Syllabus
GS Paper 2 – Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes; Mechanisms, Laws, Institutions and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.
Context
The All-India Institute of Medical Sciences (AIIMS), New Delhi, has revealed its intentions to establish a Center of Excellence dedicated to transgender healthcare, scheduled to commence operations in 2024.
Source
The Hindu | Editorial dated 05- December 2023
Transgender Healthcare: A Paradigm Shift in 2024
- All India Institute of Medical Science (AIIMS), New Delhi, to inaugurate a Center of Excellence for transgender healthcare in 2024.
- Transgender individuals have encountered pervasive discrimination and marginalization, enduring the harmful effects of pathologization and mental health labeling.
- Some medical practitioners have subjected transgender individuals to unscientific and inhumane practices, notably “conversion therapy.”
- The transgender community faces challenges in accessing healthcare due to exclusionary infrastructure, insufficient services, and a shortage of healthcare professionals who are adequately trained and sensitized.
Understanding the Transgender Identity
- WHO Definition of Transgender:
- The World Health Organization defines transgender as an umbrella term encompassing individuals whose gender identity and expression diverge from the societal norms associated with their assigned sex at birth.
- Recognition by the Supreme Court:
- The Supreme Court acknowledges transgender individuals as the ‘third gender,’ yet prevailing state structures continue to operate within the confines of the traditional gender binary.
- Transgender Persons (Protection of Rights) Act, 2019:
- As per the Transgender Persons (Protection of Rights) Act, 2019, a transgender person is one whose gender does not align with the assigned gender at birth.
- This includes individuals with intersex variations, those identifying as gender-queer, and those with socio-cultural identities such as kinnar, hijra, aaravani, and jogta.
- Inclusion in the 2011 Census:
- In a Historic Move, India’s 2011 Census Breaks Ground by Documenting the Transgender Population for the First Time.
- The findings of the report unveiled a substantial transgender community in the country, with an estimated 4.8 million Indians identifying as transgender.
Challenges Confronting the Transgender Community
- Discrimination and Social Exclusion:
- Encountering discrimination in workplaces, educational institutions, and within families, significantly impacting their overall well-being.
- Identity Struggles:
- Despite the Transgender Persons (Protection of Rights) Act, 2019, they often grapple with forced gender identification at workplaces, undermining their right to self-perceived gender identity.
- Social Stigma and Inequality:
- Facing obstacles in property inheritance and child adoption due to social ostracization, leading to the compulsion of undertaking menial jobs despite their qualifications or involvement in sex work.
- Legal Vulnerability:
- Experiencing custodial violence, negligence from the state, and general apathy towards their concerns in areas such as education, housing, healthcare, and employment.
- Economic Hardship:
- The absence of legal protection translates into high rates of unemployment, housing insecurity, and marginalization for transgender individuals.
- Harassment and Stigmatization:
- Confronting societal ridicule, being perceived as mentally ill, socially deviant, and facing unwarranted sexual predation stereotypes.
- Violence Against Transgender Individuals:
- Forced into gender conformism, subjected to aversion-based pseudo-psychotherapies, forced marriages, stripping, physical and verbal abuse, and coerced into prostitution by their own families.
- Healthcare Barriers:
- Limited access to basic healthcare due to apathy from the medical fraternity, often lacking competence in transgender healthcare.
- Unemployment Struggles:
- Limited employment opportunities and severe workplace discrimination due to prevalent social stigma.
- Inadequate Public Facilities:
- Facing challenges in accessing public toilets and spaces, with additional difficulties encountered in prisons, hospitals, and schools.
NALSA Case Judgement: Pioneering Rights for the Third Gender
- Right to Self-Identification:
- The Court affirmed the right of all individuals to self-identify their gender.
- Legal Recognition for Hijras and Eunuchs:
- Declared that hijras and eunuchs are legally entitled to identify as the “third gender.”
- Non-Biological Basis for Gender Identity:
- Emphasized that gender identity is not based on biological characteristics but is instead an “innate perception of one’s gender.”
- Protection of Privacy:
- Prohibited any medical examination or biological test for third gender individuals that could infringe upon their right to privacy.
- Interpretation of ‘Dignity’ (Article 21):
- Interpreted ‘dignity’ under Article 21 to encompass diversity in self-expression, allowing individuals to lead a dignified life.
- Positioned gender identity within the framework of the fundamental right to dignity under Article 21.
- Gender-Neutral Rights:
- Noted that the right to equality (Article 14) and freedom of expression (Article 19(1)(a)) are framed in gender-neutral terms (“all persons”).
- Concluded that the rights to equality and freedom of expression extend to transgender persons under these constitutional provisions.
- Legal Directives for State and Central Governments:
- Mandated full legal recognition by State and Central governments to facilitate non-discriminatory access to education and healthcare.
- Declared Hijras and Eunuchs as the “third gender.”
Healthcare and Public Facilities:
- Directed the establishment of separate HIV Zero-Surveillance Centers and provision for public toilets for transgender individuals.
- Emphasized the importance of medical care in hospitals for transgender individuals.
Socio-Economic Rights:
- Recognized third gender persons as a “socially and educationally backward class of citizens,” granting entitlements to reservations in educational institutions and public employment.
Various Government Initiatives
- Transgender Persons (Protection of Rights) Rules, 2020:
- Developed under the Transgender Persons (Protection of Rights) Act, 2019.
- Aims to recognize transgender identity and prevent discrimination in education, employment, healthcare, property management, holding public office, and accessing public services.
- National Portal for Transgender Persons:
- Facilitates digital application for certificates and identity cards nationwide.
- Enhances transparency by allowing tracking of application status, rejections, and grievance resolution.
- Garima Greh – Shelter Home Initiative:
- Aims to rehabilitate a minimum of 25 transgender persons in each of the 13 identified shelter homes across 10 cities.
- Provides shelter, food, clothing, recreational activities, skill development, legal support, and gender transition assistance for transgender persons.
- National Council for Transgender Persons:
- Constituted under the Transgender Persons (Protection of Rights) Act, 2019.
- Advises the Central Government on policies, programs, legislation, and projects for transgender persons.
- Monitors and evaluates the impact of policies to achieve equality and full participation.
- Performs functions as prescribed by the Central Government.
- Recognition in Indian Prisons:
- January 2022 advisory from the Ministry of Home Affairs to ensure privacy and dignity for third gender inmates in prisons.
- Acknowledgement of 70 transgender prisoners in Indian jails in 2020, prompting steps to address their unique needs.
The Transgender Persons (Protection of Rights) Act of 2019
- Definition of Transgender Person:
- Described as someone whose gender differs from the assigned gender at birth.
- Encompasses trans-men, trans-women, individuals with intersex variations, genderqueers, and those with socio-cultural identities like kinnar and hijra.
- Prohibition of Discrimination:
- Bars discrimination against transgender persons in various aspects, including education, employment, healthcare, public access, movement, residence, holding office, and accessing establishments.
- Right of Residence:
- Ensures every transgender person’s right to reside and be part of their household.
- Employment Protections:
- Prohibits discrimination in employment matters, with designated complaint officers in establishments to address related grievances.
- Inclusive Education:
- Mandates educational institutions supported or recognized by the government to provide inclusive education, sports, and recreational facilities without discrimination.
- Healthcare Provision:
- Directs the government to offer healthcare facilities, including separate HIV surveillance centers and sex reassignment surgeries for transgender persons.
- Certificate of Identity:
- Allows transgender persons to apply for a certificate of identity with the District Magistrate, specifying their gender as ‘transgender.’
- Welfare Measures:
- Calls for government measures to ensure the complete inclusion and participation of transgender persons in society.
- Includes provisions for rescue, rehabilitation, vocational training, self-employment, etc.
- National Council for Transgender Persons (NCT):
- Advisory body to the central government, monitoring the impact of policies, legislation, and projects related to transgender persons.
- Tasked with addressing grievances and ensuring the welfare and inclusion of transgender persons in society.
What Must be The Way Forward?
- Social Engineering and Sensitization:
- Raise awareness in society about the integral role of the transgender community.
- Emphasize community equality through education and awareness programs.
- Sensitize law enforcement agencies to the unique challenges faced by the transgender community.
- Rectifying Transgender Persons (Protection of Rights) Act, 2019:
- Amend the Act to include provisions for reservations for transgender persons.
- Reevaluate the penalization of organized begging, considering its coercive nature.
- Introduce provisions for penalizing rape or sexual assault against transgender individuals.
- Transgender-Inclusive Policies:
- Empower and sensitize legal and law enforcement systems on transgender issues.
- Implement inclusive approaches in government policies for the transgender community.
- Ensure the active participation of transgender individuals in policy formulation and decision-making processes.
- Addressing Social Concerns:
- Provide free legal aid and supportive education for transgender individuals.
- Establish policies for healthcare in public and private institutions, promoting inclusivity.
- Increase awareness and promote respect and acceptance for the transgender community.
- Financial Security:
- Ensure credit facilities and financial assistance for transgender individuals starting their careers.
- Facilitate entrepreneurship and business opportunities for financial independence.
References:
The Indian Express
The National Legal Services Authority (NALSA)
Practice Question
“Despite legislative efforts such as the Transgender Persons (Protection of Rights) Act, 2019, the transgender community in India continues to face multifaceted challenges” Discuss.