THE TRANSGENDER PROTECTION OF RIGHTS ACT, 2019
“Transgender community deserves the dignity and respect that most people take for granted”
- ED MURRAY
After a long voyage of struggle and quarrel witnessed by the transgender community in India, the Transgender Protection Act was enacted on 5th December, 2019. The standpoint of this Act was to dispense the community with the rights and protection they are entitled to. The government is under the obligation to work towards their progress and make sure that all the policies framed are applicable to the people belonging to this community.
The Article 14 of the Constitution stating that no one should be denied equality before the law or the equal protection of rights. The right to be educated, getting a decent job without being discriminated on the grounds of sex is the basic right under Article 15 and 16. Article 19 providing freedom of speech and expression should not be limited to just the two genders male and female, but the branches should be extended, to provide the shade to the transgender people as well under the tree of constitution with due respect and recognition given to them.
WHO IS A TRANSGENDER?
When individuals are born, they are assigned a sex. A sex based on their genitals and the two genders that are identified are male and female. The one born with a penis is identified as a male while the one born with a vulva is identified as a female. But apart from this, there are people standing in the gloomy picture which at the birth are identified as males or females as their sex but their sex and gender are not aligned. Gender and sex are used as synonyms but in reality they do differ. Sex is assigned at the birth of the individual based on genitals, chromosomes and hormones whereas gender is the identity or the expression of the individual. Gender identity is defined as the gender that you feel or believe you are. Gender Expression are the external factors of the individual like the behavior, clothes, roles and activities. The people who are labelled as transgender have a non-aligned personality between the Biological Sex and Gender. A person who is a non-transgender will have their biological Sex and Gender aligned i.e., both of them match to be either a male or a female but this is not the case with the transgender. For Example - a person who is biologically male can be identified as a transgender despite being born with the male genitals because their inner sense says to them that they are female, which is their gender identity.
WHY THERE WAS A NEED FOR THE ACT?
The transgender community has been facing all sorts of discrimination from ages and this was the main reason for the introduction for such an Act to uplift their status and give them the respect they deserve.
The transgender people are maltreated by the society and are mentally harassed because of the social stigmas that are attached to the third gender. The transgender people are treated as aliens in their own country just because of the reason they do not match the ‘normal’ criteria that is fixed by the society or that they are different from something that is known to the society (male or female). The transgender people are not even supported by their families and they are disowned by their families. They are forced to live with the others of their community and the conditions where they live are miserable. Acceptance by the society is one of the most important thing that gives a person a sense of satisfaction and mental peace in life but these transgender people are boycotted from the society because of which they go through psychological disorders.
The transgender kids are not sent to schools because the society feels they can only do begging or sex work and nothing else, so investing in their education is futile and wastage of money. There are many schools which do not give admission to the transgender children and even if they are given admissions, they are so extensively bullied that their self- confidence and self -esteem deteriorates and they do not feel like continuing their education. If they complete their education then they are not given jobs because of them being transgender and their dressing style, because of which they land up being unemployed. They have no other option left but to beg or work as a sex worker.
The place where the transgender community lives are shanty, ill-ventilated, no proper water supplies and such an environment can’t let them grow. All of them live in poverty for the majority of their lives in such shabby and unkempt situations that it is very difficult for them to survive. Poverty and these conditions of living push them in the pits of crimes and other down trodden work. They are forced to work as laborers and are not even paid properly for the work they do.
LANDMARK JUDGEMENT BY SUPREME COURT
National Legal Services Authority v. Union of India (AIR 2014 SC 1863) was a very famous case with a landmark judgment delivered by the Supreme Court of India on 15 April, 2014.
This case gave the transgender people the right to be the third gender and that the fundamental rights that are mentioned in the Constitution of India are also applicable to the transgender people. The transgender community being considered a minority in India were given reservations in the educational institutes and jobs. The court directed both the governments, the Centre and the State that the transgender to be recognized as the third gender which would be a big step to end gender biasness in India. This would ensure social and economic upliftment of the transgender and giving the status that they deserve in the society. The Fundamental Rights are available to the third gender in the similar way they are applicable to the other two majority genders i.e., the male and the female. The Court also declared that forcing the transgender people to go under the Sex Reassignment Surgery is illegal, the surgery should be conducted with the free will or consent of the transgender. The Centre and the State government were also directed by the court to provide the third gender people with separate public restrooms and other medical facilities like separate HIV/ Sero-serveillance for them. The Court also focused on the fact that there was a need to aware people regarding the third gender people in order to remove all the social stigmas that are attached to the same, this will ensure that the transgender community lives in peace and harmony with the people of other gender and dwell with the society and become the integral part of it. This would put an end to all the problems that the transgender community has been facing since ages and give them the respect and recognition that they deserve.
WHAT DOES THE ACT CONTAIN?
The Transgender Act defines the transgender “as someone whose gender does not match the one assigned at birth, which includes trans-man or trans-woman, person with intersex variations, genderqueer and person having such social – cultural identities as kinner, hijra, aravani and jogta” under the section 2(k).
The Act prevents them from being discriminated and that they shall be given jobs and also the recruitment, promotion and other things on the basis of their promotion as mentioned in the section 9 of the act. Regarding the education of the transgender people, it is stated in the section 2(d) which talks about “inclusive education”. It is a system of education where only the transgender students will be imparted education so that there is no room for discrimination to take place amongst the students and the children can focus on education and grow in a conducive environment. The students in such schools will find it easy to adapt such environment and their needs can be taken care of.
The Act criminalizes begging by the transgender people. The act also has a section i.e.., section 5 which states that the transgender people need to apply for the certificate of identity which will certify them as transgender to the District Magistrate and in case dealing with children, the parents or the guardians can do the needful. If the certificate is already issued to the transgender and after that they decide to undergo Sex Reassignment Surgery to change gender either as male or female, then an application can be made by the Medical Superintendent or Chief Medical Officer of the medical institute where the person had there surgery done, which can be submitted to the District Magistrate. This provision is provided under the section 7 of the Act. After the submission of such certificate to the District Magistrate, the correctness of the certificate is checked and a gender change certificate is issued. According to Section 7(3), once the revised certificate is submitted then the transgender have the right to change their name (first name) in the birth certificates and all other legal documents which reflect the identity of that person.
According to section 12 of the act, no transgender child after the birth should be separated from their family unless ordered by the court in the good of the child. Every transgender person has the right to live along with the family they are born in, not to be excluded from the household and enjoy the facilities of the house in the similar way if any other gender child would have availed them. In case the family is unable to take care of the transgender child, the court can send that child in the rehabilitation center.
The Act also focuses on the obligation of the educational institutes to provide with inclusive education to the transgender people, vocational training should be provided to the transgender people so that they can become the independent citizens of this country, which is provided in Section 13 and 14 of the Act respectively. Section 15 of the act is inclined more towards the Health Facilities that should be provided to the transgender people like counselling before and after the Sex Reassignment Surgery, to have access to all the facilities of the Health Institute etc.
Sections 16 and 17 are fully devoted to the formation of the National Council of Transgender and the functions that the organization will be performing respectively. The people that are appointed under this organization are mentioned under the prior section, which also includes five representatives from the transgender community from the states and union territories, one from each - North, South, East, West and North-East region and five experts from NGOs in order to ensure that the policies framed truly achieve its destination. The functions that are assigned to the organization to be performed are:-
Performance of functions given by the Central Government
Advise the Central Government on the formulation of policies and programs.
To evaluate and monitor the policies and programs formulated, whether they are helping the community or not.
To coordinate with all other departments and NGOs that are working for the transgender community.
To redress the grievances of the transgender people.
The act also has the offences and penalties prescribed under section 18, according to which if the transgender people are forced to work as laborers, forced to leave their homes, denied their rights or any harm or injury is done to them including the physical, mental, sexual, verbal, emotional and economic abuse then the person doing so shall be entitled to imprisonment not less than 6 months which can extend to 2 years along with fine being paid.
“Injustice anywhere is a threat to justice everywhere”
In the light of the above aesthetic words quoted by Martin Luther, the justice should be dispensed to everyone without any discrimination. Even transgender people are humans and should be treated equally because we as humans are obliged towards the human kind. Humanity is above everything and humans without humanity puts a question on our existence.
The Act is beneficial to the Transgender people and the government has even welcomed the suggestions that the people of the community or the people representing them feels should be there. This will lead us to a productive society, focusing on development and good of all the citizens which is the utmost priority.
Author: Saumya Chawla
Sources: livescience.com, hrw.org, ncbi.nlm.nih.gov, wikipedia.org, thehindu.com & economictimes.indiatimes.com
Pictures: scconline.com, vajiramias.com & avert.org