Saturday, July 31, 2021

Rights of transgender

Passing of the Bill in Lok Sabha to secure the rights of transgender persons appears to be a progressive step towards extending constitutional protection to the highly marginalized community of the country. In fact, this is a step in the right direction so far as their demand for full protection of their rights is concerned. The marginalized community has been seeking constitutional protection after they had won the case in the highest court of the country. The Transgender Persons (Protection of Rights) Bill, 2018, as passed, is an improved version of the legislation introduced two years ago by the BJP-government. It is noteworthy that the previous draft was perceived as falling short of the expectations of stakeholders and not adequately rights-based, as per the directions of the Supreme Court in its landmark decision on transgender rights exactly four years back. The experts and the stakeholders, as well as the Standing Committee of Parliament on Social Justice and Empowerment, had criticised the original definition of ‘transgender persons’ for violating the right to self-determined identity. The revised definition in the Bill omits the reference to a ‘neither male nor female’ formulation, and covers any person whose gender does not match the gender assigned at birth, as well as transmen, transwomen, those with intersex variations, the gender-queer, and those, who designate themselves based on socio-cultural identities such as hijra, aravani, kinner and jogta. Now under the revised rules, the requirement that a district medical screening committee must recommend the issue of a certificate to each transgender may be considered necessary to prevent misuse. But such a process goes against the principle of self-identification of the transgender persons, a key right the Supreme Court had protected in its decision. The central government has omitted the need to go through the same medical screening committee to get a revised certificate after a transgender has sex reassignment surgery, but the medical certification requirement remains there. The transgender persons may question the need for such external monitoring that violates their right to privacy even in the event of a medical correction. In an orthodox society with regressive thought process like India, there are many social concerns that have been responsible for discrimination and isolation of transgender persons. These concerns appear to be legitimate and genuine in the revised Bill that will go to the Rajya Sabha for clearance to become a law for enforcement in the country. In this Bill, there is a reference to the bar on forcible separation of transgender persons from their families, except through the court orders. It has revised to cover also the transgender children. Previously, it covered adults as well but the Parliamentary Committee had noted that many transgender persons faced harassment and abuse and sometimes forced to flee their homes due to apathy of the families. This has been noted with concern particularly in rural and far flung areas where the transgender persons were considered to be cursed by the divine powers by their own families. One more concern is that the Bill criminalises begging by making it an offence for someone to compel or entice a transgender person into seeking alms. When begging itself is no more seen as an offence in different states of the country, it may be harmful to the community if such a means of livelihood in the absence of employment is criminalised. Unfortunately, the Bill does not give effect to the far-reaching directive of the Supreme Court to grant Backward Class reservation to the transgender community. The Standing Committee’s concerns about recognising civil rights in marriage, divorce and adoption among them have been addressed to a large extent. There is more good intention behind the welfare provisions, but social legislation is much more than that is required on the ground. The centre and the state government need to follow up seriously the implementation of the laws when they are passed and frame adequate guideline to achieve the desired objective of the law considering that the transgender persons are also a part of the society with a humanistic approach.