope to the LQBTQ community.
“The views of the authors are personal“
Frequently Asked Questions
What is the punishment for discrimination?
The act penalizes offenses such as discrimination ranging from 6 months to 2 years.
Is the transgender Community legal?
The community has been legally recognized by this bill. They will be eligible to practice fundamental rights and will be able to self-identify
Are they a minority?
They have not yet been recognized as a minority.
If after surgery, they change their identity and gender to male or female officially are they still entitled to the benefits of the act?
No, chapter 3 says those changes won’t affect the benefits they receive under this act