Parliament Passes Transgender Persons (Protection of Rights) Bill

The Transgender Persons (Protection of Rights) Bill, 2019, which was passed by the Lok Sabha on August 5, 2019, during its monsoon session, was cleared by the Rajya Sabha by voice vote today, without any amendments.

The bill moved by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot, is aimed at protecting the rights of transgender persons by granting them recognition and making welfare provisions for them.

Salient Features

The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities

It prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.

It further criminalizes denial of use of public places to transgenders, removal of transgenders from household and village, etc.

To ensure identity of a transgender, the Bill prescribes that a transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as 'transgender'. Further, a person may obtain a revised certificate if he/she undergoes surgery to change his/her gender either as a male or a female.

The draft also proposes the establishment of a National Council for Transgender Persons consisting of various members from Central Ministries, NHRC, Niti Aayog, and State Governments, to monitor the impact of policies, legislation and projects with respect to transgender persons and to also redress their grievances.

Parliamentary Debate

While most members expressed contentment that a legislation recognizing the rights of transgenders had finally made it to the Parliament, few other members pointed out "technical shortcomings" within the Bill and sought that it be referred to the Standing Committee. The most common concern raised during the debate was the failure of the bill to address the fundamental right of a transgender to determine his/her identity.

The contentious provisions in the bill include power conferred on District Magistrate to grant certificate of identity to Transgender applicants.

Talking about this provision, BJD MP from Odisha Sasmit Patra on Friday pointed out that the Bill was silent as to what recourse will a person have in case the DM refuses to recognize a transgender or to issue a certificate to him/her.

INC MP from Karnataka, Dr L. Hanumanthaia questioned the logic behind empowering a DM to grant a certificate of identity. "How can a DM certify that an individual is a transgender," he asked. He suggested that the government should rather confer such powers on a govt. doctor.

Defending the provision, Union Minister Gehlot said that empowering a medical officer to grant certificate of identity will attract the humiliating complexities of medical examination of the applicants.

SP MP Jaya Bachchan on the other hand, opposed the very idea of Certification. She said that the bill had been introduced in a hurry, not contemplating that the very idea of Certification has an effect of segregating the transgenders from the society, thereby discriminating and humiliating them.

Apart from the above, it was argued that the Bill negates right of self identification of gender. Further, it had to not paid attention to geographical remoteness and availability of resources to approach the National Council and suggestions were made that State Councils, just like State Councils for Women, should also be established to address the grievances of the transgenders.

DMK MP Tiruchi Siva proposed that instead, a National Commission should be established, with quasi-judicial powers.

Certain MPs also proposed that the Bill should prohibit and punish mockery of transgenders in movies, songs or other forms of media and must include stringent penalties for sexual offences committed against transgenders.

Speaking on a provision prohibiting establishments from discriminating against transgenders, Congress MP Rajeev Gowda said, even though the Bill mentions that establishments will appoint a complaint officer to redress the grievances of transgenders, there is no clarity on what the functions of the complaint officer will be. "There is a need to ensure a proper redressal mechanism for the same," he said.

In reply, Gehlot said that the guiding provisions pertaining to complaint officers' duties and functions were already in place, in the form of procedure followed by complaint officers vis-à-vis other backward communities.

Leader of the opposition, Gulam Nabi Azad stated that the most effective way of uplifting the transgender community was by ensuring education and employment opportunities for them. In this regard, he suggested that the Bill should encapsulate provisions for providing reservation to the transgenders in public employment.

AITC MP Shanti Chhetri had proposed that provisions pertaining to Right to marry and inheritance of property for transgenders must also be included in the Bill. She also pointed out that the Bill gave no guidelines as to how the DM should certify gender.

The Bill will now be placed before the President for his assent.