Analysis on Transgender Persons (Protection of Rights) Bill, 2016

Manasi Bhushan analyses the proposed legislation on the protection of rights of transgender persons.

INTRODUCTION

Transgenders are persons who do not conform to their gender identity as compared to their gender by birth. Their gender behavior or expressions do not match with their biological sex.

Transgender have a strong historical background in India as evident from the Vedic and puranic literature like Ramayana and Mahabharata and comprise of Hijras, Kothis, Aravanis, Jogappas, Shiv-Shakthisetc. There are the different kinds of transgenders in India from times immemorial.

Hijras are not men, by virtue of physical appearance and psychologically, they are also not women, though they are like women with no female reproductive organ and no menstruation. Eunuch refers to an emasculated male and intersexed to a person whose genitals are ambiguously male-like at birth. Aravanis are biological males who self-identify themselves as a woman trapped in a male’s body. Kothis can be described as biological males who show varying degrees of femininity which may be situational. Jogtas or Jogappas are those persons who are dedicated to and serve as a servant of goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and Karnataka. JogtiHijras is used to denote those male-to-female transgender persons who are devotees/servants of Goddess Renukha Devi and who are also in the Hijra communities.

These transgenders have been subject to metal harassment and cruelty throughout the ages. Social stigma, discrimination, boycott from the society and family, absence of supportive family, abusive environment, disowning from families and parents, no medium for education, depression amongst transgenders, no housing facilities, harassment by police and they ultimately resort to begging and sex work.

The intent of this legislation is to uplift transgenders and recognize their rights. Through this legislation they will have a legal recourse in case of violation of their rights.

Current Legislative Provisions for Transgenders

Criminal Tribes Act 1871ⁱ prosecuted those tribes that were innately criminal and were addicted to the systematic commission of non-bailable offences. For Eunuchs, special provisions were laid down in this Act. It provided for the registration, surveillance and control of certain criminal tribes and had penalized eunuchs, who were registered and

appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. This Act was however replaced by central legislation i.e. Habitual Offenders Act which focused on targeting individuals rather than criminal tribes.

Section 377 of IPCⁱⁱ criminalizes all penile-non-vaginal sexual acts between persons, including anal sex and oral sex. Supreme Court, in 2013,criminalisedany sexual activity other than the heterosexual penile-vaginalⁱⁱⁱ. This violates the freedom of transgenders to have sex with their desired partners. The definition of transgenders in the current bill is broadened. It not only covers those persons whose biological gender differ from their gender identity but also inter-sex persons. If this same provision is applicable to this new definition of transgenders then it violates their fundamental rights.

Even after having non-discrimination as a fundamental right, discrimination and violence is a major problem for transgenders. Provisions of the Constitution stipulates under Article 14^iv equality where the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Additionally Articles 15 and 16 of the Constitution also prohibit discrimination against any citizen on certain enumerated grounds including the ground of sex. These Articles prohibit all forms of gender bias and gender based discrimination. Even after such protection which is fundamental in nature, transgenders face discrimination, indirect violence in society and are unable to compete at par with others. Ultimately they have to resort to either begging or sex work.

Another provision which provides for freedom of speech and expression including right to express self-identified gender, freedom to trade and profession, freedom to move freely and reside and settle in any part of India as given under Article 19(1)(a) of the Constitution of India. Self identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. However, these transgenders are not encouraged in work setup and other employment opportunities. They are generally not hired due to their style of dressing. Thus this violates their fundamental rights and due to social stigma they are unable to enforce their fundamental rights.

Despite the following international law provisions, India is still facing the problem of discrimination, violence and deprived conditions oftransgenders. Article 6 of the UDHR^v and Article 16 of the ICCPR^vi recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right.

Everyone shall have a right to recognition, everywhere as a person before the law. However torture against transgenders by the police is not reported and thereby India fails in achieving this goal.

Article 17 of the ICCPR^vii states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence or to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interferenceor attacks. Article 7 of theICCPR also providesthat no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Again the tortious acts against the transgenders isn’t paid much attention hardly any action or cases are registered to protect the transgenders.

In April 2015, the RajyaSabha passed the Rights of Transgender Persons Bill 2014. This was a private member billintroduced by a member of parliament, Tiruchi Siva.^viii This Bill was later introduced in the LokSabha, but has not been passed yet. Simultaneously, the government of India began the process of developing itsown draft of a transgender rights law. In July 2016, Cabinet had approved the Transgender Persons (Protection of Rights) Bill 2016, which has now been introduced in the LokSabha.

Transgender Persons (Protection of Rights) Bill 2016

Chapter I, Section 2 provides with the definitions used in the Bill. ‘Transgender’ is defined as a person who is neither wholly female nor male, or a combination of female and male, or neither female nor male and whose sense of gender does not match with gender assigned to that person at the time of birth and includes trans men and trans women, persons with intersex variations and gender-queers. Additionally ‘establishment’ is defined as anybody or authority established by or under the control of the Central or State Act or by the government and also includes any company, body corporate, association or body of people or local authority which covers the purview of private sector as well.

Chapter II (Section 3) provides for prohibition against discrimination in relation to education, employment, health services, right to movement, right to enjoy goods and services, right to reside, unfair treatment and also to acquire public office.

Chapter III (Sections 4-8) addresses recognition of identity of transgender. It stipulates for a mechanism where transgender have right to self perceived gender identity. This can be done through an application made to the District Magistrate for issuing certificate of identity as a transgender person. This application is then referred to District Screening Committee comprising of Chief Medical Officer, District Social Welfare Officer, a psychologist or psychiatrist, a transgender representative and a government officer. This certificate will be

the proof of recognition of his identity. It further provides for the mechanism for change in certificate in case of change in gender of the transgender.

Chapter IV (Section 9) lays down the measures to be taken by Government. These measures are to protect the rights and interests which include steps to be taken for full participation and acceptance of transgender in the society. They also extend to rescue, protection and rehabilitation of transgender.

Chapter V (Section 10-13) stipulates the obligations of establishments and other persons such as non-discrimination in relation to employment, right to residence without arbitrary interference, rehabilitation and grievance redressal mechanism in an establishment of hundred people or more.

Chapter VI (Section 14-16) aims at educational, social security and health related issues of transgender. It protects the fundamental rights of education, non-discrimination, welfare schemes to support and facilitate livelihood, right to health including provision for separate HIV Sero-Survellance Centers, Medical care like Sex Reassignment surgery, insurance schemes for covering medical expenses and enhanced expertise and training for doctors to address specific issues.

Chapter VII (Section 17-18) deals with National Council for Transgender which consists of various members from Executive, Human Rights Commissions, and National Commission for Women, representatives of transgender community and Non-GovernmentOrganizations. The function of the council is to advise Central Government on policy formulation, monitor and evaluate the impact of the policies and review and coordinate activities of all departments of government relating to transgender.

Chapter VIII (Section 19) penalizes any person involved in enticing or compelling transgender to beg or do forced labor, obstructing right to passage to public place, forcing to leave household and harms or endangers the life of transgender with six to two months imprisonment and with fine.

Chapter IX (Sections 20-24) deals with the miscellaneous provisions which includes grants by central government and powers given to appropriate government to make rules, protection of government or any local authority from any prosecutions for the actions taken by them in good faith and power of the central government to remove the difficulties for the provisions which are inconsistent with provisions of this bill.

Loopholes and Suggestions

The Bill does not provide for the definition of discrimination as was given in 2014 Bill^ix. It laid down discrimination as distinction, exclusion or restriction on the basis ofgender identity

and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation. Due to lack of definition of discrimination, certain acts can qualify as discrimination onthe basis of social, cultural and of other fields but transgender won’t be able to enforce their rights under the umbrella definition of discrimination.

The definition of transgenders provided in the Bill has captured a very broad category of people in it. Transgenders are described as persons whose gender identity, gender expression or behavior does not conform to their biological sex. Persons who do not identify with their sex assigned at birth and also who do not identify themselves as either male or female are also covered under the purview of transgenders. It states that transgenders also include persons who intend to undergo Sex Re-Assignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, these are people who like to cross-dress the clothing of opposite gender, i.e. transvestites. This definition treats intersex and transgenders at the same pedestal. However the judgment^x stated that Gender identity refers to an individual’s self-identification as a man, woman, transgender or other identified category. The judgment had liberal interpretation to the term transgenders and allowed these persons to choose their genders as per their choice. Whereas in the legislation fails to protect right to self-identification.

The definition of establishment as given in the bill lacks the jurisdiction over private sector. It also does not cover the unorganized sector. Thus when there will be violation of the rights of transgender in private or unorganized sector they won’t be able to enforce their rights.

Obligations of Establishments provide for non-discrimination and for a complaint mechanism for establishments of more than hundred persons. However there is no complaint mechanism existing for the establishments which have less than hundred persons and the affected transgender will have to straight away approach the expensive and longer route like resort from police or court for enforcing their rights. Either complaint establishment should be developed in small scale organisations or a committee should be set up looking after complaints of these persons as per territorial jurisdiction. These committees should function in an expedite manner. This Bill of 2014 provided with Transgenders Rights Court which is taken away from this Bill. Such courts will help expedite the justice delivery to transgenders.

Since District Screening Committee is responsible for recognition of transgender persons, it is mandatory for transgenders to disclose their private parts to them for recognition of their identity. It should be made mandatory to have both, a female and a male doctor, during such disclosure. Along with gender identity, an examination should also be done regarding any sexually transmitted diseases in these persons. Since there are high chances of suffering from

depression, the psychiatrist should also examine these persons for depression. And then treatment should be given to them accordingly.

As the bill of 2014^xi provided for the transgender health care centers and subsidies to be provided for them, however, the current bill does not provide for separate health care centers and no subsidies are given to them. It provides for the coverage of medical expenses by a comprehensive insurance scheme which is not laid down in the bill.Transgenders should be given an insurance scheme while registering them during the gender identification. This will ensure two fold purposes. Firstly, it will act as an incentive to transgenders to register them as a transgender. And secondly, transgenders while examination and treatment, will be able to use this insurance scheme as well. Liberty should be given to the state governments to form such schemes as necessary in each state.

The National Council advises Central Government regarding the policies; monitor and evaluate schemes; review and coordinate activities of all departments of Government and NGOs. The council consists of 30 members from various fields like executive, representative from NGOs, commissions which are National Human Rights Commission and National Commission for Women, transgender community and various ministries which are Ministries of Health and Family Welfare, Home Affairs, Housing, Urban and Poverty Alleviation, Development, Human Resources Development, Rural Development, Labor and Employment and Departments of Legal Affairs, Pensions and Pensioners Welfare and NITI Ayog. Having such an elaborate council will lead to slow decision making and lack of consensus during the decision making by the council. For effective advisory opinion from the council, it is suggested to narrow down the people involved in the council or provide decision making in the hands of few without any interference from executive.

The offences and penalties in the bill lays down injury or harm which endanger the life, safety, health or well-being of transgender. Transgenders encounter derogatory comments, criticism and ridicule, abandonment, isolation, and expulsion from the family or marital home. In order to strengthen the laws and make stringent provisions for violation of rights of transgender, it is necessary to amend other laws like in Indian Penal Code and introduce sexual assault of transgender as an offence.Section 354 of IPC should be Assault, criminal force to any person with intent to outrage his modesty. Section 375 should be gender neutral and the usage of word ‘female’ be replaced with ‘any person’ keeping in mind repw of transgenders and even male rapes. US Department of Education’s Office of Civil Rights^xii requires schools to respond to the courts for sexual harassment and sexual violence against the transgender students.

The Bill of 2014^xiii had mechanism to propagate the bill for creating awareness amongst the people and initiatives to be taken by the government, however the current bill does not

provide for any such mechanism. This Bill also neglects reservation for transgenders for employment as was provided in the Bill of 2014. Sensitization drives, awareness campaigns, workshops, seminars and incentives for employment and integrating them in the society will help curbing discrimination and other human rights violation against transgenders. To achieve this government programs should be initiated and Non-Government organizations working towards betterment of conditions of transgenders should be promoted.

Comparative Global Study

In the United States of America, a marriage is valid unless there is an annulment or by divorce. In the instances where one of the spouses changes the gender, the court held conflicted views in regard to whether the marriage is valid or invalid^xiv. Thus the position till date is not settled. However in India, having unnatural sex is illegal^xv and thus marriage amongst transgender is illegal. Since transgenders are not given the equal status in regard to marriage rights in India, they should be given the same where they have right to marry and live with the person of their choice.

Also there are no laws for parentage by transgender. As countries like California^xvi, Colorado^xvii, Connecticut^xviii, Columbia^xix, Illionis^xx, Indiana^xxi, New Jersey^xxii, Massachusetts^xxiii, Pennsylvania^xxiv and Vermont^xxv have second parenting technique for adoption of children by transgender, similar can be considered by India and to give validity for adoption by transgender. Similarly they should also be given parenting rights where they have liberty to adopt the child and parent him. This will increase the acceptability of transgenders in the community and will lead to reduction against discrimination amongst them.

Also this bill does not provide for the specifications for gender identity in the prisons. Transgender should be searched by the same gender. Also the cells allotted to transgender should be according to their requirements and not as per their genitals. In US, Department of Justice, Prison Rape Elimination Act (PREA), bans torture on transgender and also provide cells to them by ignoring their genitals as per their requirements and rather for the same purpose^xxvi.

This legislation provides for employment opportunities to transgender but does not specify the opportunities. 18 countries at present like New Zealand, Australia, Austria, Belgium, Denmark, Finland, France, Norway, Spain, Sweden, UK and Germany^xxvii allows transgender to serve openly in military. However no such provisions are there for the intake in military in India. Since the bill is silent on the employment opportunities, it means employment covers all forms of employment and there would be no demarcation on any basis. Since in military there is not any relation of sexuality while serving the nation, equal opportunity must be given to transgenders in being part of defense forces of India.

This legislation is silent about the laws relating to involvement of transgender in sports and the criteria required by them to qualify for participation. In US, National Collegiate Athletic Association allows transgender students to participate in sex segregated sports consistent with their gender identity as long as they are receiving hormone therapy^xxviii. For example, under the rules, a female transgender must take testosterone suppression medication for at least a year before competing on a female team. India, which is developing and enhancing in sports arena, should have laws pertaining to this field which will help in optimum utilization of resources. However, recently the first ever State Level Transgenders Athletic Meet^xxix in Kerala, India organized by the government, which gave boost to transgenders and helped them in identifying themselves as capable of contributing to the society. Such programs should be encouraged and similar provisions be specified for the same.

Conclusion

This Bill can bring a change in the way people perceive and treat transgenders if implemented effectively. However at the same time this bill lacks the distinction between transgenders and inter-sex.

Also if loopholes mentioned above if are dealt with, it will result in better implementation of this bill which can go a long way inprotecting the rights of transgenders. This Bill reflects the essence of Article 14, 19 and 21 as transgenders will face better treatment contrary to what they have been subjected to over the years.

An immediate progress should be made in propagating about the transgenders rights and this bill. Incentives should be given to Non-Government Organizations for spreading awareness and also for uplifting current situation of transgenders. Employment schemes should commence for transgenders by the government. Private sector should also be given some incentive for hiring transgenders in their sector.

Literacy program and other development programs like Rajiv Gandhi AwasYojna, Indira AwasYojna and other schemes of Ministry of Social Justice and Environment should immediately commence for needy persons from transgenders community. This will help in betterment of the current situation of transgenders and will help curb discrimination and other forms of violence against them.