The 'imperfect' transgender persons (Protection of Rights) bill of India - Seeker's Thoughts

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The 'imperfect' transgender persons (Protection of Rights) bill of India

Introduction: - Transgender person and their rights in India

Inclusion of transgender in India has been always  a critical issue. Transgender people have existed in every corner of the world and in every culture, race and class since the human life has exited. Many countries have not accepted transgender as a third gender yet because they consider that the world is two sex based- Male and Female. This lacks the basic understanding and concept of biology. 

Transgender community remains the most ignored community even after the Supreme Court recognized them as third gender in 2014. They have been facing social rejection, extreme level of discrimination, and they are subjected to violence. They are not able to get job, better education or better life as they are not treated as human especially in India life is too hard for transgender.

Transgender people are four times more likely to live in poverty because of non-employability and unemployment. 20% of transgender people report experiencing harassment, mistreatment or discrimination on the job. Many transgender are harassed by the police. Many of them commit suicide because of rejection at multiple levels, and family included among abusers most of the time. 

Transgender Exclusion: More 
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. As per the National Human Rights Commission survey, only 2% of transgender persons in India live with their families. 

In 1994, transgender persons got the voting right but the task of issuing them voter identity cards got caught up in the male or female question.

The other fields where the transgender feel neglected are inheritance of property or adoption of a child, and  they are often pushed out as a social outcaste and many ended up begging and dancing.  Many face even human trafficking and sometimes they even engage themselves as sex workers for survival and get raped too.

Constitutional rights of transgender people
Preamble to the constitution mandates justice-social, economic and political equality of status. Even though the constitution of India give the equal rights to every citizen of the country without any discrimination. Transgender faces every kind of harassment, abuse, and disrespect from so called “educated” society.

Articles 14, Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth, which is certainly non accessible to transgender. 
Article 21 ensures right to privacy and personal dignity to all the citizens. Articles 23 prohibits trafficking in human beings as beggars and other similar forms of forced labour and any contravention of these portions shall be an offence punishable in accordance with law.

As per the constitution most of the protections under the fundamental rights are available to all personas with some rights being restricted to only citizens. Beyond this categorization the constitution makes no further distinction among rights holders.

The transgender persons (Protection of Rights) Bill- Criticism 

Lok Sabha Passed the The transgender persons (Protection of Rights) Bill, 2016,which aims at defining the transgender people and prohibiting discrimination against them, was passed with 27 amendments in December 2018. However, it raised criticism that the government did not have proper understanding of transgender community, and the The bill was not accepted by the several representatives of the transgender community and activists. They  called the Transgender Persons (Protection of Rights) Bill as "regressive" and said it disregarded most recommendations of the Parliamentary Standing Committee.

The Bill proposed setting up a District Screening Committee comprising five people, including a medical officer and a psychiatrist to certify a transgender person. This process is in direct violation of the Supreme Court’s directions in National Legal Services Authority v. Union of India (or NALSA), 2014 that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS).

To make matters worse, the Bill criminalises begging, thereby targeting transgender persons who rely on begging for sustenance. Such provisions disregard the lived realities of transgender persons for whom begging often is the last resort

The Bill does not provide for employment opportunities through reservations, disregarding the directions of the Court in NALSA to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
The Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.
The Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.