The Transgender Persons(Protection of Rights) Bill 2016 : IS THIS IT ? (Part ii)

Anmol Kaur Bawa

Design Courtesy: Siddhartha Sankar for vartagensex.org

In continuation with the previous article enlisting the problematic aspects of The Transgender Persons(Protection of Rights) Bill 2016

4. Demand for seats among the OBC section :

Lately the with the judgement of the Supreme court, the Transgender community has raised an essential demand of right to prospective opportunities and livelihood. Due to the years of societal suppression and denial of financial independency, the transgender community claims to be entitled to the special provisions laid for the Other Backward Classes in the economic, social and political realms.

Chapter 2 of the Bill on Prohibition of certain Acts , clause 3 states :

(a) the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof;

(b) the unfair treatment in, or in relation to, employment or occupation;

(c) the denial of, or termination from, employment or occupation;

(d) the denial or discontinuation of, or unfair treatment in, healthcare services;

(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public;

(f) the denial, or, discontinuation of, unfair treatment with regard to the right of movement; Prohibition against discrimination.

(g) the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property;

(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office;

(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a transgender person may be.

Indeed the welfare provisions look promising however, too utopian to be implementative. The reason behind this assertion of mine is settled in the staunch mindsets of the people who dwell within our society and act as influencing forces on the “norms” of this world we survive in. At first, the demands of Transgender community for incorporating a recognition of their section into the OBC list seemed out of place, but such demands have to be seen while taking into consideration the difficulties a third gender would face to change the age old stigmas and bent perspective on the lifestyles of Transgenders.

Surely a mere Supreme court declaration wouldn’t suffice to shut these social evils, the special provisions under article 16 (reservations) act as a guarantee from the state not only to give effect to the legally recognised right to protection but also form the threshold of administrative implementation of the same.

5. Privacy :

The bill has vast provisions on making identity cards for Third Gender and subsequent medical examination necessary. This has come across as a major concern with respect to one’s bodily privacy. The following provisions in the bill state :

5. A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed:

6.Provided that in the case of a minor child, such application shall be made by a parent or guardian of such child.

(1) On the receipt of an application under section 5, the District Magistrate shall refer such application to the District Screening Committee to be constituted by the appropriate Government for the purpose of recognition of transgender persons. (2) The District Screening Committee referred to in sub-section (1) shall comprise — (a) the Chief Medical Officer; (b) District Social Welfare Officer; (c)a Psychologist or Psychiatrist;

(d) a representative of transgender community; and (e) an officer of the appropriate Government to be nominated by that Government.

7. (1) The District Magistrate shall issue to the applicant under section 5, a certificate of identity as transgender person on the basis of the recommendations made by the District Screening Committee in such form and manner, within such time, as may be prescribed, indicating the gender of such person as transgender. (2) The gender of transgender person shall be recorded in all official documents in accordance with certificate issued under sub-section (1). (3) A certificate issued to a person under sub-section (1) shall confer rights and be a proof of recognition of his identity as a transgender person.”

Firstly, the absence of any specific clause assuring to maintain the dignity of the citizen under such physical and emotional screening, makes the community members apprehensive of the Government official’s professional conduct. Secondly, many have questioned the accountability of the psychiatrists and psychologists that the district screening committee shall involve. As, matters relating to one’s personal traumas, experiences, sexual feeling have to be dealt with sensitivity, maturity and trust.

Third, a prior gender-sensitivity training is required to be provided to the government official involved in the district screening, to avoid any and all kind of casual discrimination, further escalating into gender based violence within the premises of the screening department.

Poster prepared by All India Transgender Community, for a major protest at New Delhi,to resist this bill.

● The Road ahead :

The recent hue and cry over the contents of the Transgender Persons (protection Of Rights) Bill 2016 by the various interest groups across the nation have proven to be a result of common dissatisfaction with the discrepancy in expectations and reality.

In my opinion, after having read the judgement on NALSA v.s Union Of India, one can chalk out the depths at which the judiciary demystifies the spectrum of rights that should be granted to the Transgender community. Interestingly, the court has derived a lot from the international treaties and declarations such as the YOGYAKARTA PRINCIPLES in determining the third gender rights,surprisingly not much attention has been paid to the principles while drafting of the bill.

A better approach of the government should have been to call in for recommendations, modifications and comments on the draft bill, leaving the platform open to the interest groups and individuals for a qualitative scrutiny from the realistic perspective by those who would actually be on the receiving end of the proposed document.


Anmol Kaur Bawa

About Our Writer: Anmol Kaur Bawa is the granddaughter of the witches they weren’t able to burn. She’s all of 18 and a law student at SLS, Pune.

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