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Gender Self Identification concept explained – Transgender Persons (Protection of Rights) Act 2019

Gender Self Identification concept explained – Transgender Persons (Protection of Rights) Act 2019

Relevance:

  • GS 2 || Governance & Social Justice || Vulnerable Sections || Sexual Minorities

Why in news?

Spanish Cabinet approves draft bill extending LGBTI rights

Present Context:

  • Spanish Cabinet approves draft bill extending LGBTI rights that also bans conversion therapies, makes it easier for lesbian couples to register as co-parents and gives Trans people access to assisted reproduction.

Spain take giant steps:

  • The Spanish government approved the first draft of a bill that would allow anyone over the age of 14 to legally change gender without a medical diagnosis or hormone therapy, its Equality Ministry said.
  • The bill will now go to a public hearing, and will then come for a second reading in the national cabinet. To become law, it then has to be approved by the lower house of the Spanish parliament.
  • Currently, for someone to change their gender in official records, the law first requires two years of hormone therapy and a psychological evaluation. The proposed law will remove these requirements for everyone above 14 years of age. Those between 14 and 16, however, would require parental approval.

Arguments in Favor of draft bill:

  • Preferred gender is not easy task:The present procedures for declaring one’s preferred gender are time-consuming, costly, and humiliating.
  • Trans individuals suffer prejudice on a daily basis, therefore it’s critical that efforts be done to combat it and offer the resources and support that they require.
  • Gender identity is natural aspect of a person:Gender identity is viewed as a natural aspect of a person that may or may not require surgical or hormonal treatment or therapy, and all people must be able to make decisions that impact their own bodily integrity and physical autonomy.

Arguments again draft bill:

  • Violation of right:Gender self-identification goes well beyond people’s rights to believe what they want, to dress, act, and express themselves in whichever way they desire.
  • Political and social demand:This is a political and social demand that affects everyone, but particularly women, homosexuals, and transsexuals.
  • The medicalization of gender identity has offered legal recognition and transition-related healthcare to some members of the Trans community.

Protest again draft bill:

  • Feminist groups that think that sex is not something that can be chosen have warned that permitting self-identification may jeopardize all legislation aimed at preventing discrimination against women, and have instead encouraged politicians to focus on more important issues such as the gender pay gap.
  • Even in Spain, where feminist groups are protesting against the proposed law, President Pedro Sánchez has maintained the need to “safeguard the balance of women’s rights and of a group as punished as the Trans people.

What is gender self-identification?

  • Self-identification, sometimes known as “self-id,” is the idea that a person should be able to legally identify with the gender of their choosing merely by proclaiming it, without having to undergo any medical testing.
  • As discrimination against Trans persons persists across the world, including in India, this has been a long-standing demand of trans-rights organizations.
  • While some think that the present methods for declaring one’s chosen gender are slow, costly, and demeaning, feminist and gay-rights organizations argue that such a law would put women in danger and encourage more homosexual teens to seek hormones and surgery.

15 countries around the world already recognize self-ID:

  • Denmark, Portugal, Norway, Malta, Argentina, Ireland, Luxembourg, Greece, Costa Rica, Mexico (only in Mexico City), Brazil, Colombia, Ecuador and Uruguay and now Spain.
  • A newly enacted law in Hungary essentially outlaws all information regarding homosexuality and gender transition from school curricula and television broadcasts for minors under the age of 18.

Process for declaring one’s desired sex in India?

  • In India, the rights of transgender persons are governed by the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
  • Under the Rules, an application to declare gender is to be made to the District Magistrate. Parents can also make an application on behalf of their child.

Understanding Trans rule in India:

  • The Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020 govern transgender people’s rights in India.
    • An application to declare gender must be submitted to the District Magistrate under the Rules. Parents can also submit an application on their child’s behalf.
    • For processes involving the issuance of a certificate of identity/gender change, there will be no medical or physical examination.
  • The Supreme Court recognized transgender individuals to be a “third gender” in the 2014 case National Legal Services Authority (NALSA) v. Union of India.
    • The Court construed Article 21 of the Constitution’s definition of “dignity” to encompass variety in self-expression as allowing a person to live a dignified life. It enshrined one’s gender identification within the scope of Article 21’s basic right to dignity.
    • It further said that the right to equality (Article 14 of the Constitution) as well as freedom of expression (Article 19(1) (a)) were violated.
  • The Supreme Court decriminalized same-sex partnerships in 2018. (Read down the Provisions of Section 377 of the Indian Penal Code).

Way forward:

  • An earlier draft of laws, which was widely panned, forced transgender people to undergo a medical checkup before announcing their chosen sex.
  • This requirement was removed from the final Rules, which state that the District Magistrate will “get the application processed based on the affidavit submitted declaring the gender identity of any person, without any medical or physical examination, subject to the correctness of the applicant’s particulars”, After that, the applicant will be given an identifying number, which may be used as proof of application.

Mains oriented question:

What are the issues that transgender people face in India? Discuss the legal options for dealing with these concerns. (200 words)