Transgender Persons (Protection of Rights) Act, 2019

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

The Transgender Persons (Protection of Rights) Act, 2019
Emblem of India
Parliament of India
Enacted byParliament of India
Signed5 December 2019
Legislative history
Bill citationBill No. 169 of 2019 [1]
Bill published on19 July 2019
Introduced byMinister for Social Justice and Empowerment
First reading5 August 2019
Committee report43rd Report by Standing Committee on Social Justice and Empowerment, July 2017
Related legislation
The Transgender Persons (Protection of Rights) Bill, 2018
The Transgender Persons (Protection of Rights) Bill, 2016
The Rights of Transgender Persons Bill, 2014
Status: In force

The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India with the objective to provide for protection of rights of transgender persons, their welfare, and other related matters. The Act was introduced in the Lok Sabha on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot, in light of the lapse of the Transgender Persons (Protection of Rights) Bill, 2018. The 2018 bill, which was preceded by a 2016 version, were both met with protests and criticism by trans groups, lawyers, and activists in India. The 2016 bill was sent to a Standing Committee which submitted its report in July 2017. Following which, the Lok Sabha tabled and passed a newer version of the bill in December 2018. However, it did not incorporate many of the committee's recommendations. Members of the opposition in Rajya Sabha criticised the bill and assured transgender persons of not voting in favour of it, although it was passed by the Rajya Sabha on 25 November 2019. On 5 December 2019 it was signed into law by the President of India.

Following protests by the queer community against the 2016 and 2018 bills, the bill tabled in 2019 did away with few of the severely criticised provisions of the 2018 bill, such as criminalisation of begging and the establishment of a District Screening Committee to process applications for issuance of transgender person certificates. However, it failed to incorporate yet other principles in line with the Supreme Court judgment in National Legal Services Authority v. Union of India (NALSA v. UOI) in 2014, such as the right of transgender persons to self-perceived gender identity without undergoing sex reassignment surgery, and mandatory reservations in jobs and educational institutions. Criticism was also made of the lesser punishment for crimes against transgender persons compared with punishment for crimes against cisgender persons. The 2019 Act was passed by the Lok Sabha on 5 August 2019 by a voice vote, amidst chaos in the house over the revocation of the special status of Jammu and Kashmir on the same day. On 25 November 2019, it was passed by the Rajya Sabha. Eventually, it was signed into law by the President of India on 5 December 2019.

In January 2014, while judicial pronouncement in the NALSA petition was pending, the ministry had published an Expert Committee Report on issues relating to transgender persons, after consultations with transgender persons. Tiruchi Siva, of the Dravida Munnetra Kazhagam party, had introduced the Rights of Transgender Persons Bill in 2014, in the Rajya Sabha, which was passed by the house in 2015. The 2014 bill contains provisions progressive to those in the bills introduced in between 2016 and 2019, but has been pending in the Lok Sabha since 2015. Prior to the 2019 general elections, parties such as the Indian National Congress and Communist Party of India (Marxist) promised in their respective electoral manifestoes to, respectively, withdraw the 2018 bill — while introducing a new one consulting members of the queer community — and pass the 2014 bill.

History and background[edit]

Hijras in eastern Bengal, circa 1860

In 2014, the Supreme Court of India delivered its judgment in National Legal Services Authority v. Union of India (also known as, NALSA v. UOI), in which it recognised the rights of the transgender persons in India and laid down a series of measures for securing transgender persons' rights by mandating prohibition of discrimination, recommending the creation of welfare policies and reservations for transgender persons in educational institutions and jobs.[1] The judgment upheld the right of a transgender person to self-perceived gender identity, guaranteed by the Constitution of India, in the absence of sex reassignment surgery.[2] The 2014 judicial mandate stands backed by the judgments of the Supreme Court in Justice K. S. Puttaswamy (Retd.) and anr. v. Union of India and ors. (2017) and Navtej Singh Johar v. Union of India (2018).[3] The judgment in NALSA v. UOI also noted the presence of transgender persons in India throughout its history, and made reference to the hijra, kinnar, and jogta communities, spread across the country and beyond in the Indian subcontinent.[4][5]

While the decision in the NALSA petition was still pending, an Expert Committee report on issues relating to transgender persons was published in January 2014, after consultations by the Ministry of Social Justice and Empowerment with transgender persons in August 2013.[6][7] In this background, Tiruchi Siva of the Dravida Munnetra Kazhagam party introduced a private member's bill in the Rajya Sabha, namely the Rights of Transgender Persons Bill (No. XLIXC-C), 2014.[8]

The government had initially asked him to withdraw the bill citing various anomalies; however, the opposition had a majority in the house and the bill was unanimously passed by the Rajya Sabha on 24 April 2015.[8] The bill was welcomed by queer rights activists in India.[9] However, some transgender persons noted their absence in the entire process and called for their recommendations being sought for.[10][11] Following the passing of the Rights of Transgender Persons Bill, 2014 in 2015, it stood to be the first private member's bill to be passed by the Rajya Sabha in the preceding thirty-six years[12] and by the Parliament in the preceding forty-five years.[13] Until 2015, only sixteen private member's bills had stood passed since 1947.[14]

The 2014 bill underwent significant changes when the government drafted its own version of the bill, with omissions of provisions in the 2014 bill.[15] After recommendations were received from transgender persons, the bill was sent to the Law Ministry.[15] It came to be known as the Rights of Transgender Persons Bill, 2015.[16] Later, on 26 February 2016, the bill was introduced in the Lok Sabha for debate by Baijayant Panda of the Biju Janata Dal party.[17] He argued that the bill would help extend constitutional rights and end the discrimination against transgender people, allowing them to live a life of dignity.[17] The bill was discussed in the Lok Sabha on 29 April 2016.[18] Siva stated that he will not be withdrawing the 2014 bill.[19]

While the 2014 bill passed by the Rajya Sabha continues to be pending,[20] the government tabled the Transgender Persons (Protection of Rights) Bill (No. 210), 2016, on 2 August 2016, following the constitution of the Lok Sabha, post the 2014 general elections.[21] The 2016 bill had various provisions regressive to the provisions in the 2014 bill.[22][23] The bill was met with criticism and protests from Indian transgender persons and was referred to the Standing Committee, which submitted its report in July 2018.[23] The Lok Sabha tabled and passed a newer version of the bill with twenty-seven amendments on 17 December 2018.[24][25] The bill was once again met with severe criticism and protests pan-India, as it overlooked the recommendations made by the Standing Committee and suggestions offered by transgender persons.[26][27] However, the 2018 bill stood lapsed.[28] Following the constitution of the Lok Sabha, post the 2019 general elections, the bill was reintroduced on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot[29] The bill was passed by a voice vote in the Lok Sabha on 5 August 2019, amidst chaos following the revocation of Jammu and Kashmir's special status by the Parliament.[30][31]

Statutory provisions[edit]

The 2018 bill had criminalised begging — which transgender persons in India, such as the hijras and jogtas, engage in as a ritual-custom while some rely on it for livelihood — apart from mandating applications made to the District Magistrate to be screened through a District Screening Committee for issuance of transgender person certificates.[32][33] The screening committee was to be composed of five people including a chief medical officer, district social welfare officer, psychologist/psychiatrist, and a representative of the transgender persons[34][35] The 2018 bill had also not provided for mandatory reservations for transgender persons and mandated lower punishment for crimes against transgender persons, as compared to punishment for crimes against cisgender persons under the Indian Penal Code.[23][25] It also ensured a family-life for transgender children, by prohibiting their separation from their family, without taking into account harassment and discrimination they may face within their family as a result of which they may choose to be separated and reside with transgender persons.[36][37] A transgender child, as per the provisions, could be separated from their family only by a court order.[26] The 2018 bill provided for undergoing sex reassignment surgery as a mandatory pre-requirement to be identified as male or female.[38] The 2019 act did away only with few of the criticised provisions of the 2018 bill, such as the District Screening Committee and the criminalisation of begging.[39]

The proposed statutory provisions of the 2019 act prohibit discrimination against transgender persons.[39] Similar to the 2018 bill, the 2019 act includes intersex persons, hijras, jogtas, and kinnars within its definition of transgender persons,[38][40] though it does not define terms such as trans-man, trans-woman, and genderqueer.[38][41] Both the bills describe a transgender person as someone whose gender does not match with the gender assigned to them at birth.[38][42]

Under the proposed provisions of the 2019 act, a transgender person can apply to the District Magistrate for a transgender person certificate which will give them the right to change the name on their birth certificate and have all documents updated accordingly.[43] However, similar to the 2018 bill provisions, a transgender person can be identified as male or female only after applying for a revised certificate to the District Magistrate, post sex reassignment surgery.[44]

The 2019 act also protects transgender children and provides for states and institutions to come up with adequate policies for the welfare of transgender persons.[45][37] Similar to the provisions of the 2018 bill, under the provisions of the 2019 act a transgender child can be separated from their family by a court order.[26] However, unlike the Rights of Transgender Persons Bill, 2014 neither the 2018 nor the 2019 act provide for mandatory reservations for transgender persons in educational institutions and jobs.[29] The 2014 bill had provided for two per-cent reservations in educational institutions and public employment.[46] Similar to the 2018 bill, the 2019 act provides for punishment for crimes against transgender persons, which stands as an imprisonment for a term not less than six months but which may extend to two years and a fine.[23][41] Both bills also provide for the constitution of a National Council for Transgender Persons.[30][47]

Criticism and reactions[edit]

Protests against the 2018 bill in Mumbai, in December 2018

The 2018 bill passed by the Lok Sabha was widely criticised by transgender persons, activists, students, and lawyers.[48] Transgender persons protested in various cities in India calling the provisions regressive and in violation of the Supreme Court judgment in 2014.[25][23] The criminalisation of begging under the 2018 bill was to affect transgender persons in India, such as hijras and jogtas who engage in begging as a ritual-custom while some rely on it for livelihood.[32][33] The provision of the District Screening Committee had also left gaps for incompetence and prejudice and was supposedly done to filter out imposters from seeking benefits of government welfare schemes.[36][49] The definition of transgender persons under the 2018 bill, retained by the 2019 act, was also reported to be at variance with international expert understanding of the term.[38]

The bills have been met with protests by transgender persons.[50] Their passing by the Lok Sabha has been referred to some transgender persons as "black day" and "gender justice murder day".[22][51] Yet others have described the 2018 bill as "draconian and discriminatory".[52] Protestors alleged the 2018 bill to be institutionalising violence and claimed neglect of recommendations made by the Standing Committee and transgender persons.[53]

After the 2018 bill was passed by the Lok Sabha in December 2018, members in the Opposition from the Rajya Sabha stated they will not let the bill pass in its present form in Rajya Sabha.[54] Transgender persons called for applications to the District Magistrate for issuance of transgender certificates, lesser punishment for crimes against transgender persons, and absence of provisions on mandatory reservations for transgender persons regressive to the judicial mandate of the Supreme Court in 2014 in NALSA v. UOI, thereby violating right to equality and other fundamental rights of transgender persons.[53][55] The bill has been criticised by Human Rights Watch.[56]

In the run-up to the 2019 general elections to the Lok Sabha, Indian National Congress promised in its electoral manifesto to withdraw the 2018 bill and introduce a new one, in consultation with members of the queer community.[57][58] The Communist Party of India (Marxist) supported the passing of the 2014 bill in its electoral manifesto.[57]

See also[edit]

References[edit]

  1. ^ Venkatesan, J. (15 April 2014). "Supreme Court recognises transgenders as third gender". New Delhi. The Hindu. Archived from the original on 14 June 2018. Retrieved 17 August 2019.
  2. ^ Kothari, Jayna (12 April 2018). "A promise falls short". The Hindu. Retrieved 17 August 2019.
  3. ^ Kothari, Jayna (15 September 2018). "The Supreme Court trans-formed". The Hindu. Retrieved 17 August 2019.
  4. ^ "National Legal Services Authority versus Union of India and others". Supreme Court Cases. 5: 438. 2014.
  5. ^ "India court recognises transgender people as third gender". BBC. 15 April 2014. Archived from the original on 11 August 2019. Retrieved 17 August 2019.
  6. ^ "Rights & wrongs — on Transgender Persons Bill". The Hindu. 9 December 2017. Archived from the original on 25 June 2018. Retrieved 17 August 2019.
  7. ^ Dhar, Aarti (24 March 2014). "Expert panel wants transgender declared third gender". New Delhi. The Hindu. Archived from the original on 24 December 2016. Retrieved 17 August 2019.
  8. ^ a b Gandhi and, Ramachandran (24 April 2015). "RS passes Bill on transgender rights". New Delhi. The Hindu. Archived from the original on 10 May 2018. Retrieved 17 August 2019.
  9. ^ Srinivasan, Meera (25 April 2015). ""Turning point in transgender rights"". Chennai. The Hindu. Retrieved 17 August 2019.
  10. ^ "Activists oppose Bill on transgender rights". Bengaluru. The Hindu. 16 December 2015. Retrieved 17 August 2019.
  11. ^ Sinha, Chinki (16 August 2019). ""We can't erase our hijra culture"". New Delhi. India Today. Archived from the original on 16 August 2019. Retrieved 17 August 2019.
  12. ^ "Rajya Sabha passes first private member's bill in 36 years, on transgenders' rights". New Delhi. Times of India. 25 April 2015. Archived from the original on 31 August 2019. Retrieved 17 August 2019.
  13. ^ "Rajya Sabha passes transgenders rights bill, first private member proposal in 46 years". New Delhi. India Today. 24 April 2015. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  14. ^ "Just 14 private member's bill passed by Parliament till date; the last was in 1970". New Delhi. Times of India. 25 April 2015. Archived from the original on 7 September 2019. Retrieved 17 August 2019.
  15. ^ a b Abraham, Rohan (30 November 2017). "All you need to know about the Transgender Persons Bill, 2016". The Hindu. Archived from the original on 7 May 2018. Retrieved 17 August 2019.
  16. ^ Ghildiyal, Subodh (30 December 2015). "Bill ensures family life for transgender children". Times of India. Archived from the original on 1 September 2019. Retrieved 19 August 2019.
  17. ^ a b PTI (27 February 2016). "Lok Sabha Takes Up Bill To End Transgender Discrimination". New Delhi. NDTV. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  18. ^ "Lok Sabha discusses transgender rights". The Hindu. 29 April 2016. Retrieved 17 August 2019.
  19. ^ Lalwani, Vijayta (24 December 2018). "How Parliament came to have two Bills on transgender persons' rights (and why neither may pass)". Scroll. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  20. ^ "Rajya Sabha member wants to modify National Anthem". The Hindu. 21 June 2019. Retrieved 17 August 2019.
  21. ^ "Explained: Why the Citizenship Amendment Bill is dead, for now". New Delhi. Indian Express. 13 February 2019. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  22. ^ a b Lalwani, Vijayta (19 December 2018). "'This is a black day': Activists criticise Transgender Persons Bill passed in Lok Sabha". Scroll. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  23. ^ a b c d e Jyoti, and Ratnam (19 December 2018). "Transgender bill criminalises community, say activists; seek its overhaul". New Delhi. Hindustan Times. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  24. ^ "Lok Sabha passes Transgender bill". New Delhi. PRI. 17 December 2018. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  25. ^ a b c Kondaiah, Karthik Bittu (15 June 2019). "The Transgender Persons Bill misses key demands of the community". Hindustan Times. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  26. ^ a b c Karangutkar, Suyash (28 December 2018). "Colleges join hands to protest against Transgender Bill 2018". Mumbai. The Hindu. Retrieved 17 August 2019.
  27. ^ "Rights, revised: on the Transgender Persons Bill, 2018". The Hindu. 20 December 2018. Retrieved 17 August 2019.
  28. ^ "Transgender rights Bill to be reintroduced". New Delhi. The Hindu. 5 June 2019. Retrieved 17 August 2019.
  29. ^ a b Sirohi, Nishant (24 July 2019). "Transgender Bill introduced in the Lok Sabha". The Leaflet. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  30. ^ a b PTI (5 August 2019). "Transgender Persons bill passed in Lok Sabha". New Delhi. The Hindu. Retrieved 17 August 2019.
  31. ^ "Congress opposition parties protest in Lok Sabha seek presence of Prime Minister on Kashmir decision". New Delhi. Times of India. 5 August 2019. Archived from the original on 8 August 2019. Retrieved 17 August 2019.
  32. ^ a b Hasan, Ilma (17 December 2017). "LGBTQ community protests against Transgender Persons Bill". New Delhi. India Today. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  33. ^ a b Ravi, Sidharth (9 January 2019). "Trans activists up the ante, to challenge Bill". New Delhi. The Hindu. Retrieved 17 August 2019.
  34. ^ PRS India. "The Transgender Persons (Protection of Rights) Bill, 2016". PRS Legislative Research. Archived from the original on 19 August 2019. Retrieved 19 August 2019.
  35. ^ Banerjie, Ajita (21 December 2018). "Against the mandate for inclusion: the Transgender Persons Bill 2018". The Hindu. Retrieved 19 August 2019.
  36. ^ a b "Transgender Bill: remove drawbacks". Deccan Herald. 24 December 2018. Archived from the original on 19 August 2019. Retrieved 19 August 2019.
  37. ^ a b Sharma, Nidhi (20 July 2019). "Transgender Rights Bill introduced in Lok Sabha, may be taken up next week". Economic Times. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  38. ^ a b c d e Venkatesan, V.; Kaur, Tanveer (10 January 2019). "Stiff opposition to transgender persons Bill". Frontline. Retrieved 20 September 2019.
  39. ^ a b Banerji, Annie (19 July 2019). "India introduces new trans rights bill in parliament after backlash". New Delhi. Reuters. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  40. ^ Aggarwal, Aarushi (16 August 2019). "Govt. making rules for us without us: transgenders". New Delhi. The Hindu. Archived from the original on 15 August 2019. Retrieved 17 August 2019.
  41. ^ a b Quraishi, S. Y. (26 July 2019). "Bringing transgenders into mainstream". The Tribune. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  42. ^ "The Transgender Persons (Protection of Rights) Bill (No. 169), 2019" (PDF). PRS Legislative Research. Retrieved 20 September 2019.
  43. ^ Gandhi, and Ghia (5 August 2019). "Transgender Rights Bill: A Stunted Understanding of Gender and Equality". The Wire. Archived from the original on 2 August 2019. Retrieved 17 August 2019.
  44. ^ Karpagam, Sylvia (30 December 2018). "Why Transgender Persons Bill 2018 is a healthcare nightmare for the community". The News Minute. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  45. ^ Kumar, Prakash (5 August 2019). "Bill to protect rights of transgenders passed in LS". New Delhi. Deccan Herald. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  46. ^ Kothari, Jayna (29 December 2018). "A law that defeats its purpose". The Hindu. Retrieved 17 August 2019.
  47. ^ ANI (5 August 2019). "Lok Sabha passes bill to prohibit discrimination against transgenders". DNA. Archived from the original on 6 August 2019. Retrieved 17 August 2019.
  48. ^ Bhatia, Gautam (5 January 2019). "The Rajya Sabha must amend the Transgender Persons Bill". Hindustan Times. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  49. ^ "Transgender rights should not depend on a screening". Hindustan Times. 19 February 2018. Archived from the original on 19 August 2019. Retrieved 19 August 2019.
  50. ^ "Over 1,000 transgenders from Pondicherry, Tamil Nadu protest against new law". New Indian Express. 22 December 2018. Archived from the original on 19 August 2019. Retrieved 19 August 2019.
  51. ^ Gowda, Varsha (8 August 2019). "Transgender Persons Bill evokes mixed responses". Bengaluru. The New Indian Express. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  52. ^ Karangutkar, Suyash (27 December 2018). "Bill will deprive us of right to live with dignity, say transgender activists". The Hindu. Retrieved 20 September 2019.
  53. ^ a b "'Withdraw Transgenders Bill, table it again with changes'". The Hindu. 1 January 2019. Retrieved 20 September 2019.
  54. ^ "Transgender Persons Bill: Opposition MPs in Rajya Sabha promise not to pass draft law". Scroll. 28 December 2018. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  55. ^ Dharmadhikari, Sanyukta (5 August 2019). "Trans Bill 2019 passed in Lok Sabha: Why the trans community in India is rejecting it". The News Minute. Archived from the original on 17 August 2019. Retrieved 17 August 2019.
  56. ^ "India: Transgender Bill Raises Rights Concerns". New York. Human Rights Watch. 23 July 2019. Archived from the original on 30 July 2019. Retrieved 17 August 2019.
  57. ^ a b Rosario, Kennith (8 April 2019). "The invisible 'third gender' voters". Mumbai. The Hindu. Retrieved 17 August 2019.
  58. ^ SNS Web (2 April 2019). "Congress manifesto promises 34 lakh jobs, farmer welfare, says will scrap NITI Aayog". New Delhi. The Statesman. Archived from the original on 17 August 2019. Retrieved 17 August 2019.

External links[edit]