Transgender : Issues and demands

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Facts:

  • Things are changing. Example: Delhi government has  decided to introduce the ‘transgender’ category in forms for registration of birth and death certificates
  • SC has clarified to the Centre that lesbians, gays and bisexual persons does not come under the category of transgenders
  • While in 2014, based on the Census, five million acknowledged their transgender status, activists say their number could be much higher.
  • Over 66% of them live in the rural areas. The Census data also highlighted the low literacy level in the community, just 46% in comparison to the general population’s 74%.
  • In 2014, the Supreme Court in National Legal Services Authority v. Union of India pointed out that reservation is one of the time-tested ways of enabling historically disadvantaged populations to join the mainstream.

Concerns:

  • The community has laid stress on the point that for them, dignity, respect, and access to health care are non-negotiable basic rights.
  • Self-identification should be the sole criterion for gender recognition legally without the need of any other psychological, medical, or “expert” intervention.
  • Self-declared identity should also form the basis for access to social security benefits and entitlements.
  • The community maintains that the basic principle of “nothing about us, without us” must be applied for all trans and hijra rights, health and welfare activities.
  • The community has rejected the setting up of district screening committees to recognize transgender persons as they say they are not objects or people with a contagious disease who need to be medically screened.
  • Their argument is that a medical assessment violates their right to self-identification and gender autonomy which are protected under the right to life and personal liberty guaranteed by the Constitution.

The Kochi Metro example

  • Will the Bill have provisions to protect them from discrimination? The experience so far has been that many who struggle to access jobs are discriminated against, forcing them to drop out.
  • For example, in May, when the Kochi Metro Rail Limited formally employed 23 transgender persons, eight of them dropped out after being unable to find suitable accommodation based on the monthly wages they drew (between Rs. 9,000 and Rs. 15,000). Many households were unwilling to let out their houses to them. They faced other forms of discrimination too.
  • Therefore, an effective enforcement mechanism is vital for the adjudication of anti-discrimination claims brought forward by transgender persons.

Stigma and discrimination

  • Accessing even the rights they already have is not easy. For example, even in an enlightened city such as Mumbai, young transgender persons seeking admission to college approach the transgender group leader, normally a person with clout, who then meets the college principal and, in most cases, secures their admission. Thereafter, the transgender person has to be on “best behaviour” and not stand out as that could compromise the admission.
  • Hopefully the Bill will provide protection to transgender persons from violence and stigma which is a major factor. Often they are denied passage in public spaces and harmed or injured.
  • The hijra community, especially those who are a part of the ‘guru-chela’ structure in Hijra gharanas and practise the traditions of “mangti” and “badhai”, are often harassed, detained under begging prohibition laws, and forced into begging homes.
  • In the case of transgender children, their families, unable to accept their status, subject them to domestic violence, which often compels these children to leave home.
  • Though several transgender persons have made a mark in the beauty and fashion industry, joined the police force, the academic world and even the Indian Navy, there is need for a comprehensive survey on the socio-economic status of the community.
  • Transgender welfare boards are needed in different States. Transgender persons should take part in the national Census to generate accurate data.

Recognizing their Identity

  • Transgender identity is not yet recognised in criminal law, whether as the third gender or as a self-identified male or female.
  • There is also no clarity on the application of gender-specific laws to transgender persons. Section 377 of the Indian Penal Code is applicable to transgender persons (i.e., those who were male at birth). This amounts to double persecution.
  • Finally, the community wants mental health counselling support and free gender transition surgery facilities in government hospitals.
  • There are other issues that worry transgender persons such as their right to property, adoption, marriage, pension, and care for the old and the disabled.
  • Some of these issues may be resolved when the Bill, taking note of their concerns, is passed. The Bill could be the first big step towards equality and their recognition in the mainstream.

What are the Supreme Court Directives towards the Transgenders?

  • SC provides a legal status for the Transgender.
  • It bestows a legal recognition to that population of the Transgenders who wish to get transitioned within male or female through surgeries.
  • The Court opposes Biological tests for the procedure of recognition and encourages psychological tests.
  • The SC declares that the suggestion of SRS – Sex Reassignment Surgery as a condition for the changing the Tran gender’s gender to be illegal.
  • The SC had also ordered the Central and State governments to extend educational reservations for the Transgender.
  • It has also insisted on creating awareness so that they are not stigmatized by the public.

What are the major issues faced by the transgender population in the society?

  • Limited available data show that the prevalence of HIV and STI – sexually Transmitted infections are high among the transgender population as compared to the normal population. They are highly vulnerable to sex related issues.
  • They are also vulnerable to mental health problems like depression, suicidal tendencies, lack of social support and violence related stress.
  • The most affected transgender population are the Teenagers in identifying themselves on the basis of the gender which is opposite to that of the biological sex. This leads to shame, fear, transphobia, etc.

 

Transgender Persons (Protection of Rights) Bill, 2016

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The Lok Sabha has passed the Transgender Persons (Protection of Rights) Bill, 2016, which seeks to empower the transgender community in the country by providing them a separate identity.

Aims

  • To protect transgenders from discrimination
  • To evolve a holistic mechanism for the social, economic and educational empowerment of marginalized transgenders community

What will it do?

  • The Bill will benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against them and also bring them into the mainstream of society.
  • It will lead to greater inclusiveness and will make the transgender persons productive members of the society.
  • The Bill will make all the stakeholders responsive and accountable for upholding the principles underlying the Bill.
  • It will bring greater accountability on the part of the Union Government and Slate Governments/UT administrations for issues concerning Transgender persons.

Why all this is necessary?

  • Transgender community is among one of the most marginalized communities in the country because they don’t fit into the stereotypical categories of gender of ‘men’ or ‘women’.
  • They face problems ranging from social exclusion, ostracism and discrimination, as well as verbal, physical and sexual abuse.
  • They don’t have access to education and employment opportunities, ending up into organised groups, forced begging or demanding money.

Features of Bill:

  • The Transgender Persons (Protection of Rights) Bill, 2016 Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male. Additionally, the bill states that the person’s gender must not match the assigned gender at birth.
  • Every transgender person in the country must obtain an identity certificate which will be used as the proof of recognition of identity as a transgender person and to avail all the rights under the Bill.
  • The identity certificate would be granted by the District Magistrate on the recommendation of a Screening Committee.
  • The screening committee for recommending the certificate would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
  • The Transgender Persons (Protection of Rights) Bill, 2016 prohibits discriminating with transgender people in education, employment, healthcare and other areas
  • The Bill directs the central and state governments for providing welfare schemes to the Transgender community in these areas.
  • The Bill also provides for the punishment of up to two years’ imprisonment and a fine for offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc.

Journey of the bill and Analysis:

  • The transgender community saw the Supreme Court’s landmark decision in NALSA v. Union of India as a victory, as it recognised that transgender persons have fundamental rights.
  • The judgment was followed by a private member’s Bill, the Rights of Transgender Persons Bill, 2014, which was unanimously passed in the Rajya Sabha.
  • Instead of introducing it in the Lok Sabha, the Ministry uploaded its own Bill, the Rights of Transgender Persons Bill, 2015, on its website in December for public comments.
  • The 2015 Bill, which was largely based on the 2014 Bill, did away with the national and State commissions for transgender persons and transgender rights courts.
  • The Bill was fairly progressive since it granted a transgender person the right to be identified as a ‘man’, ’woman’ or ‘transgender’.
  • However, the 2016 Bill, that was finally introduced in the Lok Sabha, came as a shock.
  • A highly diluted version, it also pathologised transgender persons by defining them as “partly female or male; or a combination of female and male; or neither female nor male”.
  • Met with backlash, the Ministry set up an expert standing committee on social justice and empowerment to examine the Bill.
  • The standing committee invited public comments and thereafter held multiple rounds of consultations.
  • Its report criticised the 2016 Bill for its stark deficiencies and recommended re-drafting the definition of a ‘transgender person’ to make it inclusive and accurate; providing for the definition of discrimination and setting up a grievance redress mechanism to address cases of discrimination; and granting reservations to transgender persons.
  • However, its substance lay in its insistence that the law must grant equal civil rights to transgender persons (marriage, divorce and adoption), thus opening the door for the legal system to take steps to undo its oppressive heteronormative (the presumption that heterosexuality is the norm) and cisgendered (the presumption that people’s gender identity is aligned with their anatomical sex) foundation.
  • The Ministry’s decision to re-introduce the 2016 Bill disregards the pre-legislative consultative policy which requires Ministries to grant a minimum of 30 days for public comments and to place a summary of feedback/comments received from the public/other stakeholders on their website.

Source:

http://www.thehindu.com/todays-paper/tp-opinion/against-gender-rights/article21153522.ece