Updated: Jul 14
In a steps toward the major gender reform The Indian Government has decided to induct members of Transgender Community in the Country’s elite paramilitary forces ended discrimination against the marginalized section of the society.
Working upon the modalities in that direction, the Ministry of Home Affairs has sought suggestions and comments from the Central Armed Police Forces (CAPFs) on this matter. The ministry is working on the proposal to commission the “third gender” as officer in the paramilitary forces such as BSF, CRPF, ITBP, CISF and SSB along with male and female in the rules of the recruitment examination to be conducted in December, 2020.
THE LEGAL FOUNDATION OF TRANSGENDER RIGHTS
This was the long pending demand of the people belonging to this section of society and after the Hon’ble Supreme Court Judgement on April 2014 in case titled as National Legal service authority vs Union of India the third gender column for transgender persons was crated as earlier they were forced to write either male or female against their gender. The Apex Court also expressed concern of the Transgender being harassed and being discriminated in the society and also passed few directions in their favor.
The Apex Court directed the centre and state Government to take appropriate steps to treat them as socially and educationally backward class and extend reservation for admission in educational institution and public appointment.
Bench said recognition of third gender is not a social or medical issue but a human right issue. They will come under the purview of Article 21 of the Indian Constitution and have equal rights like the rest of citizens of India. The court further said in absence of law recognizing Hizra as third gender could not be continued as aground to discriminate them in availing equal opportunity in education and employment. The Courter passed few directions to the central and state Government to work on the welfare schemes of the third gender.
After the judgment Government introduced the Transgender Persons (Protections of Rights) Bill, 2019 in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot.
KEY HIGHLIGHTS OF THE BILL
Transgender persons defined: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. Intersex variations is defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.
Prohibition against discrimination: The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: education; employment; healthcare; access to, or enjoyment of goods, facilities, opportunities available to the public; right to movement; right to reside, rent, or otherwise occupy property; opportunity to hold public or private office; and access to a government or private establishment in whose care or custody a transgender person is.
Right of residence: Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.
Education: Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries. The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
Certificate of identity for a transgender person: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
Welfare measures by the government: The Bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
Offences and penalties: The Bill recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary between six months and two years, and a fine.
CRITICISM AGAINST THE ACT
All the rights given to Transgender under the Act are already guaranteed under Article 14 of the Constitution of India.
Instead of the freedom to determine their sexuality, India’s transgender people must now submit to a certification process involving a government official and doctor. If transgender person is denied certificate from the district magistrate, he does not need to mention the reason for such refusal. There are also ambiguities to whether that person has a right to appeal against such order of refusal.
If transgender people are sexually attacked, their attackers face a maximum jail term of two years against a minimum of seven years for women who are attacked.
It’s a positive sign in the direction of welfare and betterment of Transgender community, once, formalized, the decision will mark a breakthrough for Transgender rights, particularly in the tradition bound Armed forces. The move can be expected to spur recruitment of transgender in other areas of public employment.