Lucknow, UP, India, 226028

TRANSGENDER PERSON (PROTECTION OF RIGHTS) RULE (2020)

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TRANSGENDER PERSON (PROTECTION OF RIGHTS) RULE (2020) –BETTER THAN EARLIER, YET NOTHING TO CELEBRATE

The Transgender Person (Protection of Right) Bill, 2016 was approved by the Cabinet headed by the Prime Minister. Through this Bill, the government planned to administer social justice and equality for the transgender community. The Bill was passed in 2019. The Transgender Community is protesting since then. There were many drawbacks in the Act, some of which violate the historical NALSA Judgment.

DRAWBACKS

DEFINITION

The Act defines a Transgender person as one whose gender does not match the gender assigned at birth [1]. It also includes people with intersex variations, gender-queers, and persons with socio-cultural identities, such as Kinnar and Hijras. This is the biggest drawback that the Hijra community, persons with intersex variations are included in the definition of the Transgender. Whilst the transgender community is an entirely different concept and inclusion of other communities in the definition will be akin to treating everyone in the same window. The term ‘Sexual Orientation’ and ‘Gender identity’ are different. If a man is attracted to another man, or a woman is attracted to another woman, or a man and woman are attracted to both men and women, then they are considered as Gay, Lesbian, and Bisexual, respectively. They are either men or women. Yes, they can be Cis as well as trans but asking them to identify their gender, violates the Right to Personal Liberty. They are Queer community, which can be men or women, and considering them under the definition of transgender, become the main reason for protest among the community. The term ‘Transgender’ must not be treated used as an umbrella term.

“There is no way to be a transgender and no way for transgender people to look or feel about themselves”. [2]

SCREENING TEST BY SCREENING COMMITTEE

The biggest opposition is requisite for a screening committee to certify a person’s trans status. The Transgender community has protested the Act ever since it was a Bill in 2016. The 2016 Bill proposed a District screening Committee that would screen trans bodies (degree of invasiveness not specified) before allowing them to self-identify. The committee was dismissed in the later versions of the bill, meanwhile, the spirit of screening via District Magistrate remains till the day, it is just less invasive. Only after Sex Reassignment Surgery, regardless would the person be entitled to the markers ‘male’ or ‘female’. Completely disregarding that the surgery is expensive and inaccessible to most of the community. Further, surgery doesn’t determine gender. If a trans person feels he or she is a female or male, they will feel that way only, Surgery shall be a personal choice. Over the past many years, the transgender community had protested fervently against all the discrimination they have faced.  No one gets to denude and degrade them to “Check” or “Screen” their gender for them. Gender identity can be determined by no one but yourself only.

NAME CHANGING FORM

A transgender, to be eligible for the Sex Reassignment Surgery, has to change their name first and also requires permission from the court to undergo the surgery. After the grant of permission by the court, they have to present their changed name and permission letter by the court to the District Committee to get their name changed in government documentation. This is itself in the violation of NALSA judgment, which says, ‘Self-Identification’ is sufficed for someone to call themselves a Transgender, surgery, hormones, and other steps are not necessary for legal recognition. But for transgender people this has been more embarrassing, that they have to get an affidavit (either male to female, female to male, male to transgender, or female to transgender), which shall be notarized by the Magistrate. After this, they have to place advertisements in a minimum of two newspapers and also had to announce in the government official Gazette notification. They can only apply for a change in name in any government document, only when they had applied for Sex Reassignment Surgery.

PUNISHMENT CLAUSE

The punishment clause of this Act imposes imprisonment extending from 6 months to 2 years in case of assault or gender-based violence. Whilst for a similar crime against Cisgender the punishment is up to 7 years. This violates Article -14 of the Constitution. Moreover, as a general rule, those offenses which have punishment for less than 3 years are covered under Bailable offenses, and hence sexual assault against transgender can be Bailable in nature. That is huge discrimination between the cisgender and transgender.

CRIMINALISATION OF BEGGING

Section 19 of the Act has also criminalized begging for transgender, which is the major source of their income without providing any alternative. There is a provision under the Act for welfare, Education, Awareness but a source of income is required until the awareness is spread.

COMPARISION OF RULE 2020 AND ACT OF 2019

No such changes were brought to the light which could improvise all the drawbacks of the Act, against which the entire community is protesting. Initially, at the time of birth, a child is identified as a male or a female. When a person afterward releases that they are either a male in a female body or a female in a male body is known as transgender. But to get the privileges provided under the Transgender Person (Protection of Rights) Act has to undergo the Sex Reassignment Surgery, which was made mandatory for them. But in this new Rule of 2020, the Sex reassignment Surgery clause, which was mandatory, has now become an optional provision. But in light of this provision, a transgender person initially has to get approval for the identity by the court (in the form of an Affidavit) as well as the District Committee, and then the District Committee will provide the IDENTITY CERTIFICATE. In a case where the person does not want a Sex Reassignment Surgery, the procedure ends to the identification certificate only, but in another case where the person wants to apply for Sex Reassignment Surgery, they have to undergo the procedure provided under the Act, where the Screening of Trans peoples is required, where the degree of invasiveness is not specified, and there are more favorable chances for humiliation and harassment of the community.

Extensive, diligent criticism and feedback from the transgender community has now finally been taken seriously to undo all the injury that the Act and Rules could have done. The community will no longer need surgery before being entitled to binary markers, but the community will have to provide some proof of medical intervention (inclusive of anything provided in the Act from Counselling to Surgery). Regardless of anything provided in the rule, the Act has given many reasons for the community to protest. Some provisions of this Rule are better than Earlier, but yet there is nothing to Celebrate.

Author(s) Name: Ritika Saxena (Ramswaroop Memorial University, Lucknow)

Reference(s):

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[1] https://www.beandbyias.com/CurrentAffairs/DailyNewsDescription/2112/National%20Council%20for%20Transgender%20Persons

[2] National Centre for Transgender Equality (NCTE) – https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people