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Critical Analysis of Transgender Protection Act, 2019.

We live in a society that is deeply structured by Sex and Gender of people The categorization of people as 'male' or 'female' permeates our society on every level. In India there are a host of socio - cultural groups of transgender people like Hijras/ Kinnars and other transgender identities like:
Shiv-Shaktis, Jogtas, Jogappas, Aradhis, Sakhi etc.

All members of these subgroups face severe discrimination and harassment in all respects in contemporary India and they are subjected to unfair treatments like verbal abuse, physical and sexual violence; false arrests; denial of share in their ancestral property, services, and admission to educational institutions; and victimization in multiple settings like family, educational institutions, workplace, health care settings, public spaces.

For the welfare of the Trans people The Transgender People[Protection of Rights] Act 2019 was passed with the intention to provide the Trans people equality and prohibit any kind of discrimination and allowing them better opportunities and welfare Recently however the act seems to fail to portray the same sentiments as that of the decision rendered in the NALSA judgement also this Act fails to focus on the socio-legal issues surrounding trans genders and their rights in the country, The act also refers to the welfare policies but there is however no clarity regarding the implementations of the same.

Transgender people are the people are those whose gender identity differs from the gender that they were thought to be at birth. The term "Trans" is often used as a short form of Transgender. These people's gender identity or their knowledge of who they are differs from what was earlier expected when they were born, such people describe themselves as transgender. Example- A transgender woman lives as a woman today, but was considered to be male when she was born, similarly when A transgender man lives as a man today but was considered to be a female when he was born.

Transgender people are neither male or female, or are either a combination of male or female. Some of the trans people are not entirely male or entirely female such trans people are called non-binary or genderqueer.

The trans people face a lot of challenges in their day to day life. The facilities that we ordinary people enjoy, such facilities are merely like a dream for them. They are treated differently rather insensitively, Although living in the same society they are humiliated, disrespected and considered to be curse on the earth. Unlike us they too are human, they too deserve the same love and respect that any other person would receive yet, the people don't seem to understand this simple logic.

Talking about the Trans community in India. It is indeed very disappointing to see them face so much of hatred and discrimination. The society has managed to change their way of thinking according to the need of the time and somehow it has also proved to be successful in the area of social development of the people but when it comes to acceptance of the trans people as a part of the society the people seem to be holding their age old beliefs.

They fail to accept the fact that even trans people are a part of society, they too are human and are entitled to receive the same respect and love from the society that any ordinary person receives. It is rather very heart-breaking to see that the Trans People have to struggle for everything that is easily available to an ordinary person in this society. They struggle for equality, education, to earn bread. It wouldn't be wrong to say that their entire survival is based on struggles even for the basic necessities.

Yes they are different from other people but their being different is the only thing that makes them Special and Unique.

Our Indian Constitution guarantees basic fundamental rights for the welfare of the citizens of India and they can't be deprived of exercising their rights but, when it comes to the trans people they are always deprived of exercising their rights because they aren't considered to be a part of the society.

Challenges faced by the Transgender people in India

Challenges have become a part of the day to day routine of trans people. Everyday brings with it a new set of challenges for them yet, they being brave personalities have always managed to shine through every problem or challenge that comes their way but, there are certain major challenges that seriously need to be taken into consideration and work upon. They are the following:
  1. Education:
    Talking about the education system in India, its biggest flow is that the system is nowadays based on the basis of grades and the societal status. It overlooks the Talent and skill of the person. Yes a person might not be good in Academics but that doesn't make him worse in any other areas as well, not every person is genius their ideas, skills, talents differs and that's what makes them unique. If our education system understands this concept and promote education on the basis of skills also then it'll prove to be extremely helpful for the trans people as well as other people also.

    In India every person has the Right to Education up to the age of 14 years and therefore it becomes applicable to the Trans People as well, It is the society that needs to understand and this will only be possible when the schools are sensitive towards the trans people and provide them opportunities to educate themselves and do something for them as well as their community. Many times the schools refuse to admit a children knowing that they belong to the Trans community and as a result they are deprived of their right to education.

    The Organizations that are very actively working on the education system -are included in the Commission.

    Though as of now in the area of education there has been no formal recognition but slowly and steadily the changes are taking place with the state and the activists groups have undertaken objectives to provide quality education. Certain schools and colleges have taken initiatives in this matter by providing them opportunities to educate themselves. Along with this many schools and colleges have started providing admission to them. India is shaping up in a good way and if this measures are implemented overall then sooner the right to education will be available to all irrespective of their genders.
  2. Access To Health-Care Facilities:
    The trans people are often deprived to avail the health care facilities that are available to all the people. There have been many incidents where they have been discriminated on the basis of their gender or are treated inappropriately and all this Why? Because they belong to Transgender community.

    This is the one reason why they fail to get access to the medical/health care facilities. Another reasons that adds up to this problem is that there is a lack of knowledge regarding the treatment and necessary requirements of the trans people. As the medical staff is unaware of the process of treatment for trans people it sometimes become difficult for them to deal with the problems that the trans people experience and as a result due to the lack of proper treatment health related issues arise in them and they become victims of some of the deadly diseases which risks their life.

    Since the Trans people are sometimes involved in the Prostitution business there are high risk of getting infected by certain deadly diseases like HIV and many more, which reduces their chances of survival and lack of treatment makes it more complicated. Therefore there should be proper knowledge given to the medical staff also regarding the treatment of Trans people and they shouldn't be discriminated on the basis of their gender. While refusing treatment to Trans people the Doctors should remember their OATH that they may be this would develop a sense of responsibility in them towards the Trans people.
  3. Work Opportunities:
    To avail certain basic rights such as right to vote, health, education, public services etc there arises a necessity for identity document while this document isn't available to the trans people they rather face certain issues like on-the-job discrimination, wages inequality, inability to access documents and denied benefits create hurdles in their way of employment opportunities.

    Many a times they are denied jobs just because they are Trans People, though they might be more capable then any other candidate yet they face rejection because of their gender and this happens almost everywhere. Its like no firm wants to hire them because it may cause harm to their reputation and status in the society.

    There is a strong need to adopt certain steps that should be taken into implementation in order to protect them like for example Protection from harassment at workplace, equal access to benefits at the workplace so that they lead a healthy and productive life.

    These challenges faced by the trans people have always been a serious matter of concern for human rights activists in India. The kind of injustice the Trans community faces leads to lack of opportunities and cyclical form of exclusion from benefits and acceptance, due to this they are forced to get involved into begging and Prostitution that is the only option left for them to earn and survive.

    Like every individual has the right to work, love, education, participate in the community discussions, stay connected with the people similarly the Trans people also should be allowed to enjoy all this things without any restrictions or rules.

The Transgender People [Protection Of Rights] Act 2019

The problems faced by the Trans Community is being recognised by the government in the case of NALSA vs The Union of India in the year 2014. This was a case concerning the grievances of the Transgender community, They held that non-recognition of their gender violates the Article 14 and 21 of the Indian Constitution. In response to the grievances received by the Trans community the Supreme Court of India held that:-

In India the presence of the transgender community is witnessed throughout yet, the thinking of the society regarding the Transgender community is disgraceful. The Supreme Court of India also recommended the creation of welfare policies and reservations for the transgender community under the educational institutions and jobs. The court also recognized the rights of Trans people in India.

The judgement upheld the right of transgender people to self-perceive gender identity as male, female or third gender which is guaranteed by the constitution of India. The centre and state were directed by the court to grant legal recognition to address the trans-community and attend their social stigma.

A private member bill in the Rajyasabha recognized as the Rights of Transgender person in 2014 was introduced by Tiruchi Siva, A member of Dravida munnetra Kazhagam party [DMK] after the pronouncement of judgement. Though this bill was passed in April 2015 by the Rajyasabha but it somehow failed to gain majority in the Loksabha.

In the year 2016, the bill called Transgender Persons [protection of rights] was sent to the Loksabha by the centre, it stated that the responsibility of clarifying a person's identity would be allotted to the medical professionals on the basis of medical psychological characteristic this offended the Trans people and they protested against this bill and referred to the standing committee, which later submitted its report on the bill in July 2018.

Thereafter a newer version of this bill was passed by the Loksabha with 27 amendments on 17th December 2018. This bill was also severely criticized as it failed to notice the suggestions proposed by the standing committee and the transgender people. This bill had criminalized begging for the trans people which was one of the main source of their survival also there were no reservation of rights for the transgender community in the area of education and health.

So the bill was again reintroduced in Loksabha in the year 2019 and was passed on 5th August in monsoon parliament. Finally on 26th November 2016 the Rajyasabha passed the Transgender Person [protection of rights] bill 2019 without making any amendments just on the basis of voice vote. This bill was moved in both the houses of the Parliament by the minister for social justice Thaawarchand Gehlot.

Criticism of the Transgender people protection Act 2019

Trans Act 2019 violates the NALSA judgement- The Supreme Court bench had called for legislation to safeguard the rights of transgender persons. When it delivered the judgement in NALSA vs Union of India case in 2014. The bench said: "Non-recognition of the identity of Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination."

In contrast to the NALSA decision, which permitted self-identification of gender, the 2019 Act grants the district magistrate (DM) authority to recognize a person as transgender. In addition, the NALSA verdict stated that requiring sex reconstruction surgery (SRS) was immoral and illegal. It emphasized the importance of gender self-determination to one's dignity and personality.

However, the 2019 Act stipulates that a person must present proof of surgery to the magistrate in order to identify as male or female. According to activists, this gives the DM a lot of power, which could be used arbitrarily or improperly.

The 2019 Act also institutionalizes legal discrimination by imposing an imprisonment sentence of "not less than six months but which may extend to two years and with fine" for transgender victims of sexual abuse. This is significantly less than the Indian Penal Code (IPC) punishment for rape of a woman, which is "not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine."

However, the 2019 Act, which was passed to ban discrimination against transgender people by other people or establishments, does not even outline a penalty for discrimination. According to the law, a transgender person may be placed in a rehabilitation facility following a court order if their immediate family is unable to care for them. Article 21 of the constitution, which protects the right to life and dignity, is broken by this. The 2019 Act disregards the fact that transgender people have the capacity to make their own decisions. Written By: Sana Malik

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