“We must keep in mind that growth must not only be rapid, it must be inclusive and sustainable. The benefits of growth must reach the SC, ST, minorities and other disadvantaged groups in our society.”                                                                                                                                           – Dr, Manmohan Singh, ex-PM1.

The transgenders are one of the marginalized sections of society and they face much discrimination in all forms whether social, economical and political. To save them from these atrocities, the ministry of Social Justice and Empowerment on 26 Nov passed the transgender persons (protection of rights )Act 2019 and the president gave assents on 5 Dec 2019 and finally enforced from 10 Jan 2020.

But in April 2020, the Ministry of Social Justice and Empowerment proposed the Transgender Person (Protection of Rights) Rules 2020, for accompany and clarification of the 2019 Act.

Problems faced by Transgender-

1. Societal Norms– if the child is behaving in an inappropriate way or like opposite genders, then they not accept him or even scold and start threatening him.

2. Economic injustice– they are usually not so much educated due to various reasons and one of them is most of the school and colleges do not accept their admission. There is no reservation in schools and colleges. Even in jobs they have very limited employment opportunity. Sometimes they become the victim of Human Trafficking, involved in begging and dancing to just feed themselves.

3. Personal laws– there is no specific laws regarding same sex marriage and issues involved in it. There is no properly mentioned in property law that how that how a transgender claims their property rights. They also faced difficulty in adoption of child.

4. Healthcare system– there is no proper public toilet or places to be used by them. In hospital there are no transgender wards, so they admitted to males wards and faced humiliations. Some people even deny their medical services. There is no proper hygiene facility for them.

5. Political injustice- according to article 326 of constitution all citizens have right to vote but in 1994, the transgender persons got right to vote. But during issue of voter card they caught in question of male and female, similarly in many government documents they have to face a similar situation.

History of evolution of laws for the welfare of Transgender:

This all was started on 15 April 2014, when the SC pronounced the judgment in national legal service authorities of India v/s.UOI2, in this the court recognize the rights of transgender person and prohibit the discrimination against them and also to make welfare policies and reservations in jobs.

The main thing in this, it upheld the right of self perceived gender for them. The judgment also got its confirmation in Justice K.S.Puttaswamy & UOI (2017)3 and Navtej singh johar v/s. UOI (2018)4.

But in Jan 2014 i.e. before the NALSA judgment, the expert committee report was published after consultation with ministry of Social Justice and Empowerment.

Meanwhile, a private member bill i.e. right of Transgender person bill 2014was introduced in Rajya Sabha by DMK party. The government asked to withdraw bill. But as they have majority in house, it passed. But Transgender called that they are haven’t involved in any process. So, after receiving the comments from transgender, bill sent to Ministry of Law and Justice. Then known as Transgender Person bill, 2015. The bill was again introduced in Lok Sabha in 2016 and debated but 2014 bill was passed by Rajya Sabha and still pending and government gave Transgender Person (Protection of rights) bill 2016.

The bill was severely critized by the Transgender community then it send to the standing committee. The committee sends report in 2018. The government made 27 amendments but not follow committee report and Transgender comments and Loksabha dissolved.

In 2019, the Lok Shaba reconstituted and bill again reintroduced and passed in Lok Sabha on 5 Aug 2019, the day of scrapping art.370 of constitution. Rajya Sabha passed on 26 Nov 2019 and then Act comes in effect from 10 Jan 2020, after the notice by ministry Social Justice and Empowerment in official gazette.

Transgender Person (Protection of rights) Act of 2019    

“Person whose gender does not match with the gender assigned to that person at birth and include trans-man or trans-women, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra. Aravani and jogta”5

The Act deals with the 9 chapters:

Chapter 1- preliminary (sec 1-2)

Chapter 2-prohibition against discrimination (sec 3)

Chapter 3- recognition of identity of transgender person (sec 4-7)

Chapter 4- welfare measures by government (sec 8)

Chapter 5- obligation of established and other person (sec 9-12)

Chapter 6- education, social security, and health of transgender person (sec 13-15)

Chapter 7- National council for transgender person (sec 16-17)

Chapter 8- offence and penalty (sec 18)

Chapter 9- miscellaneous (sec 19-22)

 But this Act was protested on the following reasons:

• They have problem with the name of Act because they used the word “transgender” and they rejected this word as nomenclature.

• The mandate certificate from D.M. is against the principle of self determination. One of the principle in Human Right (ICCPR 1977).

• The Act doesn’t talk about health care needs.

• The Act doesn’t talk about re-assignment surgery, free of cost or on subsidized amount.

• The sexual abuse is punishable for 2 years only.

• It doesn’t provide reservation in education and jobs, as this is against Article 16(2) as discriminate on the basis of sex and in Art.16 (4) state is bound to take action.

• The Bill not give civil rights such as marriages, adoption ,social security, pension etc.6

Transgender Person (Protection of Rights) Rules of 2020 –

The key features of these rules-

• It contains the specific process and manner that how the certificate will be issued to them.

• Along with affidavit, they also have to submit the psychologist report.

• The D.M. gave certificate only to those who are residence under their jurisdiction for period of one year.

On 16 April 2020, the government circulated the draft of rules for the public feedback.

Comparison between the provision of  2019 Act and 2020 rules.

Key issues related to transgender rules 2020

1. The certification of identity, the requirement of psychologist’s report-    the transgender has the right to self perceive their identity and identity card to be issued by the D.M. to confer the rights and benefits of the Act.

The purposes of the psychologist report are not clear and thus violate the principle of self determination.     It is not specified that what the contents of the psychologist report are because already the affidavit is provided by the transgender.

               Post of clinical psychologist  are not sufficient; According to NHRC 2019 report there are only 898 psychologist whereas demand is for 20,25

2.) Before summiting application, has to be resident for one year under D.M jurisdiction. This has increased the burden upon transgender because they have no proper       employment and homelessness.

3.)Purpose for collecting and sharing data is not properly specify: that whom the information is given and for what purpose whether it is for security purpose , send to state government or central government or elsewhere.

  Why peoples are objecting against transgender person (protection of rights) rules 2020:

1. These rules come in April 2020 i.e. in lockdown period, where people are anble to meet and discuss the issues regarding it.

2. The timeline to give objections was from 18 April to 30 April in lockdown period where as in normal bill time period of 30 days is given. When the lockdown 2 starts they also extends the date up to 18 May which is unacceptable to many peoples8.

3. The rules are only provided in the English language and become problematic for many people to understand it.

4. Many activists say that during this time the they are struggling for food and shelter.

5. The punishment for sexual abuse in IPC is not less than 7 years whereas in this Act is only 2 years.

6. These rules does not contain the penalty and punishment for the violation of these rules and incite the practice for discrimination.

7. There is arbitrary power on District Magistrate to reject the application and no provision of appeal, that who is the appellant authority and in what time period they have to close the appeal.

8. It also violates the right of self identity as there is no need of psychologist report.

Conclusion:

The transgender person (protection of rules) 2020 are to justify the Act of 2019 and for the broad view of it .To clarify the provisions like the manner of issue of identity card and other welfare policies. But the people are protesting against it because it works like a toothless tiger as this Act doesn’t marked upon the expectation of peoples and having various anomalous as its contain less punishment than prescribed in IPC etc. But these types of Acts should be encouraged for the protection of the disadvantaged and minorities’ peoples like transgender to save them for the discriminations and other social stigmas. As in article 14,15,16 in constitution of India clearly saves the person from all forms of discriminations. So, state should make the Acts to preserve their fundamental rights.

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1. Twelve five year plan(2012-2017):faster more exclusive and sustainable growth, vol.1 foreword page no.6  

2. NALSA v. UOI AIR (2014) SC1863

3. K.S.puttaswamy v. UOI AIR (2019) 10 SCC 1

4. Navtej singh johar v. UOI AIR (2018)SC 4321

5. Transgender Person (Protection of Right) Act 2019 sec 2(k)

6. Ramaya Kannan, what are the objections to the Transgender Person Bill Dec  01, 2019 (13:27) IST https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.e

7. https://www.prsindia.org/billtrack/draft-transgender-persons-protection-rights-rules-2020               

8 G.Ram Mohan, half implementation of trans act 201: activist (5 June 2020).   https://thewire.in/lgbtqia/trans-act-2019-rules-feedback-activists__