Everything wrong with India’s Transgender Persons (Protection of Rights) Act, 2019

India’s constitution when structured has promised each citizen the right to justice, liberty, equality and fraternity. Our country has drafted it’s constitution to make India a sovereign socialist secular democratic republic, but somehow have forgotten to mention laws and rights for an entire community. In today’s article, we talk about the issues our trans community has against the Transgenders person’s protection of rights bill passed in the year 2019. 

Before starting with the issues of the bill, its essentials we know a few things about our sex assigned at birth and our gender. Generally, we are assigned with sex on the day we are born as a male or a female based on our sexual organs. But our gender does not rely only on our biological sex, as the World Health Organization defines gender as the result of socially constructed ideas about the behaviour, actions, and roles a particular sex performs. Below are the major reasons why transgenders are calling the ‘Transgenders Person’s Protection of Rights Bill’ regressive. 

The bill doesn’t define the term ‘Transgender' accurately.

One of the major problems our transgender community is facing with this bill is that there is no proper definition of what ‘Transgender’ means as it has been confused between being a trans and an intersex person.

According to Wikipedia, “Transgender people have a gender identity or gender expression that differs from their sex assigned at birth. Other definitions of transgender also include people who belong to a third gender, or else conceptualise transgender people as a third gender.”

On Wikipedia, the term intersex is defined as

“Intersex people are individuals born with any of several variations in sex characteristics including chromosomes, gonads, sex hormones or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies."

This proves that being a transgender and an intersex person is a completely different phenomenon, as being an intersex person is due to physical reasons and being transgender is due to gender dysphoria in the mind. 

Direct Discrimination as Sexual violence punishment maximum till 2 years.

The transgender community is upset about the bill as, it clearly states that “Harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” Whereas if the same activity is done with a cisgender person, the law punishes them with a maximum of 6 - 7 years of imprisonment. This raises the concern in the community as it seems that the country is trying to discriminate between cisgender and transgender people. This bill showcases that the above offences when done with transgender individuals are not as severe as cisgender individuals.  

No proper reservation made for education and qualification. 

When the ‘Rights of Transgender Persons Act, 2014’ was proposed, it mentioned “All Government institutions of primary, secondary and higher education and all primary, secondary and higher education institutions receiving aid from the Government shall reserve two per cent of the total seats in each class or course for transgender persons:” and “The appropriate Government shall, within a period of one year from the commencement of this Act, provide incentives to employers in the private sector to ensure that at least two per cent of their workforce is composed of transgender persons within a period of five years from the commencement of the Act.” But in the bill which was passed by the government, none of this has been mentioned, giving no reservations to the transgender community.

Made the bill based on stereotype without consulting the community. 

One of the major concerns the transgender community has with the bill is that this bill was made and approved without even consulting a single trans person. This bill is based completely on transgender stereotype and does not protect the culture of the trans community. This bill also seems to have their basic profession of begging a criminal offence as the Section 18 (a) clearly states that “whoever compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by Government; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” This worries the Hijra community as they have a guru-chela system and if a chela puts a false allegation on their guru’s there is a possibility of injustice against them. 

If a person identifies as transgender they need to obtain a certificate by District Magistrate.

When the NALSA judgement was passed by the supreme court, it made sure to give transgender people the fundamental rights they deserved. The judgement clearly states that “Transgender persons’ right to decide their self-identified gender is also upheld and the centre and state governments are directed to grant legal recognition of their gender identity such as male, female or as the third gender.” But the ‘Transgender Persons (Protection of Rights) Act, 2019’ section 5, requires a completely different approach to get an identity as a transgender. This bill states that “A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed:” hence this bill upsets the trans community as being a transgender is not a physical attribute which can be proven through test results or documentation. Being a transgender is a psychological phenomenon, and is usually a result of gender dysphoria. The bill doesn't even specify the procedures to be taken if the application does not get approves, which has put the trans community in misery. 

The transgender community already faces a lot of issues like physical and mental assault and discrimination, hence the bill was supposed to be a ray of hope to help them get equal rights and standing in our society. This law was passed promising to safeguard the rights of the transgender community, but it has taken away most of their rights as it clearly shows discrimination against them. Hence the transgender community is requesting our government to either scrap the bill or make necessary amendments to it. 

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