The Central Government on July 13 published the draft ‘Transgender Persons (Protection of Rights) Rules, 2020’ which it proposes to notify under the Transgender Persons (Protection of Rights) Act, 2019.
It has also invited suggestions and objections, if any, from the stakeholders to be addressed to the Joint Secretary to the Government of India in the Ministry of Social Justice and Empowerment within 30 days from the publication of the draft rules.
The draft proposes the definition of ‘discrimination’ to “means any distinction, exclusion or restriction on the basis of gender identity and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation”.
Application for issue of the certificate of identity and for change of gender
The draft rules inter-alia provide for the procedure to make an application for the issue of a certificate of identity under the Act.
The applications in a prescribed form to be submitted to the District Magistrate in person or by post till online facilities are developed by the State Government concerned and thereafter the application shall be made online only.
In case of a minor child, such application shall be made by a parent or guardian of such minor child and in the case of a child in need of care and protection, by the competent authority under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Further, transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act shall not be required to submit an application for a certificate of identity under these rules provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act.
If a transgender person undergoes medical intervention to change sex either as a male or female, such person may apply a form prescribed under the rules, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone the said medical intervention, to the District Magistrate for the issue of a revised certificate of identity.
The draft rules add that the applicant shall have a right to appeal, within sixty days from the date of intimation of the rejection of the application, to the appellate authority as designated by the appropriate Government for a final order.
Welfare measures, education, social security and health of transgender persons by appropriate Government
Further, the draft rules inter-alia provide that the State/UT Governments shall review all existing educational, social security, health schemes, welfare measures, vocational training, and self-employment schemes to include transgender persons to protect their rights and interests and facilitate their access to such schemes and welfare measures framed by that Government.
All educational institutions, the rules say, shall have a committee that transgender persons can approach in case of any harassment or discrimination, with powers to ensure that transgender students do not have to be affected by the presence of the persons bullying them, including teachers.
In addition, the State/UT Government shall carry out an awareness campaign to educate, communicate and train transgender persons to avail themselves of the benefits of welfare schemes, educate and train transgender persons on their rights; eradicate stigma and discrimination against transgender persons and mitigate its effects.
Provisions for non-discrimination
As per the draft rules, the Central Government or the State Governments, as the case may be, shall also take adequate steps to prohibit discrimination in any Government or private organisation or establishment including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation and opportunity to hold public or private office.
Further, every State Government shall set up a Transgender Protection Cell under the charge of the District Magistrate and Director General of Police to monitor cases of offences against transgender persons and to ensure timely registration, investigation and prosecution of cases under Section 18 of the Act.
Equal opportunities in employment
The draft rules provide that every establishment shall implement all measures to ensure non-discrimination against any transgender person in any matter relating to employment including, but not limited to, infrastructure adjustments, recruitment, promotion and other related issues. Also, every establishment shall publish an Equal Opportunity Policy for transgender persons.
Further, the draft rules mandate to appoint a complaint officer in every establishment. “The National Council shall be responsible for coordination with the National Council on matters of monitoring, review and evaluation of transgender welfare and protection of rights at the State and local levels”, the rules say.
Parliament had passed the Transgender Persons (Protection of Rights) Act, 2019 on November 11, 2019.