TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 By Rahul Saxena @LexCliq

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

The Act to provide for protection of rights of transgender persons and their welfare. Issues related to
transgender persons are dealt by the Department of Social Justice and Empowerment under Ministry of
Social Justice and Empowerment.

Key Provisions of the Transgender Persons (Protection of Rights) Bill, 2019

Definition of a transgender person: 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: Any person who is found to be compelling a transgender person into bonded labour denying right of public passage to a transgender person, evicting a transgender from his/her place of residence, causing physical, sexual, verbal, economic and emotional abuse, can be penalised with imprisonment of not less than six months, that can extend up to two years. It prohibits discrimination against a transgender person on grounds including denial, discontinuation or unfair treatment in educational establishments, services, employment, healthcare. Certificate of identity: The Bill states that a transgender person shall have the right to self-perceived gender identity. A certificate of identity can be obtained at the District Magistrate’s office and a revised certificate is to be obtained if sex is changed. The bill has a provision that provides transgender the right of residence with parents and immediate family members. Welfare measures by the government: The Bill mentions that the Government will formulate transgender sensitive, non-stigmatising and non-discriminatory welfare schemes and programmes. The government shall provide education, sports and recreational facilities for transgender people. Provisions for separate HIV surveillance centres and sex reassignment surgeries should also be provided by the government. The Central Government will set up the National Council for Transgender Persons (NCT).

SALIENT FEATURES

Transgender is 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, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.  Prohibition against discrimination: The Act prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is. Transgenders have the following rights – residence, employment, education, health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.  Insurance Scheme – The government should make provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons. Certificate of identity for a transgender person to be issued by District Magistrate. Offences and penalties: The Act 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.   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 organisations.

Way Forward

In April 2019, the Madras High Court in Arunkumar v. The Inspector-General of Registration took up the issue of the validity of consent given on behalf of intersex infants for undergoing sex-selective surgeries. It held that the consent of the parent cannot be considered as the consent of the child. Hence, such surgeries should be prohibited. Therefore, this momentous judgment, which recognises the consent rights of intersex children and the right to bodily integrity, must be emulated throughout the country. Also, there should be strict penal provisions to curb the non-consensual sex reassignment surgery in transgenders. In order to adopt a holistic approach the narrative of ‘Transgender rights’ should be replaced by gender identity, gender expression and sex characteristics rights. The National Council for Transgender Persons which plays a vital role in the implementation of the law must be provided with greater representations from the community. Transgender and intersex persons might require a range of unique health care needs. Therefore, the government should incorporate healthcare interventions into the Act.

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