Transgender Rights in India : Laws, Problems and Solutions

(by Angshuman Choudhury)

INTRODUCTION:

Often in our everyday lives, we see people who are what society calls 'different.' They act
differently from what society considers normal. When we consider these differences in sexual
orientations and body features, we find that these people belong to the LGBTQ+ community
(Lesbian, Gay, Bisexual, Transgender, Queer +). Historically, this community have been
discriminated and marginalized which have led to their severe oppression in public, especially in
India. They have to identify themselves as something which they do not consider they are and
have to keep their relations private. Moreover, there have been instances where the
majoritarians publically harass and even indulge in rape and murder, just because they aren't
what they think is normal. Therefore, I shall try to enlist the laws set in place to help empower a
section of the LGBTQ+ community in India which are the transgenders, the loopholes and the
problems in the set laws, and the ways in which the laws could be amended so that transgender
people can live without being discriminated and marginalized in society while being empowered
to contribute in the development of the State.

LAWS SET TO EMPOWER TRANSGENDERS:

According to the United Nations, Transgender people are those who identify themselves as a
gender which was different from the one they were assigned to at birth. As per the Indian
system, transgenders fall under the category of hijras, kinnar, aravani and jogta. Through the
Transgender Persons (Protection of Rights) Bill, 2019, the Cabinet of India has tried to empower
this marginalised community by defining them as different from males and females and giving
them a set of rights which they are entitled to. These rights include the: 1) Right to Residence,
which gives such people the right to reside and live in his household; if immediate family is
unable to take care of them, they will be moved to a rehabilitation centre on the order of a
competent court. This is to prevent families from abandoning their transgender relatives and not
allowing them to live in their household.

2) Right to Employment and Education, which ensures that no government or private entity can
discriminate against any transgender in the matter of employment, including recruitment, and
promotion. Every establishment is required to designate a person to be a complaint officer to
deal with complaints concerning the Act. In the educational front, educational institutions
funded or recognised by the relevant central or state government shall provide inclusive
education, sports and recreational facilities for transgenders, without discrimination. This allows
them to not only be given education and have a livelihood but also helps them to contribute to
the development of the country as a whole.

3) Right to Health care, which ensures that the government must take steps to provide health
facilities to these communities including separate HIV testing centres, and sex reassignment
surgeries. The government shall review the medical curriculum to address health issues of
transgender persons, and provide comprehensive medical insurance schemes for them.

Along with these rights, transgenders have been given rights against discrimination and welfare
measures from the govenment. The government will create a National Council for Transgender
persons (NCT) which will consist of: (i) Union Minister for Social Justice (Chairperson); (ii)
Minister of State for Social Justice (Vice-Chairperson); (iii) Secretary of the Ministry of Social
Justice; (iv) one representative from ministries including Health, Home Affairs, and Human
Resources Development. Other members include representatives of the NITI Aayog and the
National Human Rights Commission. State governments will also be represented. The Council
will also consist of five members from the transgender community and five experts from non-
governmental organisations.

The government has also agreed on a set of offences against transgender communities which
include (i) forced or bonded labour (excluding compulsory government service for public
purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv)
physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary
between six months and two years, and a fine.

PROBLEMS WITH THESE LAWS:

Even though these laws have been passed by the Lok Sabha, there are quite apparent flaws in
this Bill which has been pointed out by the transgender community. Through the years, it has
been evident that the general public is insensitive of the major problems faced by these people
in everyday life and this can be easily understood when one tries to analyse the contents of the
Bill in detail. These flaws are listed below:

1) The Bill lacks the responsibilities of the Executives and rather focuses on the job of the
Judiciary and Legislation. This causes the laws to just be a string of words with no proper intent
to stop the marginalization and discrimination of the transgender people.

2) The Bill has mentioned the term of intersex persons but it has been confused and included
with the term of transgenders. This can cause major problems especially in terms of health as
transgender and intersex people require very different medical attention, and cannot be just
done by any doctor.

3) Even though the NCT is to made completely autonomous, every member outside the Central
Government is to be chosen by the Central Government, which severely compromises its
autonomy.

4) There is no mention of increased accessibility of medical facilities for such people which still
remains a major problem for these people, even though the community has been pleading for
since independence.
5) The set of offences are less stringent and strict than that of women which makes them
appear as less than that of the general public.

A FEW SOLUTIONS:

The following are a few solutions that I think may help the transgender community:

1) The Bill must mandate the inclusion of courses in school regarding not only transgenders but
the LGBTQ+ community as a whole to sensitize their situation to the public and help them
include into the society.

2) The Bill must focus on the issue of intersex people differently and not include them in the
transgender people category.

3) If the NCT is to be formed, then it should maintain complete autonomy from the legislation
or executives at all times. The members must be recognised and established people in the
transgender community along with other medical personnel like psychiatrists.

4) There must be the inclusion of measures which keep a check on the welfare and living
conditions of these people. The process of maintaining a complaint officer must be made
concrete rather than left vague and this process must be applied in every police station and not
only to workplaces so that the transgender people can approach them at all times.

5) The punishments for committing the offences mentioned in the Act must be made equally
strict, if not stricter than that of the general public.

CONCLUSION:

It is evident that people have not only mistreated but have also harassed and committed grave
offences on the transgender community, and while the Transgender People ( Protection of
Rights) Bill is a step in the forward direction, it is still very flawed in its base and still requires a lot
of amendments. Some of the few solutions I have mentioned here may help the community a bit
but it is only with the combined support of the public can they be included into the society
wholly, and let us hope that they can be included with all of us shortly.