The Transgender Persons (Protection of Rights) Act: An Overview

Gender identification was given a lot of importance as a component of civil identity after independence, and the government or society refused to recognise transgender persons as third sex. This community faced deprivation of important rights such as the right to vote, the right to own property, the right to marry, the right to education, etc. Despite the existence of Articles 14, 15, 19, and 21 in the Constitution of India, that strictly prohibit discrimination any on criteria, the discrimination exists.

After several decades of struggle for justice and recognition, the Honourable Supreme Court decriminalised Section 377 of the Indian Penal Code in the watershed judgement of NALSA v. Union of India (2018), and through this judgement, the Supreme Court affirmed the Constitutional rights of this community and also directed the Central and State Governments to take steps for the welfare of the transgender community and treat them as third gender for the purposes of Part III.

Following the above judgement, the Transgender Persons (Protection of Rights) Bill was introduced in Parliament and was passed by both houses. It received the President's assent on December 5th, 2019 and came into effect on January 10th, 2020.

What does Transgender Persons Act Define?

People who identify as transgender do not fit the usual gender conventions that only recognise male or female as genders. Due to society's rejection of their gender identification, individuals have experienced physical violence, social marginalisation, and discrimination. The Transgender Person (Protection of Rights) Act, 2019, was passed by the government in order to ban discrimination against transgender people in the areas of work, education, and health services. Welfare measures have also been established to safeguard transgender people's rights.

Transgender Person

Under the Act, a transgender person is a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman, people with intersex variations, gender queer, and people having such socio-cultural identities such as kinner, hijra, aravani, and jogta.

Right against Discrimination

The Act expressly prohibits discrimination against transgender people in education, employment, healthcare, access to or enjoyment of goods, facilities, opportunities, benefits, or privileges available to the general public, right of movement, right to reside, purchase, rent, or occupy any property, opportunity to hold any public or private office, and access to a government or private establishment in whose care or custody such transgender is.

Right to Self-Perceived Gender Identity

The Act provides that transgender people have a right to be recognised as such under the Act. A transgender person has the right to a self-perceived gender identity. A person may apply to the District Magistrate for a certificate of identity to be recognised as a transgender person. Such a certificate is proof of recognition as a transgender person. If a transgender person undergoes surgery to change gender as a male or female, then such a certificate may be revised with no effect upon the rights and entitlements of such person under the Act.

Right to Reside

The Act gives every transgender person the right to reside in the house of residence of their parents or immediate family members. They have a right not to be excluded from such households and a right to enjoy the facilities in a non-discriminatory manner.

Where the family or immediate family is unable to take care of such a person, the person may be placed in a rehabilitation centre.

Education

Any government-recognized or funded educational institution should provide inclusive education and co-curricular opportunities to transgender people without any discrimination.

Healthcare

The Act requires the appropriate government to take steps to provide healthcare facilities to transgender persons. These measures may include separate HIV surveillance centres, medical facilities for sex re-assignment surgery and hormonal therapy, reviewing medical curriculum to address their health issues, facilitating access to hospitals and healthcare institutions, and making provisions for coverage of medical expenses.

Welfare measures by the Government

The Act requires the appropriate government to take measures to secure the full and effective participation of transgender people in society. The government must develop policies to protect their rights and interests, as well as ensure their access to welfare programmes. Such schemes should be transgender sensitive, non-stigmatising and non-discriminatory.

The National Council for Transgender Persons

The Act empowers the Central Government to constitute a National Council for Transgender Persons with the Social Justice and Empowerment Minister as its ex-officio chairperson.

The Council will perform functions such as advising the Central Government on the formulation of policies and programmes; monitoring and evaluating the impact of such policies on achieving equality and full participation of transgender persons; redressing grievances etc.

Offences and Penalties

The Act considers the following as an offence against transgender people:

• Compelling or enticing transgender people to take part in forced or bonded labour.

• Denying or obstructing the right of passage to a public place.

• Forcing or causing a transgender person to leave a household or any place of residence.

• Harming or endangering the life, safety, health, or well-being of a transgender person, physically or mentally

• Engaging in sexual or verbal or emotional or economic abuse of transgender people

In all such cases, the person is punishable with a fine and imprisonment ranging from six months to two years.

Conclusion

The Act has done away with many criticisms of the earlier bills passed in this regard, such as lower punishment for crimes against transgender persons and criminalisation of begging, as it is what most transgender persons depend on for livelihood, but it fails to incorporate many guidelines of the Supreme Court. The Act provides a much lesser punishment for the sexual abuse of a transgender person than the sexual abuse of a woman. Moreover, the Act does not include any provision allowing transgender people to choose their own gender, and transgender people are not adequately defined. Despite the Supreme Court's ruling in the NALSA judgement from 2014, which sought to grant reservations to transgender people as socially and educationally backward classes, the Act is quiet on the subject. Thus, there needs to be an immediate address to these issues in order to protect the trans-persons in true essence.

Frequently Asked Questions

Q1. What is ‘Garima Greh’?

Ans: The Ministry of Social Justice and Empowerment officially opened the transgender people's shelter home 'Garima Greh' in 2020. The "Shelter Home for Transgender Persons" programme offers housing, food, clothing, recreational opportunities, yoga classes, physical fitness equipment, library services, legal assistance, technical guidance for gender transition and surgeries, capacity building for trans-friendly organisations, employment, etc.

Q2. What else can be done to advance transgender people?

Ans: Some initiatives may include:

• The government and society must design and implement an inclusive strategy for transgender people.

• According to the NALSA Judgement, the transgender population needs to be guaranteed access to free legal assistance, education, and social rights.

• To begin their career as an entrepreneur or businessman, it must be ensured that they have access to generous credit facilities and financial aid.

• To address the problems pertaining to sexual minorities, awareness and documentation are two crucial strategies.

Q3. Is transgender is legal in India?

Ans: Yes. The Act allows trans genders to register themselves as third gender by giving them the right to self-perceived gender identity.

Q4. What initiatives have been taken up by the Government for trans genders?

Ans: In addition to other initiatives, the Central Government framed Transgender Persons (Protection of Rights) Rules, 2020. The regulations aim to recognise the identity of transgender people and forbid discrimination in the areas of healthcare, education, employment, property ownership or disposal, access to and use of public services and benefits, and holding public or private office.