Women and Transgender Issues

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Women

Bodies, Institutions, etc

National Commission for Women

The National Commission for Women (NCW) is a statutory body, generally concerned with advising the government on all policy matters affecting women. It was established in January 1992 under the provisions of the 1990 National Commission for Women Act (applicable in entire India except J&K).

Constitution:

  • Chairperson to be nominated by central government
  • 5 members to be nominated by central govt based on the relevant experience (condition one from SC and one from ST).
  • a Member-Secretary to be nominated by the Central Government who shall be
    • an expert in the field of management, organisational structure or sociological movement, or
    • an officer who is a member of a civil service of the Union or of an all-India service or holds a civil post under the Union with appropriate experience

Members and Chairperson can be removed by central govt.

Functions:

  • review the Constitutional and Legal safeguards for women ;
  • recommend remedial legislative measures ;
  • facilitate redressal of grievances and
  • advise the Government on all policy matters affecting women.
  • Shall have all the powers of a civil Court while trying a suit mentioned under particular section.(so is Quasi-judicial)

Education – one area to cheer

  • GER of girls is equal to or higher than boys at all levels. Even in higher education GER of girls is 26.4%, marginally higher than 26.3% for boys. Sadly, this is not translating into workforce participation.

Labor Force Participation

Data

  • Worker to Population Ration (WPR) for rural women (15 yrs+) has dropped from 49% in 2004-05 to 35% in 2011-12 to 24% in 2017-18. For urban women the decline is relatively smaller from 23% in 2004-05 to 18% in 2017-18.
    • For poorest decile in rural areas too the WPR declined from 31% to 16% in 2004-05 to 2017-18 period. Thus increasing household income is not the direct cause.
    • Among men also there is a decline from 56% to 40%. Thus, all this is due to land fragmentation, rising population and consequent low availability of farm work.
    • And in this scenario while men have been able to partially find alternate work, women have not. Truck driver, mechanic, etc segments are difficult for women to be in.

Reasons

  • Few national policies focus on providing support services like lodging, safe and convenient travel, childcare, etc to enable women to be part of workforce.
  • Competing responsibilities at home and work: (1) increase income of husband, child-birth, etc lead to withdrawal, (2) perceived productivity at home is considered higher than workplace, (3) social stigma attached to women working outside, etc.
  • Maternity Benefit Act, 2016 has led to estimated loss of female jobs between 1.1-1.8 million for 2017-18.
  • Migration -> Ravenstein: male migrate more and for longer distances. (This is because women face more barriers to migration)
  • Gendering of occupations often leads to women having little choice. Wage gap, unwritten contracts, power asymmetry are more accentuated for female workers.
  • According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013.

Way ahead

  • Incentivise hiring: companies should be given incentives for hiring female employees like tax breaks.
  • Lower income tax rates for women. This will also be a recognition of the direct impact of women’s income on wellbeing of children and family.
  • Behavior change: (1) breaking gender stereotypes, (2) redefining role of men in households, etc.

Quest for equality

  • Sabrimala judgement and temple entry movement
    • Indian Young Lawyers Association v. State of Kerala, 2018
    • The Tantri purified the sanctum sanctorum after two women entered the temple. But SC had held in the same judgement that any practice built on the notion of purity and pollution amounts to untouchability.
    • However, the SC judgement is like a mandamus to a particular religious community that it can’t hold certain belief.
  • The Constitution (108th Amendment) Bill
    • Passed by RS in 2010 but stuck in LS since
    • Representation of women in Parliament is only 12% compared to >40% in local bodies
    • Solution in some other countries: (1) ‘Zipper system’ of Sweden as a voluntary quota system in which women and men are placed alternatively on all party lists, (2) 33% reservation in Nepal.
  • Representation in armed forces
    • 4%, 6% and 13% is the representation of women in army, navy and air force respectively.
    • Air Force is the only force to have inducted women in combat role.

Fight against injustice

Laws

  • The Protection of Women from Domestic Violence Act (DV Act)
    • Applies to all women living under the roof and not just wives (thus mother, grandmother, sister, live-in partner, etc also included).
    • Provides for protection, compensation, maintenance as well as right to secure housing.
    • Covers not only physical but also verbal, emotional, sexual and economic violence.
    • SC has struck down “adult male” from the Act broadening its scope. It has also extended the safeguard so as to apply it even after divorce.
    • Issues: not gender neutral; doesn’t cover marital rape; low awareness; male dominated police and judiciary; lack of counselors, etc.
    • Data: As per NFHS-4 every third woman, since the age of 15, has faced domestic violence of various forms.
  • The Dowry Prohibition Act: fine of ₹5,000 and/or imprisonment up to 6 months for giving, taking or even demanding dowry.
  • Section 498A of the IPC dealing with a wife being subjected to cruelty by her husband or his relatives.
  • The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
  • The Registration of Marriage of NRI Bill, 2019 mandates registration of marriage of an NRI with another NRI or a citizen of India within 30 days of the marriage. His/her passport may be impounded in case of non-registration. The Court has also been empowered to send summons and issue arrest warrants on a website designated by MEA if summons couldn’t be sent otherwise.
  • The Muslim Women (Protection of Rights on Marriage) Bill, 2019
    • Triple talaq/talaq-e-biddat resulting in instant and irrevocable divorce has been declared illegal and void in any form, including written or electronic.
    • Cognizable: Triple talaq is a cognizable offence with up to 3 years imprisonment and fine (but cognizable only if complaint comes from woman directly or her relatives by blood or marriage).
    • Bailable, but bail by magistrate only after hearing the woman.
    • Compoundable, but can be compounded only upon the request of the woman.
    • Woman can seek subsistence allowance from her husband for herself and her dependent children. Also entitled to seek custody of her minor children.
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Others

  • Nari Shakti Puraskar given to imminent women and institutions working for the cause of women.

#MeToo (against sexual harassment at workplaces)

  • Vishakha guidelines (Vishakha v. State of Rajasthan, 1997)
    • Bhanwari Devi who prevented child marriage as a worker of the Women Development Programme was raped
    • International conventions were incorporated as part of the guidelines
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
    • Defines sexual harassment at the workplace and creates mechanism for redressal of complaints
    • Sexual harassment includes physical contact and advances, a demand or request for sexual favors, making sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
    • Circumstances construed as sexual harassment:
      • implied or explicit promise of preferential/detrimental treatment or present or future employment status
      • interference with her work or creating an intimidating working environment for her
      • humiliating treatment likely to affect her health or safety
    • The scope of the Act is wide covering all women in public/private, organised/unorganised sector, etc. Even non-traditional workplaces like tele-commuting are covered. Students, patients, etc also covered.
    • Mandatory Internal Complaints Committee (ICC) at each office with 10 or more employees and Local Complaints Committee (LCC) at district level for workplaces that do not have ICC. The complaints committees have the powers of civil court. The inquiries and action taken are to be time bound.
      • The Act also provides for conciliation by ICC/LCC before inquiry but monetary settlement cannot be its basis.
      • They also have to prepare an annual report. In case of LCC the District Officer will forward the same to State government.
    • ICC to comprise of a senior woman employer as presiding officer, at least 2 members from employees that are committed to the cause of women or have experience of social work or have legal knowledge and a member from NGO relating to women’s cause. At least half of members to be women.
    • Employers to conduct education and sensitisation programme and develop policies against sexual harassment.
    • Also provides for action against false and malicious complaints. But it has to be established that it is malicious after an inquiry.
    • Duties of employer:
      • Providing safe working environment
      • Displaying prominently the penal consequences of sexual harassment
      • Organise workshops and awareness programme for the Act
      • Facility to ICC/LCC in dealing with complaints
      • Initiate misconduct under service rules
      • Take action under IPC/other law if the perpetrator is not an employee at the workplace
    • Rules made by Central govt for the Act are to be laid before each House and they can modify the rules within 30 days of being placed.
    • Issues:
      • According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013.
      • The Act does not cover men. Dual impact: (1) men left out and (2) men perceive the Act to be biased.
      • The Act is non-cognizable. And no court can take cognizance unless the complaint is by aggrieved woman or any person authorized on her behalf by ICC/LCC.
  • What is different this time around?
    • Men, at least some, are responding. Many expelled from work, some have declined to work with the accused, etc. (the dilemma that they are accused vs that people in the industry do know the reputation)
    • Women are coming out against those in power in unprecedented numbers
    • There is higher support from wider population and less demonization of victims
  • Way ahead
    • Complaints committee in political parties to show the way. Similarly, the same is needed in all police departments.
    • J&K became the first state to have a law against sexual extortion by superiors and public officials. Other states should replicate this.
    • Swayangsiddha scheme of WB: complaint box in all girls’ schools to report cases of stalking or harassment faced by them or anyone known to them.
    • Women also have to ensure that false complaints are not filed and the sanctity of the movement is maintained. Former Bombay HC CJ Sujata Manohar (a member of bench that penned Vishakha guidelines) has observed that many women had taken the route of the movement to settle personal scores.
  • A Group of Ministers has been formed, led by the Home Minister, to decide on the changes needed in the sexual harassment law.
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Systemic discrimination

Family laws

  • Age of consent for marriage is 18 yrs for girls and 21 for boys thus perpetuating the stereotype that wives should be younger than the husband.
  • Guardians and Wards Act, 1980 regards husband as the guardian of wife and the children.

Condition of teenage girls (report by Nandi Foundation)

  • While 92% girls are studying at the age of 13, only 66% are studying at the age of 19.
  • Every second teenage girl in India is using unhygienic methods of menstrual protection; 52% of teenage girls suffer from anaemia.

Workforce participation and workplace

  • Globally, as per ILO, while 22% of women engage in unpaid full time caregiving, only 1.5% of men engaged in that. This was the mains reason behind the contrast – while 70% of women wanted to work only 45% were part of labor force (Report name: ‘A Quantum Leap for Gender Equality: For a Better Future for Work for All’).
  • India is ranked 108th on Global Gender Gap Report by WEF. The report encompasses four themes – economic participation, educational attainment, health & survival, and political empowerment.

Examples and case studies

Good examples/case studies

  • Kudumbashree Mission: Poverty eradication through women empowerment
    • Mahila Mall in Kozhikode
  • One-stop centers opened by the govt under Nirbhaya Fund have helped 2 lakh women facing physical, sexual and emotional abuse. UP alone accounts for 1.2 lakh as it is the only state that offers tele-counselling service from all its one stop centers. Others should follow suit.
  • Safe City Project launched in 8 cities; Emergency Response Support System (dial 112), that includes contribution from volunteers as well, started in Himachal Pradesh and Nagaland; Location Tracking and Emergency Buttons made mandatory in all new public service vehicles.
  • Sanitary pad vending machines have been installed in Telangana schools.
  • 60% of children adopted in India in 2015-18 are girls. However, the number of female children put up for adoption is also much higher than that of male children.
  • Shreeja Mahila Milk Producer Company based in Tirupati
    • World’s largest dairy exclusively owned by women with a participation of 83,000 women. Every supplier is a shareholder.
    • There are always at least 11 women on a board of 15 members.
    • The payment gets deposited every 15 days in the bank accounts of the women.
    • The company also trains women regularly, works with local veterinary officers and holds deworming camps. Insurance for women and cattle are also provided.
  • Conditional cash transfer scheme Kanyashree of West Bengal to promote education among young girls.
  • India BPO Promotion Scheme: Apart from promoting spread of BPOs in tier 2 and 3 cities, the scheme is now also promoting work from home jobs so as to create more jobs conducive for women.
  • Three women were inducted as fighter pilots in 2016. Bhawana Kanth, one of the three, is from BR.
  • Programmes for women in science: Women Scientist Scheme, KIRAN, CURIE, Women Technology Park, UDAAN, Indo-US Fellowship for Women in STEMM, BioCare, etc.
  • Rural women held march in Bengaluru to fight against liquor sale and consumption.
  • Period. End of Sentence. Kathi Khera village in Ghaziabad is experiencing changes due to a handful of women manufacturing menstruation pads branded as ‘Fly’ which was showcased in the movie.
  • Male personnel of central govt who are single parents can now avail a child care leave of 730 days throughout their career service – a provision meant only for female single parents earlier. Such recognition of role of men in household can encourage more women to come out and work.
  • Women Entrepreneurship Platform by NITI Aayog as a one stop resource center for future and budding women entrepreneurs.

Bad examples/case studies

  • Swadhar Griha run by govt, Shelter homes run by NGOs, etc all in poor conditions.
  • In a UN conducted survey on sexual harassment among its employees, only 17% of employees responded. In the survey one in three women workers reported being sexually harassed in the last two years.
  • Unnao rape case by a BJP MLA: Father of the victim arrested and died in custody, uncle arrested, mother and aunt died in an accident and the victim herself critically injured in the same.
  • 50 girl students of Kasturba Gandhi Balika Vidyalaya, Supaul were beaten by locals for resisting eve teasing. (KGBVs provide residential educational facilities to girls belonging to SC, ST, minority communities and BPL families.)

Transgenders

Bills/laws

The Trandgender Persons (Protection of Rights) Bill, 2019

  • Background:
    • In NALSA v Union of India, 2014 SC acknowledged transgenders as 3rd gender and recognized their most basic human right, i.e., right to decide their gender identity. In addition it also recognized the following rights:
      • Right to have a family by marrying each-other, adopting children
      • Right to inherit property
      • Right to claim a formal identity through passport, ration card, etc
      • Right to be included in the mainstream of the society
    • It also directed the State to take special measures to devise welfare schemes, recognise them as SEBCs for admission and recruitment and provide access to healthcare, housing, etc.
    • In Ram Singh and Others v Union of India, 2015 the SC held that new emerging groups such as transgenders must be identified for quota benefits.
    • Mr. Tiruchi Siva had introduced a private member’s Bill in 2014 in RS which was passed unanimously in RS.
  • Highlights of the Bill:
    • “Transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone sex reassigning medical procedure), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
    • Section 7 says DM will issue the certificate of identity as approved by the Screening Committee. But section 4 says such a person shall have a right to self perceived gender identity => contradictory in itself. Even SC in NALSA case has considered right to decide own’s gender a FR under article 21. However, the definition is quite broad.
    • The certificate can be revised in case of sex change by producing a statement from the doctor who conducted the procedure.
    • Obtaining certificate of identity is must to enforce rights => to ensure that Act is not misused. But it may also create hurdles.
    • Prohibits discrimination in education, employment, etc by persons as well as establishments. Every establishment has to have a complaint officer.
    • Directs central and state govts to devise welfare schemes including vocational training and self employment.
    • Central and state govt to take steps to provide medical facilities: HIV related, sex change surgery, insurance scheme, hormonal therapy and even change in medical curriculum.
    • Offences like compelling a transgender person to beg, denial of sccess to physical places, physical and sexual abuse, etc will invite jail term.
    • National Council for Transgender Persons: To advise central govt on policies and legislations as well as evaluate the same. It will also redress the grievances of the transgender persons. Will include members from MoSJ&E, MoH&FW, MoMA, NITI Aayog, Transgenders persons, NHRC, NCW, experts, etc.
  • Concerns:
    • Definition can be widened. WHO identifies all persons with a ‘sense’ of gender different from theirs as transgenders.
    • Going through screening committee violates the Right to Privacy of people, a FR.
    • Many laws in India continue to recognise only men and women. e.g. Hindu Marriage Act, Hindu Succession Act, IPC, etc. For example, the rape laws are only for women.
    • Reservation under SEBC category has not been provided; private member bill of 2014 had provided for 2% reservation
    • No mechanism of appeal in case of denial of certificate of identity
    • Definition of family: it means a group of people related by blood or marriage or by adoption. This should be broadened to include hijra pariwar as well.
  • Way ahead:
    • Any social legislation also requires awareness, sensitisation, etc to make it operative.
    • The Bill is inclined towards welfarism while NALSA judgement was couched in rights language. A move towards rights must be made.
    • Definition of transgenders should be broadened gradually. Also, the need for screening can be gradually done away with by empowering the community itself to report misuse of welfare schemes and screening committees can come in picture.
    • Amend other laws to make them gender neutral.
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Court cases

  • Arun Kumar and Sreeja v Inspector General of Registrar, 2019: Madras HC has held that the term ‘bride’ in the Hindu Marriage Act, 1955 has to be seen in the contemporary and a marriage of a transgender is thus equally valid under the Act.
  • Navtej Singh Johar v UoI, 2018: Parts of section 377 of IPC were declared unconstitutional.
  • NALSA v UoI, 2014: Transgender persons have the right to decide their self-identified gender. Civil rights such as marriage, succession, inheritance, adoption, right to raise a family, etc apply to all of them.

Miscellaneous

  • DCW has set up a transgenders’ grievance committee to address complaints of violence and harassment.
  • Good examples:
    • TN provides education, identity cards, subsidized food and free housing.
    • WB, MH, CHH, KA and TN have set up Transgender Welfare Boards.
    • Kerala has brought a State Policy for Transgenders to provide them with the right to live with dignity.