The transgender community has strongly objected to the recently formulated Transgender Persons (Protection of Rights) Bill, 2016, which was introduced in the Lok Sabha on Tuesday, saying it dilutes their rights and penalises certain professions followed by transgenders such as begging.
The Ministry of Social Justice and Empowerment released a copy of the newly formulated Bill on July 29.
The movement towards the legislation started in 2013 when an expert committee appointed by the ministry filed a report recommending the recognition of the rights of transgenders before the law.
In 2014, in a landmark judgement, the Supreme Court recognised transgenders as the third gender and sought to provide them social protection.
A private member’s Bill protecting and providing for the rights of transgenders was passed in the Rajya Sabha in April 2015. In December that year, the ministry released a Bill, which was later modified into the current version.
Members and supporters of the transgender community said that their rights have been diluted with every successive version of the Bill.
“The principle of self-identification held aloft by the Supreme Court that was very much in line with global jurisprudence has been diluted,” said Vyjayanti Vasanta Mogli, a student of public policy at Tata Institute of Social Sciences, Hyderabad. "That's actually a very mild word. It has been dispensed with."
Who is a transgender person?
The problems with the Bill go to the core of transgender identity, as the definition of transgender in the Bill itself restricts itself to biology and not gender.
The Bill defines transgender as a person who is "(a) neither wholly female nor wholly male; or (b) a combination of female or male; or (c) 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”.
“This is a very screwed-up understanding of transgenders," said Bittu Karthik Kondaiah, a trans person who teaches at Ashoka University, Delhi. "Most transgenders would not fall under either a, b, or c. In effect, most of us are excluded.”
He added: “We are, in fact, urging people to undergo gender transformation surgeries before the Bill is passed.”
Besides holding onto stereotypical notions of male and female, the definition in the Bill is restricted to the biological sex. “This would effectively only recognise intersex as transgender, whereas transgender is a larger umbrella which also includes intersex,” said Mogli.
Intersex refers to people with atypical development of physical sex characteristics, including abnormalities in external genitalia, internal reproductive organs, or sex chromosomes.
A certificate of identity
As per the Bill, a district magistrate will issue a certificate of identity to a transgender person, which in turn will confer rights and be a proof of recognition of his or her identity as a transgender person. This certificate will be issued after a transgender person is screened by a district committee comprising a medical officer, district social welfare officer, psychologist or psychiatrist, a representative of the transgender community, and any other officer appointed by the government.
Activists say that this strikes at the heart of the Supreme Court judgement that upheld self-identification.
“This expert committee was recommended in the expert committee report too," said Danish Sheikh, from the non-profit International Commission of Jurists. "This process has been critiqued by the community and has been controversial as it created barriers.”
Gender rights activists also said that chief medical officers and district social welfare officers do not necessarily have the credentials to understand transgenders, and certification by such a panel should preferably be just a formality.
“It should empanel medical professionals who have a long history of certifying transgenders," said Kondaiah. "The majority of panelists should be from the community.”
The transgender community has been kept out of regular sources of employment for centuries. Thus many, said Mogli, have created their own line of work in begging and sex work.
However, the Bill penalises “enticing and compelling” a transgender person into begging and other similar forms of bonded labour with six months to two years in prison.
“I do not know who is enticed into begging,” said Kondaiah. "This is an extremely dangerous section. It criminalises only the community specifically."
Apart from that, the Bill mandates the government to rescue and rehabilitate transgender persons, including those who are banished by their families. The regressive language criminalises the community even further, said Kondaiah.
Besides this, the offences of physically harming a transgender – including physical, sexual, verbal and emotional abuse – carry the same punishment of six months to two years. The Indian Penal Code has higher punishments for sexual and physical offences, which include life imprisonment. On the other hand, the sections related to discrimination and denial of rights of transgenders have no penal sections in this Bill.
There will be protests
The Bill does not have any concrete provisions for medical aid especially for sex reassignment surgeries, or for gender-neutral rest rooms, and skill development and employment. Many of these provisions were present in earlier drafts, but were dropped in the latest version.
Since the Bill has been available online only since Tuesday night, the community is yet to figure out who to address their protests to.
“The government is not taking the transgender community seriously," said Mogli. "We would rather have no legislation than having this one pass."
The community is trying to mobilise people from prestigious institutions such as the Tata Institute of Social Sciences in Mumbai, National Law School, Bengaluru and the National Academy of Legal Studies and Research in Hyderabad.
”We will have protests like the Patidar community in Gujarat," said Mogli, angrily.