Question – The Transgender Persons (Protection of Rights) Act 2019 is being seen as an effective tool to end discrimination against transgender persons, but in practice it is still far from the landmark judgments of the Supreme Court. Discuss. – 16 September 2021
A transgender person is a person whose gender does not match the gender assigned at birth. This includes trans-men and trans-women, intersex differences, and gender queer. It also includes persons with socio-cultural identities, such as eunuchs-hijras.
The Transgender Persons (Protection of Rights) Act, 2019 was passed by the Parliament in the year 2019. This Act of the Central Government has included provisions to provide a strong working mechanism towards social, economic and educational empowerment for the transgender people.
Supreme Court’s verdict in this regard
- National Legal Services Authority v/s Union of India: Supreme Court upheld the right of the transgender persons to decide their self-identified gender and directed the centre and state governments to grant legal recognition of their gender identity as male, female or the third gender.
- Justice K S Puttaswamy (Retd) v/s Union of India: Supreme Court declared the right to privacy as a fundamental right under Article 21. The judgment regards sexual orientation as an essential and innate facet of privacy.
- Navtej Singh Johar v Union of India: Supreme Court declares that Section 377 violates Articles 14, 15 and 21. The award extends constitutional safeguards to sexual minorities in India. Recognition of sexual orientation as an inseparable component of identity, commitment to the rights of minorities in accordance with constitutional morality are important contributors to the decision.
Protection of transgenders under Act to prevent discrimination
- Proof of Identity for a Transgender Person: A transgender person can apply for a certificate of identity to the District Magistrate, showing the gender as ‘transgender’. Revised certificate can be obtained only if the person undergoes surgery to change his/her gender as male or female.
- Welfare measures by the government: The Bill directs that the concerned government shall take measures such as rescue and rehabilitation, vocational training and self-employment etc. to ensure full inclusion and participation of transgender persons in the society.
- Punishment: According to the Act, offenses against transgender persons shall be punishable with imprisonment of six months to two years and with fine.
- Right of residence: Every transgender person shall have the right to reside and be included in their household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation center on the orders of a competent court.
- Employment: No government or private entity can discriminate against a transgender person in matters of employment, including recruitment and promotion. Every establishment is required to designate a person as a Grievance Officer to deal with complaints in respect of the Act.
- Education: Educational institutions funded or recognized by the concerned government shall provide inclusive education, sports and entertainment facilities for transgender persons without any discrimination.
Why is it not completely successful in complying with the directions of the Supreme Court?
- Definition of Transgender: The definition of transgender in the Act mixes trans issues with those of the intersex community. Whereas trans people are identified as those who feel they were born in the wrong body, and intersex are those who are born with physical characteristics that do not conform to the gender binary.
- Against self-identification: Powers are given to the District Magistrate to check the correctness of the medical certificate, which is in direct contravention of NALSA, which affirmed the right of self-determination of gender as male, female or transgender Of. The new procedure will also subject transgender persons to intrusive medical tests.
- Issue of discrimination: Although the Act prohibits discrimination, it does not explicitly include a definition of discrimination which tabulates the violations faced by transgender persons. In the Navtej Singh Johar case, the SC observed that transgender persons often face abuse and sexual harassment at the hands of law enforcement officers.
- The Act should recognize that gender identity should go beyond biological. Along with this there is a need for a comprehensive survey on the socio-economic status of the community.
- There is a need for special courts to deal with crimes against transgenders expeditiously and effectively for prevention of crimes.
- It is also necessary to set up a grievance redressal mechanism to address cases of discrimination and provide reservation to trans persons.
- And lastly there is a need for trans-friendly registration and non-discrimination and training health workers to provide non-judicial care.