Transgender Persons Act, 2019: Here’s why the law is considered unwelcoming

For years now the transgender community has been stigmatized for not fitting into the stereotypical categories of gender norms of the country. The face a variety of problems in their day-to-day lives ranging from social exclusion, discrimination, lack of awareness and education, physical and mental abuse, lack of livelihood opportunities and the list goes on. Hijras, Eunuchs, Kothis, Aravanis, Jogappas, ShivShakthis, etc., are some Transgender communities who have been a part of Indian society for centuries. The Vedic and Puranic works of literature pieces mention “Tritiyaprakriti” meaning the third gender. According to the 2011 Census, the number of persons who do not identify themselves as ‘men’ or ‘women’ but as ‘other’ stands at 4,87,803 which accounts for up to 0.04% of the total population. According to the 2011 census, 55,000 children were identified as transgender by their parents. This act aims to promote the transgender persons by protecting their rights and working towards their social, educational as well as economic welfare.

Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act 2019 was introduced in the Parliament of India by Social Justice and Empowerment Minister Thaawar Chand Gehlot. This law was introduced to prevent transgenders from discrimination and abuse against the marginalized section thereby helping their way up to the mainstream of society. Regardless of the opposition’s attempts to send the bill to the select committee, the bill was cleared.

India’s 0.1% population is comprised of transgender. The highest proportion of transgenders is in Andaman & Nicobar Islands, West Bengal, Gujarat, Odisha, and Mizoram  – Socio-Economic and Caste Census (SECC) 2011

When a person’s sex does not match the sex assigned at birth, they are said to be Transgender Persons according to the act. This includes a variety of people under a single umbrella ranging from transgender persons, people with intersex variations and gender-queers. The development of primary or secondary sex characteristics that do not fit into typical gender norms of birth is known as intersex or intersex variations.

The government aims to stop discrimination against a transperson in aspects of education, healthcare, employment, access to goods, facilities, opportunities available to the public, right to reside or rent, access to a government or private establishment in whose care or custody a transgender person is and an opportunity to hold public or private office. According to the Act, if a person identifies himself as a transgender, he/she must make a application to the District Magistrate asking for a certificate of identification which indicates that the person belongs to the transgender community, and for this, the act also necessitates that a transgender person to should undergo “district screening committee” to get certified as a trans person. The bill states that irrespective of sex reassignment surgery and hormonal therapy, a person would have the right to choose to be identified as a man, woman or transgender. With the advent of this Act, the government takes steps forward to ensure complete inclusion and involvement of the transgender persons in society. National Council for Transgender persons (NCT) is established through the act according to which, offenses against transgender persons will appeal to imprisonment anywhere between six months and two years and also adding up to a fine.

But is the act welcoming? Does the community feel happy? Here’s why the law is considered unwelcoming. Going by the act, a district screening would be considered as a violation of Fundamental Rights as it questions their privacy. On the denial of a certificate of identity, the act does not provide the welfare schemes and programs for such people. And there shall be no appeal or review after a denial of the District Screening Committee. Laws are currently in force are only concerning ‘man’ or ‘woman’ and it is ambiguous when it comes to the case of transgender persons. The Act is silent on the mention of any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code. The act is also silent on granting any type of reservation to transgender persons.

The community response shows their apathy towards the law as they do agree that this is a step forward for the inclusion of the community but there is a lack of enforcement. The community differentiates between transgender, transsexual and intersex persons and dismisses the very idea of the act which is a ‘one solution fits all’. The people of the community also reject the provisions as encroaching their right to self-determination and privacy and they further fear that this might lead to bureaucratic discrimination. Finally, the want to be a part of the decision-making body when it comes to matters that affect them directly. the trans community feels that the act still conforms to certain stereotypes and this makes people remain binary on the very thought of accepting the community. Gender identity does not only correspond to the sex assigned at birth, but it is a person’s deep and individual experience. This involves their perception of the body and their needs.

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Mahima Shankar, currently pursuing 3rd year in Sociology from M.O.P. Vaishnav College for Women, Chennai.