1 TRANSGENDER RIGHTS BILLS AND OPPOSITIONS TO

THE BILLS IN INDIA

1.1 Introduction:
In India, the transgender rights movement is growing very fast in recent times.
The LGBT community around the world has made marvelous steps toward realizing
legal recognition, in the recent past. In Asia, where transgender/Hijras, an identity
category for people assigned male at birth who develop a feminine gender identity, have
long been recognized culturally, because of blessing at weddings and childbirth give
them some protection and respect in the society.1

1.2 Transgender Rights Bills

1.2.1 Rights of Transgender Persons Bill, 2014

Tiruchi Siva Member of Parliament introduced The Rights of Transgender

Persons Bill, 2014 which was discussed in the Upper House of the Parliament on
December 10, 2014. The present Bill was debated by all the members, and the Bill was
sanctioned. The Bill suggested various remedies against discrimination faced by the
transgender community. It also provides educational, employment chances, and
rehabilitation.

The proposed Bill the Rights of Transgender Persons Bill, 2014, seeks to end
the alienation of the transgender people in India. This comes after a chain of other
related cases in the sphere of the transgender community in India.

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A comprehensive and comparative Ph.D. research on the rights of the transgender community, by
Ms. Sunita Bachchhav, a Ph.D. scholar at Savitribai Phule Pune University. She is a pro-bono legal
advisor to Miss Chandni’s Nirbhaya Institute Pune from 2013. She is also connected to Sampathik
Trust Pune, Phone -+919766162492, Email-sunitabachchhav@gmail.com

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 Section 2 (t) of the Bill describes “transgender person means a person, whose
gender does not match with the gender assigned to that person at birth and includes
trans-men and trans-women (whether or not they have undergone sex reassignment
surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-
cultural identities such as Kinnars, Hijras, Aravanis, Jogtas etc.” 2

The main provisions of the Bill are as follows:

4. Equality and non-discrimination.

5. Transgender children.

6. Right to life and personal liberty.

7. Right to live in the community.

8. Right to integrity.

9. Protection from cruelty, inhuman treatment or punishment.

10. Protection from abuse, violence, and exploitation.

11. Right to home and family.

12. Freedom of speech, etc.

13. The duty of educational institutions to provide inclusive education to transgender

students.

14. Adult education for transgender persons.

15. Vocational training and self-employment.

16. Non-discrimination in employment.

17. Social security.

18. Healthcare facilities.

19. Rehabilitation of transgender.

2 S. 2 (t) of the Rights of Transgender Persons Bill 2014, (Pending)

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 20. Leisure, culture, and recreation.

21. Reservations in educational institutions.

22. Reservation of posts for transgender persons.

23. The incentive to employers in the private sector.

24. Special employment exchange

Being the first Bill in India that sheds light on the rights of the transgender
people, it was applauded by some. Others, on the other hand, ridiculed and mocked the
lawmaker's move and gesture stating that it fails to address the real issues faced by the
transgender community on the ground. This is mainly based on Section 377 of IPC.
Nevertheless, there is hope as many organizations are geared to see to it that the
transgender people’s rights are looked into.

1.3 Transgender Persons (Protection) Rights Bill 2016

On December 26, 2015, Shri Thaawarchand Gehlot, Minister of Social Justice

and Empowerment Presented revised Bill, called “The Transgender Persons (Protection
of Rights) Bill, 2016.”

Tiruchi Siva DMK Rajya Sabha Member’s Rights of Transgender Persons Bill,
2014 is a competitor to the Transgender Persons (Protection of Rights) Bill, 2016.
Tiruchi Siva’s Bill was passed in the upper house, but not debated in the Lok Sabha.
The Cabinet approved the Transgender Persons (Protection of Rights) Bill, 2016 in
August 2018 and it passed in December 2018. Meanwhile, the Supreme Court of India
decriminalized homosexuality in September 2018 in Navtej Johar’s case.

The Bill gives a basic definition of what a transgender is and makes provisions
for certain safeguards and measures against transgender. It also states the penalty for
offenders.

Section 2 (i) defines:

“(I) "transgender person" means a person who is

a) Neither wholly female nor wholly male; or

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 b) A combination of female or male; or
c) Neither female nor male; and whose sense of gender did not match with
the gender assigned to that person at the time of birth, and includes trans-
men and trans-women, persons with intersex variations and gender-
queers”3

1.4 Transgender Persons (Protection) Rights Bill 2018

The Lok Sabha of the parliament passed the Transgender Persons (Protection of
Rights) Bill, 2018 on December 17, 2018. This Bill passed with 27 amendments,
includes a change in the definition of Transgender Person. The previous definition
describes “transgender persons as neither wholly female or nor wholly male” which
was criticized by the transgender community. The new definition of Transgender
person as follows:

Section 2 (k) “transgender person" means a person whose gender does not match
with the gender assigned to that person at birth and includes trans-man or trans-woman
(whether or not such person has undergone Sex Reassignment Surgery or hormone
therapy or laser therapy or such other therapy), person with intersex variations, gender-
queer and the person having such socio-cultural identities as Kinner, Hijra, Aravani and
Jogta.”4

Some provisions of the Bill are as follows:

1.4.1 Chapter II, Section 3 Prohibition against discrimination

According to this section, no one shall discriminate against the transgender

person in educational services, employment or occupation, healthcare services, use of

3 S. 2 (i) Transgender Persons (Protection) Rights Bill 2016 (Pending)

4 S. 2 (k) of the Transgender Persons (Protection) Rights Bill 2018 (Passed by House of the People on 17.12.2018)

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any goods, accommodation, right to movement, right to occupy any property, to hold
public or private office, etc.

1.4.2 Chapter III, Sections 4, 5, 6, 7, and 8 Recognition of identity of a

transgender person

According to Section 4 (1) “A transgender person shall have a right to be

recognized as such, in accordance with the provisions of this Act.”

Section 5. Application for certificate of identity

“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 by such documents, as may be prescribed: Provided that in the case of a
minor child, such application shall be made by a parent or guardian of such child.”

Section 6. District Screening Committee

According to Section 6 (1), 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.

Section 6 (2) sub-section (1) “this District Screening Committee shall

comprise-

(a) The Chief Medical Officer;

(b) District Social Welfare Officer;

(c) A Psychologist or Psychiatrist;

(d) A representative of the transgender community; and

(e) An officer of the appropriate Government to be nominated by that

Government”

Section 7. Issue of certificate of identity

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 “(1) The District Magistrate shall issue the certificate of identity as a
transgender person on the basis of the recommendations made by the
District Screening Committee.

(2) The gender of a transgender person shall be recorded in all official

documents in accordance with a 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.”

Section 8 Change in gender

(1) “After the issue of a certificate of identity the transgender person undergoes
surgery to change gender either as a male or female, such person may make
an application, to the District Magistrate for the revised certificate, in such
form and manner as may be prescribed.”

(2) “The District Magistrate shall, on receipt of an application along with the
Certificate under sub-section (1), and on being satisfied with the
correctness of such certificate issue a certificate indicating the change in
gender in such form and manner and within such time, as may be
prescribed.

(3) The person who has been issued a certificate of identity under section 7 or a
revised certificate shall be entitled to change the first name on the birth
certificate and all other official documents relating to the identity of such
person: Provided that such change in gender and the issue of a revised
certificate under sub-section (2) shall not affect the rights and entitlements
of such person under this Act.”

1.4.3 Chapter IV, Section 9: Welfare Measures by the Government

Section 9, describes the obligation of the appropriate government to promote

and protect the right of transgender persons to participate in cultural and recreational
activities also to secure full and effective participation of transgender persons in the
society. This section includes the instruction to the local appropriate government, on
the protection of rights, rehabilitation, rescue and protection of the interests of

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transgender persons with necessary aid. Welfare schemes for transgender are also
advised.

1.4.4 Chapter V, Sections 10, 11, 12, and 13: Obligation of Establishment and
other Person

Section 10. Non-discrimination in employment

“No establishment shall discriminate against any transgender person in any

matter relating to employment including, but not limited to, recruitment, promotion,
and other related issues.”

Section 11. Obligations of establishments

“Every establishment shall ensure compliance with the provisions of this Act
and provide such facilities to the transgender person as may be prescribed.”

Section 12. Grievance Redressal mechanisms

“Every establishment shall designate a person to be a complaint officer to deal

with the complaints relating to a violation of the provisions of this Act.”

Section 13. Right of residence

“Section 13 (1). No child shall be separated from parents or immediate family

on the ground of being a transgender also provided that in subsection (2) Every
transgender person shall have:

a) A right to reside in the household where the parent or immediate family

members reside;
b) A right not to be excluded from such household or any part thereof;
c) A right to enjoy and use the facilities of such households in a non-discriminatory
manner.
d) Where any parent or a member of his immediate family is unable to take care
of a transgender, the competent Court shall by an order, direct such person to
be placed in the rehabilitation center”

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1.4.5 Chapter VI, Sections 14, 15, and 16 Education, Social Security and Health
of Transgender Person

Section 14. The obligation of educational institutions to provide inclusive

education to transgender persons

“Every educational institution shall provide inclusive education and

opportunities for sports, recreation and leisure activities without discrimination on an
equal basis with others.”

Section 15. Vocational training and self-employment

“The appropriate Government shall formulate welfare schemes and programs to

facilitate and support the livelihood for transgender persons, including their vocational
training and self-employment.”

Section16. Health care facilities

a) “Bring out a Health Manual related to sex reassignment surgery to set up separate
HIV Centers;
b) To provide for medical care facilities including sex reassignment surgery and
hormonal therapy;
c) Counseling before and after the surgery and hormonal therapy;
d) Review of the medical curriculum and research for doctors to address their specific
health issues;
e) To facilitate access to the transgender persons in the hospitals and other healthcare
institutions and centers;
f) Provides for coverage of medical expenses by a comprehensive insurance scheme
for Sex Reassignment Surgery and any other health issues of Transgender person”

1.4.6 Chapter VII. National Council for Transgender Person

Section 17. National Council for Transgender

“The central government shall by notification constitute a National Council for

Transgender which consist of the Union Minister, Chairperson, the Minister of State,
Vice-Chairperson, Secretary to the government of India, member, one representative

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each from the Ministries, members, one representative each from the National Human
Rights Commission and National Commission for Women, members, representatives
of the State Governments and Union territories, members, five representatives of
transgender community, members, five experts, to represent non-governmental
organizations or associations, members, Joint Secretary to the Government of India in
the Ministry of Social Justice, member

(3) A Member of National Council, other than ex officio member, shall hold
office for a term of three years from the date of his nomination.”

Section 18. Functions of the Council

“The National Council shall perform the following functions, namely:

(a) To advise the central government on the formulation of policies, programs,

legislation, and projects with respect to transgender persons;

(b) To monitor and evaluate the impact of policies and programs designed for
achieving equality and full participation of transgender persons;

(c) To review and coordinate the activities of all the departments of government and
other governmental and non-governmental organizations which are dealing with
matters relating to transgender persons;

(d) To redress the grievances of transgender persons;

(e) To perform such other functions as may be prescribed by the central

government”

1.4.7 Chapter VIII Offenses and Penalties

Section 19. Offenses and penalties

“Whoever compels a transgender person to indulge in the act of begging or

forced or bonded labor, denies the right of passage to a public place, forces to leave the
household, village or place of residence, harms or injures or endangers the life, safety,
health, or well-being, whether mental or physical, shall be punishable with
imprisonment for a term which shall not be less than six months but which may extend
to two years and with fine.”

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1.4.8 Chapter IX Miscellaneous

“Section 20. Grants by Central Government.

Section 21. Act not in derogation of any other law.

Section 22. Protection of action taken in good faith.

Section 23. Power of appropriate Government to make rules.

Section 24. Power to remove difficulties.”

1.5 Parliamentary Debate on the Transgender Persons (Protection

of Rights) Bill, 2018

The Transgender Persons (Protection of Rights) Bill, 2018 was passed in Lok
Sabha. The government introduced 27 amendments in the Bill. There was a big debate
in the house about the present Bill. The amendments submitted by opposition members
were rejected. Many members of the Parliament oppose the Bill. Some arguments
against the Bill as follows:

1. According to Kakoli Ghosh Dastidar, this Bill is "hastily-drafted", its clauses

are inconclusive so the Bill must be withdrawn because the Bill doesn't adhere
to the Supreme Court ruling.
2. Supriya Sule said that 'others' as gender identity must be replaced with
transgender in all applications. There is a need for the transgender welfare
board, need to set up a helpline for transgender. The government needs to set
up a joint parliamentary committee for discussion on the Bill and various
reservations for the transgender community. These things are not included in
the present Bill.
3. The definition of the transgender is ambiguous and not clear as gender is
decided on anatomy or psychology and some important concepts like Queer,
Intersex, Transmen, and Transwomen are not defined in the present Bill as per
Mr. Bhartruhari Mahtab. He argued that there are no gender-specific laws
applicable for transgender hence if the Bill is accepted with 27 amendments,
more members will bring more amendments instead of this ministry needs to
bring a fresh Bill. An alternative to the District screening committee ought to

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 be provided in case there is rejection in the issue of the certificate of identity
to the transgender community.
4. Shashi Tharoor explained that the Bill needs 41 amendments and supports on
the demand for the Joint parliamentary committee for discussion on the Bill.
He added that the Bill is defective and incomplete criticizing the provision of
setting up a screening committee to decide whether a person is transgender.
The Bill is also silent on the subject like marriage, divorce, adoption,
inheritance, etc. Penalty for sexual abuse of transgender person which is
imprisonment for a term six months extendable to two years and with fine is
very less, hence should be the same as the case of women victims. Mr. Tharoor
demanded a fresh Bill through consultation with the transgender community.
5. Badaruddoza Khan insists on the reservation to the transgender community and
permits them to take participation in sports events.
6. N.K. Premachandran and Tathagata Satpathy suggested some amendments, but
this suggestion is not taken into consideration.
7. While responding to the debate, Social Justice and Empowerment Minister
Thawar Chand Gehlot said, “The Bill has been prepared after due discussion
with all stakeholders. Work on the Bill has been going on since 2015. There
was a private member’s bill as well, which has been discussed by Parliament.
The Bill had gone to the standing committee, and as many as 27 amendments
have been accepted by the government. Whatever other suggestions are there
will be incorporated into the rules of the Act.”5

1.6 The opposition of the Transgender Persons (Protection of

Rights) Bill, 2018 from the transgender community

The passing of the Transgender Persons (Protection of Rights) Bill, 2018, was
met with mixed reactions. Many transgender activists and various groups held protests

5
Shalini Nair and Deeptiman Tiwary, Lok Sabha passes Transgender Persons Bill with 27 changes,
The Indian Express 15 January, 2019, https://indianexpress.com/article/india/parliament-winter-
session-lok-sabha-passes-transgender-bill-5497844/ Last seen on 15-01-2019

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across India against the Bill claiming that it was half baked and won't be of any
significance to the LGBT community. These groups pointed out some lacunas in the
Bill as follows:

I. Silent on Reservations

In the National Legal Services Authority v. Union of India 2014 the Central and
State Government directed to provide the transgender community reservations in the
educational institution and public employment and consider them as socially and
economically backward classes. But the Bill remains silent on the reservation. Mr. Gee
Imaan Semmalar, a transgender activist said “Reservation or affirmative action was one
of the major demands. If we have to enter the employment and education sector, we
need reservations. NALSA said the transgender people should be considered socially
and economically backward. This will ensure that they get better care and recognition
from the central and state government. The National Backward Classes Commission
has not given any objection to this Bill.”6

II. Prohibition of begging

Section 19 (a) of the Bill criminalizes begging and proposes imprisonment for
a term six months, which may extend to two years and also liable for a fine.

According to Grace Banu, a transgender activist from Tamil Nadu,

criminalization of begging in this Bill is completely against the community since most
of the transgender beg do sex work for a living. She claimed the bill offers no solution
to their current problems.

As Gee Imaan said, “In the face of structural marginalization of the trans
community, one of the few livelihood options that they have is begging. If you’re not

6
Sanyukta Dharmadhikari and Sharanya Gopinath, 'Equal to killing us': Why India's transgender
community is rejecting the Trans Bill, The News Minutes, 18 December 2018,
https://www.thenewsminute.com/article/equal-killing-us-why-indias-transgender-community-
rejecting-trans-bill-93579, last seen on 22-01-2019

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providing alternative opportunities and taking away the opportunities that they have, it
is completely unfair.”7

III. No legal protection against rape and sexual assault

A gang-rape case accused in August 2017, got the bail because the victim is a
transgender. Section 375 and which deal with a man commits rape against women and
no provision for people of the third gender. Section 377 of the IPC also clearly states
that intercourse against the order of nature with any man, women, or animal again no
provision of the third gender. The present Bill has been giving punishment for six
months, which will be the extent to two years. This is a very lesser punishment
compared to a crime against women. The transgender community is demanding better
provisions for this kind of crime.

IV. Destroys the notion of gender self-identification

Section 6 (1) destroys the notion of gender self-identification by providing the

screening committee for issuing the certificate of identity. This waters down the
affirmation by the Supreme Court in NALSA judgment.

V. No consultation with the community

There is no proper consultation with the transgender community leader and

various transgender activists before passing the Bill.

VI. No legal recognition of same-sex marriages

No legal recognition and protection of same-sex marriages in the 2018 Bill.

According to Mr. Bindumadhav Khire (Founder of The Sampathik Trust LGBTI

7 Ibid

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Institute, Pune) “We need legislation for LGBT community on similar lines as Special
Marriage Act, 1954”

1. The Transgender Persons (Protection of Rights) Bill, 2019

Transgender Persons (Protection of Rights) Bill, 2018 was pending in the Lok
Sabha lapses with the dissolution of the House. In July 2019, The Union Cabinet
approved the proposal for the Transgender Persons (Protection of Rights) Bill, 2019.

This Bill is not criminalizing the transgender community for begging. A person
would have the right to choose to be identified as a man, woman or transgender,
irrespective of sex reassignment surgery and hormonal therapy. It also requires
transgender persons to go through a district magistrate and "district screening
committee" to get certified as a trans person. The committee would comprise a medical
officer, a psychologist or psychiatrist, a district welfare officer, a government official,
and a transgender person.

This Bill purposes educational, social, economic, and cultural empowerment of

the transgender community in India. The government’s second step is to send the Bill
to Parliament. Bills have been introduced one after another, but none of the Bill
approved yet.

1.7 Conclusion
No doubt these all transgender rights Bills are helpful to the transgender
community but these Bills are having some lacunas also. This Bill doesn’t touch other
matters of the family hence won’t give full rights. Issues like child adoption in family
law, details of sex realignment surgery among others, should also be checked or added
to the Bill. Many other laws are gendered hence this Bill calls for a full review of the
different laws so that the transgender individuals are incorporated well in the economy.

There are a lot of issues that the Bill does not solve, hence being termed by some
as a blindfold or rather scapegoat for the much-awaited pro-LGBT laws in India.

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