Transgender Persons (Protection of Rights) Act, 2019

Purpose

The Transgender Persons (Protection of Rights) Act, 2019 aims to recognize transgender and ensure them all the rights and protection given under laws and constitution.

Background

Transgender population is maximum in Uttar Pradesh, according to the 2011 census. On an overall basis, their population is over 5,00,000. The literacy rate is 56% only. The reform process for transgender started in 2009 when the Election Commission asked all the constituencies to provide the option of others in electoral registration forms. In 2014, in NALSA v/s Union of India case, SC recognized them as third gender. Also, it was ruled that they will be recognized as OBC and would have reservation provisions for the same. In 2019 Madurai branch of Madras High Court banned the sex reassignment surgeries of the children or minors. 

Provisions

• The act defines transgender as one whose gender does not match the gender which is assigned at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani, and jogta. It does not include Gay, Lesbians, and Bisexuals. A transgender person can make an application to the District magistrate for identification under the category of Transgender. Also if a transgender person undergoes sex reassignment, he may apply for the revised certificate. The act gives the right to self-identity.
• It gives these people the right to reside in one's household. The act gives the right to move, occupation, employment rights, etc.
• The act calls the state government to take welfare measures. Also, it states that the government will provide separate health facilities like sex reassignment facilities and compulsory medical insurance.
• The act recognizes following acts as offenses: forced or bonded labor (excluding compulsory government service for public purposes); denial of use of public places, removal from the household, and village; physical, sexual, verbal, emotional or economic abuse. There is a punishment of imprisonment ranging from 6 months to 2 years along with fine.
• It calls for setting up of National Council for Transgender Persons. The members included in the council are - Union Minister for Social Justice (Chairperson), Minister of State for Social Justice (Vice- Chairperson)  Secretary of the Ministry of Social Justice, one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog and the National Human Rights Commission. The council will have the representation of states. The Council will also consist of five members from the transgender community and five experts from non-governmental organizations. The council will play an advisory role along with monitoring the implementation of various policies, acts, etc. It will also act as a grievance redressal body.

Analysis

The act is good as it addresses the discrimination and provides them fundamental rights.

However, there are various challenges:

• The act does not have a provision of reservation or any type of positive discrimination.
• There is no provision for a national commission which is different from the council as the commission is a statuary body. It has no provision for special courts dealing with transgender issues. The issue of collective begging is also not resolved.
• There are no separate recognition to people with intersex variations who are different from transgender as people with intersex variations have different biological features than assigned at birth.

Conclusion

Globally in countries like Australia and Argentina gender identity is recognized as septate from biological identity. Canada recognizes crimes against transgenders as hate crimes. In India, Tamil Nadu had constituted Aravanis Welfare Board in 2008 providing a pension for community and creating awareness in educational institutes related to the community. West Bengal and Kerala are also vying for their upliftment. States like Tamil Nadu have also started making provisions for separate basic facilities like public washrooms etc. The act will lead to the actual empowerment of the transgender community.