~ By: Devi Dayal Gautam
Uptil 2011, Indian Census did not recognize third gender i.e. transgender while collecting census data for years. But in 2011, data of transgender persons were collected with details related to their employment, literacy and caste. In India, total population of transgender is around 4.88 Lakh as per 2011 census which have a variety of identities which includes the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. Though the Article 15 of the Constitution of India ensures & guarantees the rights & entitlements of transgender persons by prohibiting discrimination on the basis of sex, yet they have been and still are one of the marginalised communities in India both in symbolic & material sense. Human rights violations against transgender persons stems from the negative societal attitude towards them which sometimes extends to the incidents of ‘phobic-violence’. In addition to it, transgender persons are also excluded from employment and livelihood opportunities and have limited access to the rights of citizenship, education and health services. However, the present times have been witnessing an assertion on the basis of their collective identity so as to demand their fair share from the democratic and just Indian state.
It is in this context that The Transgender Persons (Protection of Rights) Bill, 2016 is a timely and much needed empowering initiative at the policy level taken by the Ministry of Social Justice & Empowerment, Government of India. As far as the structure of the Bill is concerned, through its constitutive 11 Chapters, it not only arrives at a conclusive understanding of who is a transgender in India but also aims to bring them into the mainstream of the society. Furthermore, the Bill seeks to establish National Council for Transgender Persons under Section 17 so as to further their cause. Thus, the Bill appears to be an anti-thesis to the social ‘phobic attitude’ and thus ensures to ‘transform & sensitise’ the society towards the transgender persons. Significantly, as spelled out in the Chapter 3, a certificate of identity as transgender person is to be issued to the person provided certain conditions are met. This is definitely a step towards ‘complete & full’ citizenship identity which in a way facilitates accessibility & availability of the welfare programmes to the transgender persons.
In recent times, the Government of India has taken various initiatives for the inclusion of the excluded segments of the society, accordingly the Bill in its Chapter IV outlines concrete welfare schemes and programmes for the inclusion of transgender persons which are in line with the constitutional spirit of social justice and dignity. Chapter V lists the obligations on the part of the establishment so as to provide a non-discriminatory environment to live & work in a dignified and just manner. Chapter VI is related to the education, social security and health of transgender persons and spells out concrete measures to be taken.
For instance, all the educational institutes are to be aware of the needs of the transgender community and to partake them education without any prejudice or biasness. In addition to it, ample employment opportunities should be made available to them through skill enhancement training & programmes. Most importantly, the health aspect of the transgender community needs special mention. As most of them either are poor or are reduced to be so because of the social stigma and apprehensive attitude by the society, their medico-health issues are left unaddressed and thus makes them more vulnerable. It is to mitigate the health issues that the Bill entails for providing for medical care facility including sex reassignment surgery and hormonal therapy.
It needs to be underlined that such provisions are obligatory in nature rather that optional or discretionary. Along with it, the health service delivery mechanism including the doctors & nurses will be sensitised towards the needs of the transgender persons. It is so as to improve & streamline the health facilities and making them more inclusive. Touching upon the ‘private’ sphere of family & kinship, the inclusive approach of the Bill clearly states that the transgender will not be deprived of their right of residency as well as property.
One of the key elements of the Bill is the establishment of the National Council for Transgender (NCT) which will have members from across the country having diverse academic & professional backgrounds. The NCT will oversee the seamless in-sync of functions performed by the different Ministries & Departments at the Central level in the matters related to transgender community. In line with the Public-Private Partnership (PPP) Model involving the stakeholders, the Bill seeks to have the non-governmental organisations also on board.
To minimise the incidents of discrimination and atrocities against the transgender persons and to send a strong signal to such erring persons, the Bill in its Chapter 8 has entailed provisions of penalty for the offences committed against the transgender persons. Apart from deliberating upon the nature of such offences, it states that the punishment for the same ranges from six months but which may extend to two years and with fine.
Thus, seen in totality and in a holistic manner, The Transgender Persons (Protection of Rights) Bill, 2016 is against the societal violence (both in symbolic and physical forms) inflicted on transgender persons. The importance of such a Bill increases manifold if one looks at the nature of offences and violence committed against the transgender persons in general and India in particular. We come to an understanding that such acts of social violence emerge from the singular and all pervasive notion of a person being either male or female. The ‘in-between’ sexual identity appears not only to be problematic but also undesirable to the society at large. Related with this ‘fluid’ sexual identity is the undignified attitude towards the transgender persons as they are excluded from the family, marriage & kinship; the social institutions held sacrosanct and seen as pillars of the society. As a result, the transgender persons are seen as ‘incomplete’ self. Needless to say, The Transgender Persons (Protection of Rights) Bill, 2016 not only address these issues in a fair manner but also sensitises the society at large to positively change their attitude towards transgender persons.
Devi Dayal Gautam is a Research Scholar and Assistant Private Secretary to Minister for Social Justice and Empowerment, Government of India. Views expressed by author are strictly personal