Ahead of Winter Session, Spotlight on Controversial Transgender Rights Bill

NEW DELHI: With the winter session of Parliament scheduled to begin on November 18, trans people and their allies await the Rajya Sabha’s impending decision on the Transgender Persons (Protection of Rights) Bill 2019.

The Lok Sabha passed this government bill on August 5 —without the debate and discussion it warrants— on the same day that Article 370 guaranteeing Jammu and Kashmir’s constitutional autonomy was declared void.

Many have voiced their protest against the bill, calling August 5 ‘Gender Justice Murder Day’. These arguments received minimal press and public attention and the bill is expected to be passed by the Rajya Sabha. Dissenting views have disappeared from the headlines.

The arguments raised against the bill relate to its politics of identification, the certification process it proposes, its denial of affirmative action to the community, and the lenient penalties proposed for violent crimes against trans folk.

“While you acknowledge us as transgender people, we don’t have the right to get married, to adopt children. Those rights have not been included. You have given us an acknowledgement, but what you are asking us to do is live a life without human rights,” said Abhina Aher, transgender activist and associate director at the India HIV/AIDS Alliance.

The bill’s very name has been criticised. “I am really wondering what this title ‘protection’ means?” said Akkai Padmashali, transgender and social activist at the Ondede Organisation. “The government needs to ensure that people’s freedom is not curbed. It is not about protection. What we want is that society should be aware, it should be non-discriminatory, it should not stigmatise people based on their identity or professions.”

The bill has undergone several revisions since it was first tabled in 2016. That version proposed screening committees in each district that would “recognise” transgender persons. District magistrates would then certify them.

“If you are a female, do you have to prove it in court saying I am a female? If you are a male, do you have to prove it to the courts? Then why do I have to prove to a bunch of people who I am?” asked Aher.

Many saw such screenings and certificates as an infringement of the right to self-identification, and opposed the provision vehemently.

The revised bill makes no mention of District Screening Committees. However, it also does away with the District Social Welfare Officer who was required to be part of such committees. The presence of these officers, according to Aher, was meant to prevent people taking undue advantage of targeted welfare schemes, just as certification was meant only to provide an official document to those self-identifying as trans.   

“How will you provide welfare to transgender people? There is no organised body for this now,” Aher exclaimed. “There have to be District Welfare Committees, with transgender people in them, who will help facilitate the process.

“The government seems to be ignorant of the fact that Trangender Welfare Committees can work well, as proven by a number of good practices in Chhattisgarh, Kerala, Tamil Nadu and Karnataka,” she said.

The bill still proposes a certificate that district magistrates would issue. In doing so it appears to confuse sex with gender. If a certified transgender person undergoes sex reassignment surgery, it says, a chief medical officer or medical superintendent would have to confirm it, after which the individual would need to apply to the district magistrate for a revised certificate indicating the change in gender.

“But gender expression is self-expression, right? Why does the law have to decide this? I am declaring myself as a transgender person, I am willing to give it to you in writing that I am a transgender person. Then why do you need an official acknowledgement of that? Who are you to decide?” stated Aher.

The medical certificate requirement has met with vociferous protests. “A lot of trans people wouldn’t want to go through gender transition surgery. It’s about expression, nothing to do with cosmetic surgeries you perform upon the body. By inserting this clause into the system, you are actually forcing people to go through a surgical process that could be deadly and take their life,” Aher explained.

Medicalising gender without ensuring inclusivity in hospital care would aggravate the issue. Activists point out that most hospitals are ill-equipped to handle procedures such as vaginoplasty or breast implants, which can be important elements of gender expression.

The existing medical curriculum is also inadequate. The “binary board: male and female” in Aher’s words, the lack of reservations or other forms of affirmative action, and inadequate health support systems compound the problem of bias and ignorance.

Another provision that has come under criticism is the discriminatory penalty for committing physical, emotional, verbal, or sexual abuse against trans people. The revised bill prescribes a prison term for six months to two years. But similar offences against women can attract life imprisonment.

“Why discriminate based on the gender of the victim? Not only for transgenders, but for men as well. Just make them gender neutral laws which are stronger for everybody,” stated Aher.

The 2016 bill also sought to criminalise begging. But many observed that “badhai” and “bhiksha” have long been an important part of the culture —no different from religion— and are the means for most people in this stigmatised community to sustain themselves.

There were widespread protests, and begging finds no place in the current bill. But discrimination remains rampant. Many activists have argued for affirmative action in housing, employment and education to counter the exclusion and violence perpetrated by cis society.

“The bill is really dangerous,” Akkai Padmashali told The Citizen. “I definitely want to reject it. I am in favour of the Supreme Court’s 2014 NALSA judgment, which would be my bill because it says exactly what the community wants.”

That landmark judgment —in National Legal Services Authority vs Union of India— recognised transgender people as a “third gender” for the first time in India. It made medical examination unnecessary, giving trans people the same right to self-identification and privacy that cis people enjoy in law.

It also provided for affirmative action to ensure trans people’s access to basic services. It directed central and state governments to institute social welfare schemes for the community, declaring they were among the “socially and educationally backward classes” entitled to special provisions under Article 15 of the Constitution.

“I think there’s so much conflict between the NALSA judgment of the Supreme Court and the bill that will come before the Rajya Sabha,” Padmashali told The Citizen.

Activists are calling for another round of revisions to be made, one where members of the community are actually consulted.

The underrepresentation of trans people in the political system remains a major cause of concern. “If we talk about Rajya Sabha or Lok Sabha, who will talk about transgender issues, who understands over there? Nobody. Because we don’t have our representation sitting there,” said Aher.

“People who aren’t transgenders, debating about transgenders!” she laughed. “Isn’t it interesting?”

Padmashali concurred. “The government doesn’t know who transgender people are, what their issues are. It’s not about you getting your own convenient people to talk about the bill. What happens to the politics of the working class, of non-English speaking people?”

During the hurried discussion in the Lok Sabha preceding the passage of the bill, members displayed confusion about the differences between intersex and transgender persons. In the current bill the government makes the same mistake. It speaks about trangender and intersex people interchangeably, marking the two identities as synonymous.

“Initially, the bill drafted by the government was based on the Australian Intersex Bill. Intersex is not transgender. Intersex is a variation in sex characteristics present at birth. It has nothing to do with your gender expression.

“That is the reason why the bill is completely haywire. Its drafters seem to believe that all transgender people have genital problems, which is completely wrong,” Aher told The Citizen.

“Speaking as a community person from the transgender section, I know that we are still trying to understand the diversity of identities. How can a state, without knowing this depth or the politics of identity… how can they just pass a bill?” Padmashali asked.

Opinion prevails that the government formulated this bill without due consultations with people belonging to the trans community. “I urge the government to destroy this bill, to demolish this bill, and to please bring a bill in favour of the community, which is the Supreme Court’s 2014 NALSA judgment,” said Padmashali.

She also called for Parliament to institute a Sexual Minorities Commission that would take these communities’ perspectives into account. And for the government to establish Welfare Boards for transgender people, at the national and local levels.

“The Indian trans community is thriving,” said Aher. “We are so progressive, and based on our NALSA judgment Pakistan, Nepal, everybody made changes in their system. Pakistan is way ahead of us in actually introducing an inclusive transgender bill for trans people. Why are we lagging behind?”

If the Rajya Sabha passes the bill in its present form during the winter session, Padmashali said trans rights activists will challenge its constitutionality before the Supreme Court. “That is the only way we can receive justice.”