Legislative Brief

The Transgender Persons (Protection of Rights) Bill, 2016

Highlights of the Bill
The Bill was introduced in
Lok Sabha on August 2, The Bill defines a transgender person as one who is partly female or
2016 by the Minister of
male; or a combination of female and male; or neither female nor male.
Social Justice and
Welfare, Mr. In addition, the persons gender must not match the gender assigned at
Thaawarchand Gehlot. birth, and includes trans-men, trans-women, persons with intersex
The Bill was referred to variations and gender-queers.
the Standing Committee
on Social Justice and A transgender person must obtain a certificate of identity as proof of
Welfare (Chairperson: Mr. recognition of identity as a transgender person and to invoke rights
Ramesh Bais) on
September 12, 2016.
under the Bill.
Such a certificate would be granted by the District Magistrate on the
recommendation of a Screening Committee. The Committee would
comprise a medical officer, a psychologist or psychiatrist, a district
welfare officer, a government official, and a transgender person.
The Bill prohibits discrimination against a transgender person in areas
Recent Briefs: such as education, employment, and healthcare. It directs the central
The Maternity Benefit
and state governments to provide welfare schemes in these areas.
(Amendment) Bill, 2016
October 27, 2016 Offences like compelling a transgender person to beg, denial of access
to a public place, physical and sexual abuse, etc. would attract up to
The Citizenship
(Amendment) Bill, 2016
two years imprisonment and a fine.
September 27, 2016
Key Issues and Analysis
The Supreme Court has held that the right to self-identification of
gender is part of the right to dignity and autonomy under Article 21 of
the Constitution. However, objective criteria may be required to
determine ones gender in order to be eligible for entitlements.
Prianka Rao
[email protected] The Bill states that a person recognised as transgender would have the
right to self-perceived gender identity. However, it does not provide
Nivedita Rao for the enforcement of such a right. A District Screening Committee
[email protected]
would issue a certificate of identity to recognise transgender persons.

October 28, 2016

The definition of transgender persons in the Bill is at variance with the
definitions recognised by international bodies and experts in India.
The Bill includes terms like trans-men, trans-women, persons with
intersex variations and gender-queers in its definition of transgender
persons. However, these terms have not been defined.
Certain criminal and personal laws that are currently in force only
recognise the genders of man and woman. It is unclear how such
laws would apply to transgender persons who may not identify with
either of the two genders.

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The Transgender Persons (Protection of Rights) Bill, 2016 PRS Legislative Research

PART A: HIGHLIGHTS OF THE BILL

Context
According to the World Health Organisation, transgender is an umbrella term that includes persons whose sense of
gender does not match with the gender assigned to them at birth.1 For example, a person born as a man may identify
with the opposite gender, as a woman.2 According to the 2011 Census, the number of persons who do not identify as
male or female but as other stands at 4,87,803 (0.04% of the total population). This other category applied to
persons who did not identify as either male or female, and included transgender persons. 3
In 2013, the government set up an Expert Committee to examine issues related to transgender persons.2 The
Committee stated that transgender persons faced issues of social stigma and discrimination which affected their
access to education, healthcare, employment and government documents. In 2014, the Supreme Court recognised a
transgender persons right to self-identification as male, female or the third gender.4 Further, the Court directed
central and state governments to grant legal recognition to transgender persons, address issues of social stigma and
discrimination, and provide social welfare schemes for them.
A private member Bill was introduced in Rajya Sabha by Mr. Tiruchi Siva in 2014 to guarantee rights and provide
welfare measures for transgender persons.5 This Bill was passed in Rajya Sabha in 2015, and is currently pending in
Lok Sabha. In August 2016, the government introduced the Transgender Persons (Protection of Rights) Bill, 2016 in
Lok Sabha. The 2016 Bill has been referred to the Standing Committee on Social Justice and Empowerment.

Key Features
Definition of a transgender person
The Bill defines a transgender person as one who is (i) neither wholly female nor male; or (ii) a combination of
female and male; or (iii) neither female nor male. In addition, the persons gender must not match the gender
assigned at birth. This will include trans-men, trans-women, persons with intersex variations and gender queers.
Certificate of identity for a transgender person
A person recognised as transgender person under the Bill shall have a right to self-perceived gender identity.
A transgender person has to obtain a Certificate of Identity which will confer rights and be proof of recognition
of identity as a transgender person.
An application for obtaining such a Certificate should be made to the District Magistrate (DM). The DM will
refer such an application to a District Screening Committee.
The District Screening Committee will comprise a: (i) Chief Medical Officer; (ii) District Social Welfare Officer;
(iii) psychologist or psychiatrist; (iv) representative of the transgender community; and (v) government officer.
The DM will issue a Certificate of Identity as transgender based on the recommendation of this Committee.
The gender of a transgender person will be recorded in all official documents, on the basis of this Certificate.
If there is any change in gender, the transgender person may apply for a revised certificate by following the same
process as that of obtaining a Certificate of Identity.
Prohibition against discrimination against transgender persons
The Bill prohibits discrimination against a transgender person, including unfair treatment or denial of service in
relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to public goods and facilities; (v) right to
movement; (vi) right to rent or own property; (vii) opportunity to hold public or private office; and (viii) access to
a government or private establishment which has custody of a transgender person.
All public and private establishments are prohibited from discriminating against a transgender person in
employment matters, including recruitment and promotion. If an establishment has more than 100 persons, a
designated person will deal with complaints in relation to the Bill.
Benefits related to employment, health and education
The central or state governments shall provide welfare schemes and programmes to facilitate and support
livelihood for transgender persons. This will include vocational training and self-employment.

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 The Transgender Persons (Protection of Rights) Bill, 2016 PRS Legislative Research

The central and state governments shall take steps to provide healthcare facilities to transgender persons
including: (i) separate HIV surveillance centers; (ii) sex reassignment surgery and hormonal therapy counselling;
(iii) review of medical curriculum; and (iv) a comprehensive insurance scheme.
Educational institutions shall provide inclusive education and opportunities for sports, recreation and leisure
activities to transgender persons.
National Council for Transgender persons
A National Council for Transgender (NCT) persons will be set up to advise the central government on policies,
and legislation related to transgender persons. It will also monitor and evaluate such policies.
The NCT will consist of representatives from (i) ministries such as social justice and empowerment, health,
minority affairs; (ii) NITI Aayog; (iii) National Human Rights Commission and National Commission for
Women; (iv) state governments; (v) nominated members from the transgender community; and (vi) experts from
non-governmental organisations.
Offences and Penalties
The Bill specifies the following offences: (i) compelling transgender persons to beg or do forced or bonded
labour (excluding compulsory government service for public purposes); (ii) denial of use of a public place; (iii)
denial of residence in household, village or other place of residence; and (iv) physical, sexual, verbal, emotional
or economic abuse.
These offences will attract imprisonment between six months and two years, and a fine.

PART B: KEY ISSUES AND ANALYSIS

Recognition of transgender identity
Self-determination of identity vs. verification of eligibility for entitlements
The Supreme Court has held that the self determination of ones gender is part of the fundamental right to dignity,
freedom and personal autonomy guaranteed under Article 21 of the Constitution.4 Further, the Court upheld the right
of transgender persons to determine their self-identified gender as a man, woman or as third gender. This would
protect their right to live with dignity and respect.
In addition, the Court directed the central and state governments to provide reservations in educational institutions
and public offices, and social welfare schemes for transgender persons. In this regard, it could be argued that there
must be objective criteria to verify the eligibility of applicants to receive benefits targeted for transgender persons. If
self-determination of ones gender identity were to be the sole criterion to receive benefits, it could be misused by
others to claim such benefits.
The Bill creates provisions to protect transgender persons from discrimination, and provide welfare schemes in
Clauses
3, 9-16
relation to health, education and employment. In doing so, the Bill provides for both self-perceived gender identity,
and a screening process to recognise the identity of transgender persons. This leads to the issue discussed below.
The meaning and implication of the term self-perceived gender identity is unclear
Clauses The Bill states that a person will be recognised as transgender on the basis of a Certificate of Identity issued through
4-7 a District Screening Committee. Such a Certificate will be proof of identity as transgender and confer rights under
the Bill. However, the Bill also states that a person who is recognised as transgender shall have the right to self-
perceived gender identity. Given that there is a requirement of a Certificate of Identity under the Bill, it is unclear
what the term self-perceived gender identity entails and how it will be enforced.
Note that, if a transgender person is denied a Certificate of Identity, the Bill does not provide a mechanism for appeal
or review of such decision of the District Screening Committee.

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 The Transgender Persons (Protection of Rights) Bill, 2016 PRS Legislative Research

Definition of transgender person

The Bill defines a transender person as one who is (i) neither wholly female nor wholly male; or (ii) a combination of
Clause 2
female or male; or (iii) neither female nor male. In addition, the persons sense of gender must not match with the
(i)
gender assigned at birth. The Bill further states that this will include trans-men, trans-women, persons with intersex
variations and gender-queers. There could be some issues with this definition.
Criteria specified in the definition of transgender person are unclear
The Bill requires that, in order to be identified as a transgender person, a person must be (i) neither wholly male nor
female; or (ii) a combination of male or female; or (iii) neither male nor female. However, the Bill does not specify if
the terms male and female refer to biological sex which includes the human anatomy and chromosomes. Or if
being male and female also refers to ones psychological sense of gender, which includes how one chooses to feel,
identify and express oneself.
International expert bodies like the World Professional Association for Transgender Health, World Health
Organisation and the American Psychological Association define a transgender person as one whose gender identity
does not align with the sex assigned at birth.1,6, 7 Note that these expert bodies do not specify any biological criteria in
their definitions of transgender persons.
In line with such international standards, the Supreme Court, the Expert Committee of the Ministry of Social Justice
and Welfare and the 2014 Private Member Bill have also defined transgender persons based on psychological
criteria only. The 2016 Bill is at variance with these definitions. We compare these definitions in Table 1 below.
Table 1: Comparison of the definition of transgender persons by various expert bodies
Supreme Court (2014)4 Expert Committee (2014)2 Private Member Bill (2014)5 Government Bill (2016)
Persons whose gender Persons whose sense of Persons whose sense of Persons who are (i) neither wholly female
identity does not match gender does not match with gender does not match with nor wholly male; or (ii) a combination of
their biological sex. the gender assigned at birth. the gender assigned at birth; female and male; or (iii) neither female nor
They express their gender Includes trans-men, trans- male; and
through several identity women, gender-queers and the persons sense of gender does not
terms and names. socio-cultural identities. match with the gender assigned at birth.
Includes trans-men, trans-women, persons
with intersex variations and gender queers.
Sources: National Legal Services Authority vs. Union of India (2014); Report of the Expert Committee on the Issues relating to Transgender
Persons (2014); The Rights of Transgender Persons Bill, 2014; The Transgender Persons (Protection of Rights) Bill, 2016; PRS.

Certain terms in the definition of transgender person have not been defined
Clause 2 The Bill includes terms like trans-men, trans-women, persons with intersex variations and gender-queers in its
(i) definition of transgender persons. However, these terms have not been defined. Therefore, it is unclear who would
be covered under these terms.

Transgender persons and their status under existing laws

Clauses Currently several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws
19, 21 such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 and Hindu Succession Act,
1956 which contain some gender specific provisions. The Bill recognises a third gender i.e. transgender. However,
the Bill does not clarify how the above mentioned laws will apply to transgender persons. Table 2 below lists some
legal provisions that are gender specific in their application.
Note that the penalties for similar offences may vary because of the application of different laws, based on gender
identity. For example, under the IPC, sexual offences related to women attract a higher penalty (up to life
imprisonment) than that specified for sexual abuse under the Bill (up to two years). 8
Table 2: Gender specific laws and procedures in India
Legislation Gender specific provision
Criminal laws
Indian Penal Code,1860 Punishment for assault on a woman with intent to outrage her modesty;
Punishment for selling female minors for purposes of prostitution;
Rape as an act committed by a man on a woman;
Word, gesture or act intended to insult the modesty of a woman;
Husband or relative of husband of a woman subjecting her to cruelty;
Dowry death, where death of a woman caused due to cruelty by husband or his relatives.

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The Transgender Persons (Protection of Rights) Bill, 2016 PRS Legislative Research

Legislation Gender specific provision

Code of Criminal Procedure,1973 A female under arrest can be searched only by another female with strict regard to decency;
Grants the power to compel restoration of the liberty of unlawfully detained females;
Requires the medical examination of a victim of rape, who should be a woman.
Indecent Representation of Women Prohibits the indecent representation of women in various forms of publications.
(Prohibition) Act, 1986
Protection of Women from Domestic Grants protection to a woman in a domestic relationship and who alleges domestic violence.
Violence Act, 2005
Civil laws
The Sexual Harassment of Women At Provides protection against the sexual harassment of women at the workplace.
Workplace (Prevention, Prohibition,
Redressal) Act, 2013
Hindu Marriage Act, 1955 Recognises marriage between a man and a woman.
The Special Marriage Act, 1954 Recognises marriage between a man and a woman.
Hindu Adoptions and Maintenance Act, Provides different criteria for a man and a woman in relation to adoption of a child.
1956
Hindu Succession Act, 1956 Heir refers to either a male or a female for the purpose of succession, in the absence of a will.
The Muslim Personal Law (Shariat) Specifies special property of females which includes personal property inherited or obtained
Application Act, 1937 by contract, gift, etc.
Other laws
The Mines Act, 1952 Prohibits the employment of a woman in areas of a mine below ground level;
Permits the employment of a woman in a mine above ground level between the hours of 6 am
and 7 pm.
Factories Act, 1948 Permits a woman from working in any factory only between the hours of 6 am and 7 pm.
National Food Security Act, 2013 States that the eldest woman in every eligible household will be head of the household for the
purpose of issue of ration cards.
National Rural Employment Guarantee States that priority will be given to women workers (at least one-third of the beneficiaries are to
Act, 2005 be women) if they have registered and requested for work under this Act.
The Companies Act, 2013 Requires the Board of Directors of every company to have at least one woman director.
Sources: Various central laws; 9 PRS.

1. Transgender persons, World Health Organisation, http://www.who.int/hiv/topics/transgender/en/.

2. Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Empowerment,
January 27, 2014, http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
3. Primary Census Abstract Data for Others (India & States/UTs), Census 2011.
4. National Legal Services Authority vs. Union of India [(2014) 5 SCC 438].
5. The Rights of Transgender Persons Bill, 2014, Private Member Bill, August 24, 2015,
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/210_2016_LS_Eng.pdf.
6. Guidelines related to Transgender persons, American Psychological Association,
https://www.apa.org/practice/guidelines/transgender.pdf.
7. Standards of Care, 7th Version, The World Professional Association for Transgender Health,
https://s3.amazonaws.com/amo_hub_content/Association140/files/Standards%20of%20Care%20V7%20-
%202011%20WPATH%20(2)(1).pdf.
8. Sections 354, 354A, 354B, 375, Indian Penal Code, 1860.
9. Sections 354, 372, 375, 509, 498A, 304B, Indian Penal Code, 1860; Sections 51, 98, 164A, Code of Criminal Procedure, 1973;
Indecent Representation of Women (Prohibition) Act, 1986; Protection of Women from Domestic Violence Act, 2005; Sexual
Harassment of Women At Workplace (Prevention, Prohibition, Redressal) Act, 2013; Section 7, Hindu Marriage Act, 1955;
Section 4, Special Marriage Act, 1954; Sections 7,8, Hindu Adoptions and Maintenance Act, 1956; Section 3, Hindu Succession
Act, 1956; Section 2, Muslim Personal Law (Shariat) Application Act, 1937; Section 46, The Mines Act, 1952; Section 66,
Factories Act, 1948; Section 13, National Food Security Act, 2013; Section 5, National Rural Employment Guarantee Act, 2005;
Section 149, The Companies Act, 2013.

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The Transgender Persons (Protection of Rights) Bill, 2016 PRS Legislative Research

Annexure: Comparison of 2016 Bill with the Supreme Court decision, 2014 Bill and Expert Committee
The Supreme Court, Expert Committee of the Ministry of Social Justice and Welfare and a 2014 Private Member Bill passed in Rajya Sabha examined several aspects
related to the recognition and rights of transgender persons. Table 3 compares the provisions of the 2016 Bill with these recommendations.
Table 3: Comparison of 2016 Bill with the Supreme Court decision, Private Member Bill (2014) and the Expert Committee report
Provision Supreme Court (2014) Expert Committee (2014) Private Member Bill (2014) Government Bill (2016)
Definition of the A person whose gender identity, A person with a gender other than A person, whose sense of gender A person who is:
term gender expression or behaviour does the gender assigned at birth. does not match with the gender (i) neither wholly female nor wholly male; or
transgender not conform to their biological sex. assigned at birth; (ii) a combination of female or male; or
person Includes trans-men and trans-women (iii) neither female nor male; and
(whether or not they have undergone
sex reassignment surgery), gender- whose sense of gender does not match with the
queers and a number of socio- gender assigned to that person at the time of birth,
cultural identities. and includes trans-men, trans-women, persons with
intersex variations and gender-queers.
Identification of Legal recognition of transgender A transgender person will have the No provision. A person recognised as transgender person shall
transgender persons who self-identify as male, choice to declare oneself as either have the right to self-perceived gender identity.
persons female or as third gender. man, woman or transgender. A certificate of identity as transgender to be issued
by a District Magistrate based on the
recommendations of a Screening Committee.
If there is a change in gender, a revised certificate
may be obtained by following a similar procedure.
Prohibition of Directs central and state Recommends non-discrimination in: Discrimination refers to any Prohibits discrimination in relation to areas including:
discrimination governments to address social (i) families; (ii) educational restriction due to a persons gender (i) education; (ii) employment; (iii) healthcare; (iv)
stigma and discrimination faced by institutions; (iii) healthcare; (iv) social identity which affects their human access to public goods; (v) right of movement; and
transgender persons. welfare; (v) shelter and residence. rights and freedoms. (vi) occupation of property.
Welfare Directs central and state Recommends schemes for: (i) Requires provision of schemes for: Requires provision of schemes for: (i) rehabilitation;
schemes governments to provide schemes for education; (ii) subsidised loans; (iii) (i) pension ;(ii) unemployment (ii) livelihood support; (iii) healthcare facilities; and (iv)
transgender persons in areas pension; and (iv) grants to allowance; (iii) health provisions like insurance.
including housing and employment. organisations working with free sex reassignment surgery; (iv)
transgender persons. insurance.
Reservations Directs provision of reservation in: (i) No recommendations. Requires provision of reservations No provision.
educational institutions; and (ii) for two percent seats in all
public appointments by the central government educational institutions
and state governments. and offices.
Grievance Not addressed. No recommendations. Special transgender rights courts to No mechanism of grievance redressal specified.
redressal and be created. Penalties (imprisonment and fine) specified for:
penalties Court to determine penalties for (i) compelling a transgender person to beg; (ii)
offences. denying access to public places; and (iii) physical,
Penalties specified for hate speech sexual and verbal assault.
(imprisonment and fine) and failure
to furnish information (fine).

Sources: National Legal Services Authority vs. UoI (2014); Report of the Expert Committee (2014); The Rights of Transgender Persons Bill, 2014; The Transgender Persons (Protection of Rights) Bill, 2016; PRS.