Policies for Trans and Queer People based on Constitutional Rights and Legislations in India

Formation of Policies in India

Policies are formulated based on laws, regulations, directives and budget allocation by State and Central government. They can be changed as per the assessments of benefit and impact they make. It includes development, execution, assessment of the effectiveness of the policy. Following image gives an overview of the process of policy formation. This process is not exhaustive since they are many a times comes from Supreme Court or High Court’s order. Although there is no step that presents the role of external members including civil society, specialists or stakeholders benefitted or impacted by it; there is influence based on policy advocacy that brings favorable outcome.

Legislations and Policies are derived from similar process except where policy is a result of a law or law being derived from policies. There is no one way for policy or law to be formed however, the basis remains Constitution of India and its interpretation by the Supreme or High Courts. For instance, looking at the history, the first bill on Rights of Transgender Persons was passed in 2015 after NALSA judgement in 2014 for the legal recognition of people with non-binary gender identities. Another example can be taken from the case of Bhawari Devi who faced sexual violence while fulfilling her work responsibility. This followed Vishakha Guidelines that later was passed as an Act to prevent workplace harassment. The guidelines paved way for workplace regulations to be gender affirmative and does not only see cis women as a vulnerable group.

Policies by Central Government

• National Council for Transgender Persons: Under Section 16 of the Transgender Persons (Protection of Rights) Act, 2019, National Council for Transgender Persons was formed by Ministry of Social Justice and Empowerment. Some of the functions to be performed by the National Council includes:

• Monitoring and evaluation of policies and programmes for the achievement of equality and participation of transgender persons;
• Review and coordinate activities of all government and non-governmental departments and organisations working on matters related to transgender persons;
• Advice Central government on formation of policies, programmes, legislations and projects for transgender persons;
• Redress grievances of transgender persons;

Stakeholders

Apart from Ministry of Social Justice and Empowerment, there are representatives from related Ministries and Departments and five representatives from Transgender community, representatives of National Human Rights Commission and National Commission for Women, representatives from State Governments and Union Territories and experts representing Non-Government Organisations. 

Challenges

• The Council does not represent diverse transgender community, only comprising five transgender people.
• It has limited powers for the implementation of welfare policies. It can only make recommendations which are not always accepted.
• There is inadequacy of funding by Central Government.
• It does not have adequate data on transgender population in India causing challenge to the formation and implementation of policies. 

Options for Mitigation

• There is need for continuous advocacy to have active role of people from transgender community not only as individuals but also as NGOs. 
• There is existing stigma causing many transgender people to feel safe to come out and avail policies, therefore ensuring that support is received while ensuring safety and confidentiality.
• There is an active need to follow up on funds granted and their use benefitting people from transgender community. 

SMILE Scheme:

Support for Marginalised Individuals for Livelihood and Enterprise (SMILE) is an umbrella scheme comprising of welfare measures of transgender people and rehabilitation of persons engaged into begging. These two schemes are linked with the support of State Government/ Union Territories/ Local Urban Bodies like Municipal Corporation, Community Based Organisations etc. Following are support provided under the Schemes:

• Application for TG Certificate and ID Card
• Scholarships to students who are Transgender studying in class IX and above till post-graduation.
• Short term and long term training programmes
• Health Insurance to improve their health conditions including gender affirmative surgeries and medical support.
• Gramin Greh with amenities like shelter, food, medical care and recreation facilities. This also include providing support for capacity building and skill development.
• Recognition and Appreciation for the applicants completing their courses. 

Challenges

• There continues to be systemic challenges to apply for the TG certificate along with changing name and gender in the identity cards including Aadhar Card, Passport, Election Id, Driving License and any other Id that exists for providing benefits for food, educational institution etc. 
• The rehabilitation framework is colonial in nature with forced rehabilitation practice, skill building without guarantee of jobs, lack of integration within economy.
• The Scheme does not specifically focus transgender people alienating them from other schemes related to education, healthcare, employment, housing, violence and discrimination mitigation and political representation.
• Complaints coming from Garima Greh for non-dispersal of funds. 
• No comprehensive plan for identifying and mitigating homophobia and transphobia within education system and its culture. 
• The Scheme is wide; overlapping government schemes that can cause funds for the benefit of transgender people be used for schemes with allocated funds. For example: Skill Development Scheme is an ongoing programme which will assimilate skill development for transgender people.

Options for Mitigation

• While getting TG Certificate and Identity Card are a challenge for many transgender people, the queries can be raised at district and state level bringing into light the reasons causing delay or refusals.
• The rehabilitation work under the umbrella scheme is not a long-term solution and involvement of representatives from transgender community is relevant for making the scheme accessible.
• The alienation of transgender community from the second part of the scheme can be prevented by advocating for benefits such as education, healthcare, employment, housing, violence and discrimination mitigation and political representation be available.
• Advocacy for ensuring relevant funds during the financial dispersal for schemes.
• Comprehensive Sexuality Education in educational institutions for assimilation of the transgender community.
• To work with local bodies to ensure accessibility to Garima Greh for all queer and transgender people.

Policies by State Government

Sweekruti

A Scheme for Promotion of Transgender Equality and Justice by Social Security and Empowerment of Persons with Disabilities (SSEPD) Department, Government of Odisha plans to:

1. Conduct survey and identification of all transgender persons in the State and issue of certificates, multipurpose smart cards, etc. 
2. Assistance to parents of transgender children and provisions of pre and post-matric scholarship for all transgender children pursuing education. This further includes counseling and other mental health services that affirm child’s gender identity for the child and parents. 
3. Skill upgradation and entrepreneurship development training, supply of self-employment kitand strengthening Self Help Groups.  
4. Support for critical healthcare and group insurance support for transgender persons. 
5. Provisions for legal aid and advice, counseling and guidance services for transgender persons in distress.
6. Organisation of community awareness, sensitization and campaign on rights of transgender persons and training of staff and volunteers.

Challenges

• As the TG Act gives the right to biological family to decide for the Identification of child, the stigma very much perpetuates for biological parents to be supportive of child’s identity. 
• To receive financial aid, parents will certify on an affidavit to give in writing the ‘behaviors’ and anyone below the age of 18 years cannot make a decision for themselves.
• A transgender person cannot access skill building without having the certificate.
• Although, convergence of government schemes is expected – the allocation of funds for the necessary benefit remains a challenge.

Options for Mitigation

• Have community participation for the survey ensuring confidentiality of transgender people who prefers that.
• When transgender children are not getting relevant support from parents or face violence, Child Welfare Committee should intervene and have well trusted person for the child to be guardian to consent for affidavit and certificate.
• Advocacy for skill building and educational financial support for transgender people only after certification to be non-mandatory for all transgender people can access it.
• Documentation and monitoring of allocated funds.

State Policy for Transgenders in Kerala, 2015

Kerala is the first State that came up with the policy for transgender people in the State. This came in response to the NALSA Judgement and emphasis on the right of Transgender people for self-identification. Some of the relevant strategies adopted by the State, monitored and oversee by Transgender Justice Board, are mentioned below:

1. Barrier free access to education, public transportation, health, social security and other services by service providing bodies.
2. To address stigma, discrimination and violence faced by Transgender people by ensuring awareness of the employees and contractors within law department, police and justice officials.
3. Statutory requirements such as free legal aid, compiling statistics of crime against transgender persons, formation of helpline and crisis management by Social Justice Department and action against parents deserting or abusing gender non-conforming children, conversion therapy, gender based violence.
4. Juvenile Justice Act to address concerns of children who are gender non-conforming, action against delinquent police officials violating human rights of transgender children and establishment of anti-discrimination cell in educational institutions.
5. Ensuring right to transgender people regarding marriage, partnership, living relationships and parenting. 
6. Availability of self-employment grants, anti-discrimination policies for the purpose of hiring, retention, promotion and employee benefit schemes and making workplace sexual harassment policies inclusive of transgender people. 
7. Health insurance under Rashtriya Swasthya Bima Yojana, benefits for SHGs or Societies of Transgender people under Comprehensive Health Insurance Scheme (CHIS), establishment of funds for Gender Affirmative Surgery in government health facility, non-discriminatory healthcare and separate sero-surveillance centres for transgender people. 
8. Ensure equitable rights in public decision making bodies, shelter homes in different parts of the State exclusively for transgender people and benefit under Indira Awaas Yojana for housing.
9. Monthly pension for destitute transgender persons.
10. Ration Cards under Public Distribution System for subsidy.
11. Setting aside equitable amount of funds for addressing issues of transgender people, grant windows for NGOs working with transgender people implementing schemes and programmes.

Challenge

• The implementation of the policy continues to be a challenge due to negligence  on  the  part  of  the  officials,  insufficient  budgetary  allocation  for  the schemes  and  welfare  measures and  inadequate  financial  support  from  the  centre.
• The policy doesn’t elaborate on who is considered as a destitute transgender person to avail the benefit.
• Lack of information provided to the transgender people for the purpose of availing benefit under the policy. 

Options for Mitigation

• Meetings  of  the  State  and  District  Transgender Justice  Committees  held  at  least  once  in  a  month  to  facilitate  the  effective implementation  of  the  policy  and  to  know  whether  it’s  equitably  distributed.
• More education and employment schemes are to be introduced.

State Transgender Policy, Madhya Pradesh 2020

The policy is framed based on 2019 Act. There are similar strategies as suggested through central government scheme. Few additions that were observed include:

• Amendment in law for child adoption and rendering care as a single parent.
• ‘Gender’ to be included as a subject in educational curriculum.
• Mass congregation for the marriages of transgender people be promoted.
• Need based rental housing to be encouraged at affordable prices in sync with the National Urban Rental Housing Policy 2015, mentioned in Real Estate Policy for Madhya Pradesh 2019.
• There are State and District Trangender Welfare Board as per the Act.

Transgender Welfare Board in Tamil Nadu

Social Welfare and Women Empowerment Department of Tamil Nadu formulate Transgender Welfare Policy to ensure access to free gender affirmation surgeries in government hospital, free housing, preparing citizenship documents, admission in government colleges with` a full scholarship for the higher studies and income generation programmes. There is a mobile app called Moonram Paal to access identity documents, recent government orders or other information from the Board. There is a supposedly a policy document based on which the Board was formed whereas in 2022, Tamil Nadu government informed Madras High Court that it is in the process of finalising the policy.

Karnataka, State and Chandigarh, Union Territory have formed State Welfare Board for Transgender People.

About the Author: Abhiti

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