The Rights of Transgender Persons Bill, 2014 [“2014 Bill”] was passed as the first private member Bill in four decades in April 2015. Subsequently, the Transgender Persons (Protection of Rights) Bill, 2018 [“2018 Bill”] was passed on 17 December 2018 despite fervent objections from the transgender community regarding its problematic provisions. The 2018 Bill, which is currently before the Rajya Sabha, is a volte face on the rights that were guaranteed in the 2014 Bill.
In this blog post, we outline select provisions of both Bills and highlight their differences, while analysing whether the 2018 Bill has taken a regressive step backwards from the protections and reliefs guaranteed in the 2014 Bill.
Definition of transgender persons
The 2014 Bill defines a “transgender person” as a person whose sense of gender does not match with the gender assigned at birth. On the other hand, the 2018 Bill defines a “transgender person” as a person whose gender does not match with the gender assigned at birth, and is inclusive of intersex persons.
The distinct issues and rights of intersex persons have not been addressed in the 2014 Bill, resulting in a problematic conflation. On the other hand, the 2018 Bill has defined “intersex persons” separately and also included the term within the definition of a transgender person.
The 2014 Bill allows a person to identify as a transgender based on personal choice through their sense of gender, but is ambiguous on whether self-identification would be sufficient. On the contrary, the 2018 Bill states that a transgender person may be issued a certificate of identity without a sex reassignment surgery [“SRS”]/hormone therapy/laser therapy upon submitting an application before the District Magistrate who shall approve of/reject the same based on the recommendations of the Screening Committee.
The 2018 Bill also recognises the change in gender of a transgender person after SRS and vetting by the screening committee. Thus, while the 2014 Bill does not provide a mechanism for self-identification, the 2018 Bill provides one that is, however, insufficient and violates the rights of transgender and intersex persons to self-identify their gender.
Education and Employment
The 2014 Bill requires all Government/aided primary, secondary and higher education institutions to reserve 2% of their total seats in each class or course for transgender persons. Moreover, it requires the Government to reserve 2% of its vacancies meant to be filled by direct recruitment in every establishment. It further incentivizes employers in the private sector to ensure at least 2% of their employees are transgender persons within 5 years from the commencement of the Act. The 2018 Bill does not have provisions for reservation, and therefore fails to further representation of transgender persons in social and economic spectrums.
The 2014 Bill requires the Government to institute mechanisms to provide loans at concessional rates to transgender persons for self-employment ventures and marketing their products, while the 2018 Bill requires the Government to formulate welfare schemes and programmes to this end.
Free sex reassignment surgery
The 2014 Bill, inter alia, imposes a duty on the Government and local authorities to provide free sex reassignment surgery. While the 2018 Bill requires the Government to set-up various medical centres and an insurance scheme, it does not provide for free of cost sex reassignment surgeries.
Offences and protective measures
Offences under the 2014 Bill have only been defined under hate speech and failure to furnish information. In contrast, the 2018 Bill lays out the paradigm of offences that will be punishable under its provisions, such as denying a transgender person the right of passage to a public place. However, the 2018 Bill has criminalised begging, a traditional system of employment of transgender persons. In doing so, its provisions are in ignorance of their cultural norms. By criminalising traditional begging without offering horizontal reservation, the government is depriving them of their livelihood and sustenance.
The 2014 Bill empowers the Executive Magistrate to order/authorise safe custody/rehabilitation, protective custody and maintenance where a transgender person is facing abuse, violence or exploitation. No such provisions have been made in the 2018 Bill, which requires a transgender person to follow the regular judicial/police system to avail of protection, systems which have historically discriminated against them and hindered speedy protection owing to stringent procedural requirements and a heavy backlog of cases.
The 2014 Bill requires the Government to take all necessary steps to secure the reasonable accommodation of transgender persons as defined in the Bill, while the 2018 Bill does not have such a requirement. Broadly, the 2018 Bill shifts the burden from the State to other actors such as educational institutions, in contrast with the 2014 Bill that imposes several duties on the State.
The 2014 Bill guaranteed better protections to transgender and intersex persons and in passing the 2018 Bill, the government has taken a step backwards from realising the rights of historically marginalised communities. Thus, the 2018 Bill must be revamped to address these issues.
A more detailed comparison of the two Bills may be accessed under the Resources tab.
(This blog post was authored by Shilpa Prasad, an intern at CLPR)