15th April 2014 marked the day of the NALSA vs Union of India judgment which stated that transgender persons have the right to self-identification (can identify as transgender or male/female that is within the binary). It is rightly marked as a ‘Gender Justice Day’. The judgment albeit with its flaws, paved the way for a legal rights-based space for negotiations between transgender persons and the State.
Subsequently a private members’ bill introduced by Tiruchi Siva, passed in the Rajya Sabha which had some progressive provisions. Later, the government presented its own version of the bill in 2016, followed by the one in 2018 and finally the current version in 2019. Each of these bills are examples of how transgender persons’ rights have been thought about & a study in itself as to how they changed in this country.
While the 2019 bill was supposed to be introduced in the Parliament, almost every day was marked with several transgender persons from across the country, including me, tuning into social media and television or checking up with friends with nervousness. Until it was tabled, there was no clarity as to what bill and which version of it shall be introduced. It was not made available to the very people whose rights it seeks to protect.
The entire process gave away a sense of opaqueness characterized by either lesser time for public consultation or articulations of problems by transgender persons not bringing any substantive changes with each version. The bill was neither translated into all scheduled languages provided in the Constitution, whose Hindi version uses the term ‘Ubhayalingi’ which is a horrible translation for transgender persons.
Transgender communities historically face oppression from bureaucracy, police and social institutions while being denied access to employment as well as educational opportunities. It is in this context that this bill should be seen. It should address and rewrite histories & injustices of hierarchies and structures that have marginalized transgender, gender non-conforming and intersex persons & communities.
The Statement of objects and reasons states, “transgender community is one of the most marginalized communities in the country because they do not fit into the general categories of gender of male and female’’(emphasis added). This is symptomatic of the problems with the bill. It portrays of a picture of ‘othering’ transgender persons through a wrong stereotype that has for long persisted.
This stands in stark contrast to the definition of transgender persons under section 2(k), “transgender person means a person whose gender does not match with the gender assigned to that person at birth…” There is a lack of coherent understanding that underpins the bill. While the definition is certainly an improvement over earlier versions of the bill, a small but ignored difference is of the disappearance of the word ‘etc.’ as compared to the Tiruchi Siva bill. The bill also includes intersex persons under the definition of transgender persons, thereby violating their right to self-identify as well. The bill does not have any substantial provisions, including but not limited to banning sex-reassignment surgeries performed on intersex infants without their consent. A Madras High Court judgment recently noted that parents’ assent is not equal to the intersex child or person’s consent. The very same judgment noted that Transgender persons (those who identify within the binary, since the law is binary) can marry under the Hindu marriage bill. The bill does not take into account any of these legal developments having significant implications to trans & intersex people’s rights.
The bill also creates hierarchies within transgender persons by putting in a two-tier process of recognition by a district magistrate upon application. That is, a person shall be recognized only as a ‘transgender person’. Only upon undergoing Sex Reassignment surgery shall the person have the right to apply for a ‘revised certificate’ for identifying as a male or female, provided the District Magistrate is ‘satisfied’.
While it is an improvement over earlier versions which had problematic provisions for a ‘District Screening Committee’, it still puts in a bureaucratic process thereby violating the right to self-identification given by the Nalsa judgment. This also reinforces a certain ‘biological’ boxing of bodies & hence trying to fit trans folks within it. The bill also does not mention what happens in case a District Magistrate refuses to grant a certificate or revised certificate. No process for appeal or review exists under the bill.
It only provides for changing the ‘first name’ in the birth certificate, thereby reinforcing ties to birth families, caste & religion, while there are different rules applied to cisgender persons. The bill remains silent on abuse by families of birth. It does not recognize families by choice & structures within the socio-cultural identities of Hijras, Aravanis etc. This privileges cis heteronormative relationships thereby losing an opportunity to look beyond it while taking away the rights of transgender people. It is amply clear in Section 2(c) which defines family on those terms.
Also, a transgender person shall be put in a rehabilitation center by the court if a family is unable to take care of the person. This infantilizes transgender persons, & takes away their right to residence which is a fundamental right under the Constitution.
The bill lays down eight grounds for discrimination. However it neither attempts to define discrimination nor put in any penalties for discriminating against a trans person. Lack of strong anti-discrimination clauses dilutes the object of preventing it.
The only penalty clause in the bill for any kind of abuse (not discrimination) is in chapter VIII which provides for imprisonment not less than six months to two years. This is not in commensurate with terms in crimes committed against cisgender persons, especially cis women. It gives away lesser punishments & not proportional while also equating every abuse. While the 2019 bill has removed begging (after constant engagement by trans people with the Ministry as well as resistance), it certainly remains silent about provisions of the Indian Penal Code which are as binary as it gets. This prevents the registration of FIRs or complaints, even after the trans person comes forward despite the risk of violence & harassment by police as well as accused. No specific atrocities against trans people has been defined and penalized neither has it been specified that only women police shall handle a trans person (specific provisions exist for cis women).
Begging (compel or entice to ‘beg’) was removed because anti-begging provisions are often misused against transgender persons who have no option but to beg & communities whose traditional occupations have been begging, badhai-toli or maangti. As noted in two Delhi High Court judgments, anti-begging provisions as applicable to Delhi (except certain sections) were struck down.
Provisions for horizontal and vertical reservation for transgender people in educational institutions and employment opportunities has been a constant demand from transgender persons and communities. However, the bill obfuscates the question of reservation & affirmative action (the Nalsa judgment in a flawed but welcome decision classified transgender persons under socially & educationally backward classes).
There is no clarity as regards the ‘complaint officer’ under Section 11 which must be there to ensure equality, non-discrimination and a safe workplace. While the provisions relating to health have covered some ground, the implementation remains a critical area of concern.
Both in the erstwhile lapsed District Screening Committee (which was firmly opposed) & within the National Council under this bill, number of trans people continue to be lesser than government representatives thus making the process less inclusive of the communities as well as undemocratic. National & State level Trans Rights Commissions with a majority of Trans persons & substantive powers to independently enforce and impose punitive costs is needed in place of a Council to better address grievances, disputes, etc.
While an earlier version (2016) sought to allocate 15 crores under its financial memorandum, this bill (2019) allocates a meagre 1 crore under the same. Such a piecemeal amount of money to transgender persons and communities stymies the object of the legislation & shall hamper attempt at making any significant impact.
For years, trans communities and individuals have come out in protests, resistance and articulated their concerns and issues with the bill. It needs many changes, especially starting with its objectives & definitions if it has to achieve equality and stop marginalization of transgender persons by any measure. This cannot be achieved without active efforts at consultations which are open, representative & actual implementation of the outcomes of such engagements. Else it shall have a chilling effect on the voices & lives of trans people, just as mine. For in so many of these versions & drafts lie something of mine too: that I delayed opening up/coming out as a trans person, since I would have had to face a ‘screening committee’ (in the 2018 version) to ‘prove’ that I am a transgender person, something no cisgender person had to and will never have to.