Missing ‘Rights’ in the Transgender Persons Bill

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The Bill is riddled with myriad issues, primarily rooted within the very fulcrum of the act- the scope of definition of transgender.

While the Lok Sabha and the Rajya Sabha are nearing a complete washout of the Parliamentary Budget Session 2018, once again the hopes of the transgender community in India for a redressal of their issues were crushed by continuous parliament disruptions. In the wake of a transgender person being barred from entering a public mall in Pune, the need of the Transgender Persons (Protection of Rights) Bill 2016 is more pressing than ever.

In another case, a transgender person’s body found near a dustbin was denied to be handed over to people of their community as the police claimed that only biological parents or ‘blood relations’ had the authority to do so. These are just two incidents out of many that reek of nothing, but rampant humiliation, oppression, and harassment this section faces in the hands of shameful ignorance of the society and gross negligence of the state.

Kalki Subramaniam (C) with members of Sahodari

Presumably, the legislation were to draw its blueprint from the landmark NALSA (National Legal Services Authority)  judgment of the Supreme Court in February 2014, paving way to enshrine the rights of transgender in law. The spirit of the judgment was clearly reflected in the words of Justice K.S. Radhakrishnan, Supreme Court, who said, “Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender Community undergo…..moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset we need to change.”

Following the cannons laid out in the NALSA judgment, MP Tiruchi Silva had piloted The Rights of Transgender Bill, 2014 which was introduced and passed in the Rajya Sabha as a historic Private Member’s Bill. After much delay, the government came out with its own version of the bill, in the form of massively diluted Transgender Persons (Protection of Rights) Bill, 2016 showing a serious lack of understanding of the community and its concerns, which if passed would thwart all the progress the community has made through years of struggle.

“There is no clarity of definition. They have conflated the definition of a hijra, eunuch and a transgender and have not tried to acknowledge the difference in those terms. Also, there is no place for trans-men in the bill.” -Anjali Gopalan, Founder-The Naz Foundation

The present Bill attempts to define a transgender person as: a person who is (i) neither wholly female nor wholly male; or (ii) a combination of female or male; or (iii) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

Thus, the current Bill completely eliminates the option of identification as either male or female. To top it all, the Bill also reinforces injurious stereotypes about transgender persons as being part male and part female, which also fails to protect those who wish to traverse identification through male- female binary and be defined out of its scope.

Moreover, the Bill’s proposal of forming a district committee to ‘certify’ transgender persons is also a violation of the NALSA judgment which upheld the transgender person’s right to decide their self-identified gender. The very fact that medical, biological and mental assessments are being implemented for identification of a transgender person shows the lack of empathy and understanding in the legislation.

In another jolt to the community, the criminalisation of sex work, begging and other alternative forms of their ritualized occupation puts the community in grave risk of police and state violence.

“Direct criminalization of begging and sex work without providing us any affirmative action in the fields of employment, education and trans and intersex healthcare would only further endanger the most vulnerable trans community. We need reservation, without that we cannot be empowered.”  Kalki Subramaniam, Founder- Sahodari Foundation

Notably, in the current Bill there is no provision for reservation of the trans community. Moreover, the definitions of family, provisions for healthcare, and measures to protect trans people from violence and discrimination are also either completely absent or faulty. The Bill does not properly define ‘discrimination’ against transgender persons, and thereby, no proper criminal action is guaranteed against those who discriminate against transgender persons.

The removal of the clauses which provided for the setting up of National and State Transgender Welfare Commissions is another incapacitating deletion.

Further, it avoids discussing the pertinent issues including the right to marriage, inheritance and adoption among others. Despite many recommendations and submissions by various trans groups to the Parliamentary Standing Committee on Social Justice, the release of the 43 report found that although the recommendations were taken into consideration, the committee backtracked on its recommendations, thus, diluting them.

Despite the non-consideration of these recommendations and inadequacy that plagues the contentious Bill, it is expected to be tabled in its original form in the parliament. However, addressing the transgender persons rights with more empathy and understanding the nature of the contentions being voiced by the marginalised community would ultimately contribute in their empowerment and inclusiveness. A concerted effort needs to be made to prevent this bill from being hollow, draconian and a travesty of all its avowed objectives.