The Transgender Persons (Protection of Rights) Bill 2016 introduced in the lok Sabha by Minister of Social Justice and Empowerment Thaawarchand Gehlot has created scope of dignified living for transgender persons in India. It was awaited for a long time by human rights concerned groups, especially by the transgender community.
The proposed legislation is to provide protection to the rights of transgender persons and also promote their welfare.
According to Census 2011, India has six lakh people belonging to the transgender community. The bill defines transgender as a person who is neither wholly female nor wholly male or a combination of both and whose sense of gender does not match with the gender assigned to that person at the time of birth. They also include trans-men and trans-women and persons with inter sex variations and gender queers.
The legislation ensures protection by prohibition against discrimination in form of unfair treatment, denial and discontinuation to any transgender persons in educational establishments and services, employment and occupation and healthcare services. It also includes unfair treatment with regard to the right to reside, purchase, rent or to otherwise occupy any property. The bill has made provision that it will be obligation of public or private establishments to prevent discrimination against any transgender person to ensure barrier-free access. The educational institutions funded and recognized by the Government will create opportunities of inclusive education to transgender persons and have to ensure their participation in all kinds of activities, including sports and cultural events in the institution.
The transgender persons will have right to avail a certificate of identity to be issued by the District Magistrate on the basis of the recommendation made by a district screening committee where the representatives of the transgender community will be members. The bill further says that the Central and State Governments will take measures for effective participation of transgender persons and their inclusion in all spheres of social life through different Government schemes and programmes specially formulated for them to address their genuine need.
The bill proposes a National Council for transgender persons headed by the Union Minister in charge of the Ministry of Social Justice and Empowerment with representatives not below the rank of Joint Secretaries to Government of India of different related departments including, Ministry of Health and Family Welfare, Home Affairs, Human Resource Development, Rural Development, Urban Development and Poverty Alleviation, labour and Employment, legal Affairs, Pension and Pensioners Welfare , NITI Ayog, National Human Rights Commission, and National Commission for Women to advise the Central Government on formulation of policy, programme, legislation and project with respect to transgender persons. The national council will coordinate with various departments, Government and non Government agencies dealing with matter relating to transgender persons.
The bill has provision of penalties and imprisonment against offences committed against transgender persons which is minimum six month and can go up to two years with fine. The offences include forced to leave household, village or other place of residence, forced bonded labour, denial of access to public place, causing physical, sexual, verbal and emotional and economic abuses.
The issues of transgender persons were extensively discussed in the Rajya Sabha in the context of a private bill by DMK MP Tiruchi Siva who introduced it on April 24, 2015 under the title The Rights of Transgender Persons Bill 2014 and the bill was passed by the Upper House with support of all members. Many activists feel that Tiruchi Siva’s bill is a model which should be accepted fully without any change. The private bill was also discussed in the lok Sabha in February, 2016. It is said that there are about 29 countries having protective laws for transgender persons.
In the context of the proposed legislation by the Government it is important to refer to a famous landmark judgement of Supreme Court’s in the case of legal Service Authority verses Union of India and Others on April 15, 2014 which has been instrumental in many ways in ensuring the rights of transgender persons recognizing them as equal citizens having equal rights guaranteed under the Constitution of India. The Supreme Court ruling says they should be recognized as third gender and also socially and economically backward classes so that they can have reservation for their adequate representation in education and employment. The court also has raised concern in areas of public health and sanitation, socio-economic rights and stigma and public awareness which are very important for transgender persons and directed the Government to address the issues through legislation and programmes. Many of the decisions by the court were questioned by the Government in a petition for more clarification. However, the decisions of the honorable court were historic and paved the way for bringing legislation by the Government.
The Government of Odisha has announced many programmes for the transgender persons. It is estimated by Census 2011 that there were 20,000 transgender persons in the State better known as “Hijira/Kinnar”. But a very detail survey and identification process by the State Government is needed to ascertain the actual number of such persons in the State. It is told that many of them are cut off from their family and are staying in group without proper shelter and minimum amenities. They face difficulties to get a house on rent for accommodation and purchase land for housing. Most of them migrate to cities for shelter and livelihood. It is reported that a majority of the transgender persons are mostly engaged in group begging in train and sex work and other casual work for their livelihood and continue to face serious unemployment problem due to lack of skill and opportunities for a dignified life. There are serious health issues with them in the absence of proper care and medical facility. They have been facing social discrimination, verbal, mental and physical violence in everyday life. Very few of them are educated and engaged in dignified employment. They also routinely face police harassment and very little access to legal aid for protection against abuse. They are excluded from all Government programmes for the poor and oppressed social groups due to lack of identity. In order to systematically intervene in their issues the proposal of the State Government to constitute a State level welfare board similar to that of Tamil Nadu, Bihar, Rajasthan, Chhattisgarh and Maharashtra and pension facility like Tamil Nadu is still pending.
However, the State Government has included all transgender persons under BPl category and covered them under National Food Security Act, one hundred days paid work, pension and loan to start business and included them under housing schemes so that they can have access to Government run employment schemes, food security programme and similar other schemes.
Recently, the Odisha Government has decided to appoint them in jails as warders and let them take part in Independence Day parade to exhibit their identity. It is expected that in line with coming Central legislation, the State will take more proactive steps to ameliorate the condition of the transgender persons.