Transgender Bill, 2019

Introduction

The most prized possession of a person’s being is their identity. Their selfhood. Wherever they are available from and wherever they’re going. , though it would appear to be a given within the 21st century, this basic want of being known in an exceedingly community one desires to be ascribed to isn’t aware about everybody. One among those groups is the LGBTQ community. LGBTQ is an acronym   for Lesbian, Gay, Bisexual, and Transgender. These terms are used to describe a person’s sexual orientation or individuality.

Lesbian, gay, bisexual and transgender (LGBT) people in India may face legal and social difficulties not faced by non-LGBT persons. The country has however repealed its previous laws that discriminate against gay sex and transgender identification, but there are several legal protections that haven’t been provided for including anti-discrimination laws and same-sex wedding. Many transgender folks face discrimination within the workplace and in accessing public accommodations and healthcare services at several places; they’re even not lawfully protected against discrimination.

Homosexuality was never illegal or an offence in ancient Indian but was penalized by the Bruisers during their rule in India. However, In 2018, the Supreme Court of India by declaring Section 377 of the Indian Penal Code unconstitutional in respect to consensual homosexual sex between adults decriminalized homosexuality Under legislation passed in 2019 Transgender people in India are allowed to change their legal gender post-sex reassignment surgery , and have a constitutional right to register themselves under a third gender.

LGBTQ and Hindu Mythology

Kinnar or Hijra folks, whom the govt. currently refers to as “the third gender”, have traditionally been thought to be on the brink of the gods in  Indian mythology. In India, there has been a long-standing tradition of Kinnars coming back to weddings or a child’s birth to shower blessings. In fact, they’re given hefty amounts of cash and tons of ceremonial gifts as a result of their blessings  is taken into account like God itself, and hence, believed to be quite pure and effective. It’s taboo within the Hindu faith to abuse a Kinnar, including hurt them physically, for concern of acquiring the wrath of the sole one that matters to each Indian God.

If we glance at our past in the epics, like “Ramayana” and “Mahabharata”, we’ll encounter various instances of “the third gender” having a big part of the story. it’ll show that how they need not only been considered a traditional a part of society but have also held an important place within the epics, which are considered to be holy by an outsized portion of the Indian population.

For instance, Shikhandi, a transgender one that was a lady reborn as a person , was considered the key to defeating the Kaurava army in “Mahabharata”, and held a special place in Krishna’s eyes.
 Sanskrit, one among the oldest languages within the world, was wont to write all major Hindu epics. Its grammar uses three genders: masculine, feminine, and gender-neutral. Trans-ness was clearly recognized in India’s past.
Lord Shiva manifests himself during a form called Ardhanarishvara—half man and half woman—which is worshipped all around India. Ardhnarishvara, as a figure, proves that fluid genders and sexualities are an integral part of our culture.

Additionally, several minor tales of the LGBTQ community are prevalent as religious beliefs and concrete legends alike. The story of Ila, a king cursed by Shiva and Parvati, to be gender fluid and alternate between being a person , then a lady , m , appears in several historic texts. Bahuchara Mata is that the patron goddess of the Hijra community.The Hindu Khajuraho temples, famous for his or her erotic sculptures, contain several depictions of homosexual activity.The Nāradasmṛti and therefore the Sushruta Samhita, two important scriptures from ancient India concerning dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the other sex.

The Nāradasmṛti lists fourteen sorts of panda (men who are impotent with women); among these are the mukhebhaga (men who have head with other men), the sevyaka (men who are sexually enjoyed by other men) and therefore the irshyaka (the voyeur who watches other men engaging in sex). The Kama Sutra, a Sanskrit text on human sexual behaviour, uses the term tritiya-prakriti to define men with homosexual desires and describes their practices in great detail. Likewise, the Kama Sutra describes lesbians (svairini, who engage in aggressive lovemaking with other women), bisexuals (referred to as kami or paksha), transgender and intersex people. The Sushruta Samhita and therefore the Charaka Samhita delve further into the difficulty of homosexuality, stating that homosexuals are conceived when the father’s semen is scanty and transgender people are conceived when the father and mother reverse roles during intercourse

LGBTQ And The Legal Battles

Naz Foundation vs. Govt of NCT of Delhi [2]

The NAZ Foundation, a New Delhi based NGO, filed a writ petition in the High Courtof Delhi  challenging the constitutional validity of Section 377 of the  Penal Code.[3] They submitted that Section 377 results in the violation of the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Indian Constitution . The High Court of Delhi while pronouncing the judgment has given a detailed analysis of the rights provided by the Indian Constitution. This is considered to be a landmark victory for equality and social justice. The High Court of Delhi further concluded that “Section 377 of penal if criminalizes consensual sexual acts of adults in private, is violative of Article 21[4],  Article 14[5] and  Article 15[6] of the Indian Constitution”.

Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors[7]

The said decision of High Court in Naz Foundation was appealed in the Hon’ble Supreme Court, it was held by the court that Delhi High Court was wrong in its findings and had misinterpreted the section and has allowed consensual intercourse between two adults of the same sex. The Court further held that Section 377 is as such not violative of Articles 14, 15 and 21 as long as the adults have natural sexual intercourse but it will be violative incase bestiality , sodomy etc.

Navtej Singh Johar vs. Union of India[8]

The 5 judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra partially struck down Section 377 by ecriminalizing consensual same sex relation btween two adults but has upheld that part of provision  that criminalise non-consensual acts or sexual acts performed on animals.Thus, allowing LGBT individuals  to engage in consensual intercourse and ensuring that they live a life of full dignity and in this way protecting their fundamental rights from getting violated.

Analysis of  Transgender Bill 2019

The Transgender Persons( Protection of Rights ) Bill,2019 has been passed in Lok Sabha on 5th August 2019 and in Rajya Sabha on 26 November,2019.It finally received President’s Assent on 5th December 2019 and was made into law. It seeks to empower Trans persons in social, economic and education field thus, providing benefit to the transgender community.

The Hon’ble Supreme Court in National Legal Services Authority v Union Of India had directed to recognize Transgender as third gender along with the males and females it further directed both the State and Centre to frame a welfare scheme for these people which provide them all the facilities and reservations  to carry out their life with peace and dignity.

Highlights Of The Act[9]

●        Definition of a transgender person:

It 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,, and persons with socio-cultural identities.

●        Prohibition against discrimination

It prohibits the discrimination against a transgender person, which includes  denial of service or unfair treatment in field of  education;  employment; healthcare; 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 etc.

●        Right of residence: 

Provides that every trans person will have a right to reside and be included in his household.  And if not in the household then 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.  

●        Education:

Educational institutions will  provide  education, sports and recreational facilities for trans persons, without any discrimination.

●        Health care:

The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries and will also  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’.  

●        Offences and penalties:

The Bill recognizes the following offences against transgender persons:

(i) forced or bonded labour ,

(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.

●        National Council for Transgender persons (NCT):

The NCT will consist of:

(i) Union Minister for Social Justice (Chairperson);

(ii) Minister of State for Social Justice (Vice- Chairperson);

(iii) Secretary of the Ministry of Social Justice;

(iv) one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog, and the National Human Rights Commission.  State governments will also be represented.  The Council will also consist of five members from the transgender community and five experts from non-governmental organizations.

Drawbacks of the Act

  1. The definition clause is not proper and is mixed with intersex person, transgender have different gender identity from what has given to them at birth .
  2. The judgments given by the court on transgender have forced the government to recognize them as backward sections but this act is also silent on this issue ‘
  3. The act is also biased in case of penal provisions which provides a punishment of only two years in case a transgender is harassed or sexually abused which is not so in the case of male or female.
  4. The District Magistrate can also refuse to provide them with the identification certificate without giving reason

Conclusion

Every year in the month of February, thousands of people gather and celebrate LGBT pride by rallying on the streets and hoping for society to accept them in every state of the Ind

People in the LGBT community are fighting for equal rights and acceptance. Trans people, especially, face a lot of difficulty in finding acceptance They are looked down upon all the time.

Today, homosexuality and queer identities may be acceptable to more Indian youths than ever before but within the boundaries of families, homes and schools, acceptance still remains a constant struggle for LGBT people.

If someone has to live while hiding integral aspects of themselves, then one is as good as dead and nobody talks about the dead people. Thu, in order to protect the identity of this unprevileged section of society and to uplift them  a special committee should be formed to revise and scrutinize the act again and can make required amendments to correct the loopholes as the Act in the present form may not be of much help to the Transgender community.


[1] AIR 2009(https://www.scobserver.in/court-case/section-377-case)

 AIR 2017(https://www.scobserver.in/court-case/section-377-case)

 AIR 2018(https://www.scobserver.in/court-case/section-377-case)

[2] AIR 2009(https://www.scobserver.in/court-case/section-377-case)

[3] Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

[4] No person shall be deprived of his life or personal liberty except according to a procedure established by law..

[5] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[6] Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[7] AIR 2017 (https://www.scobserver.in/court-case/section-377-case)

[8] AIR 2018 (https://www.scobserver.in/court-case/section-377-case)

[9] https://lawstreet.co/speak-legal/transgender-persons-protection-of-rights-act/

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