Ever since the Supreme Court of India’s historic 2014 judgment in NALSA v Union of India in which it recognised the right of transgender persons to decide their self-identified gender and directed the “the Centre and state governments to grant legal recognition of their gender identity such as male, female or as third gender”, the discussion around transgender rights has exploded.
In 2016, the Union government introduced the Transgender Persons (Protection of Rights) Bill. However, this bill was subjected to severe criticism by transgender and intersex groups who called it a “massively diluted, criminalising and pathologising text” that “far from protecting the rights of the trans community…will end up curtailing the very rights already granted by the Supreme Court in the NALSA verdict”.
The government had the opportunity to respond to the criticisms and course correct when the bill was sent to a parliamentary standing committee. After an open and consultative process, the committee produced an extraordinary report that detailed the changes to be made in the bill so as to fulfil the promise of NALSA v Union of India.
The committee’s report sensed the historic nature of the bill. It noted:
“The Committee would like to assure and remind to all the members of transgender community that, ‘A historic shift is underway, you are not alone in your struggle for the end of violence and discrimination. It is a shared struggle. Transgender is not an anomaly. It is a part of the spectrum of people’s realities. While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight – there is a most certainly shame and dishonor in being a homophobe, a transphobe and a bigot.’”
Problematic definition in bill
The first barrier that transgender persons often face is a denial of their right to be recognised as a person before the law. Most legal systems fail to recognise transgender persons in the gender of their choice or set up insuperable barriers to getting legal recognition in the gender of their choice. It is here that the failure of the 2016 bill is most stark. It is to the credit of the standing committee that it recognised this failure in no uncertain terms.
The bill proposed a definition that saw transgender persons as “neither wholly female nor wholly male”, “a combination of female or male”, and “neither female nor male”. The committee characterised this language as “unscientific and primitive”. In the committee’s opinion, this did strong harm to the core principle of NALSA v Union of India, which is the right to “self identification as male, female or third gender”.
If at the threshold transgender is defined as “neither female or male”, then the bill completely fails to recognise that there are transgender persons who though assigned the gender male at birth identify as women, and vice versa.
The bill denies that there are plural ways of identification and restricts transgender identity to a narrow compass. To broaden the ambit of protection, the committee proposes the use of the term “gender identity” and “gender expression”.
The committee’s proposal to define gender identity and gender expression is well in tune with current developments in international law. Gender identity has been defined in the Yogyakarta Principles, and the newly-released Yogyakarta Principles plus 10 goes on to define gender expression as well. Both are a landmark set of principles on the application of international human rights law in relation to sexual orientation and gender identity.
The importance of looking at transgender through the prism of gender identity and gender expression is to include both those who transition from one gender to another through medical intervention, and those who choose to express their gender through dress, speech and deportment without going in for any medical intervention.
Self-identification ignored in bill
However, the definition of transgender is only the starting point of the problems with the bill, as even within this restricted compass of what the bill considers to be transgender, there are insuperable obstacles placed to getting recognition as transgender.
For instance, the 2016 bill proposes a district screening committee to recommend whether a person should be given a “certificate of identity as a transgender person”. The idea of a screening committee runs counter to the principle of self-identification, and when the screening committee includes a psychologist and chief medical officer then there is the danger of the principle of self-identification mutating into a form of medical control over gender identity.
The dangers of the screening committee nullifying the mandate of NALSA is made by the committee, which says that any procedure for identification of transgender persons that goes beyond self-identification, and is likely to involve an element of medical, biological or mental assessment, would violate the rights of transgender persons rights under Article 19 (freedom of expression) and Article 21 (right to life) of the Indian Constitution.
Criminalising transgender persons
The bill also fundamentally misunderstands the specific circumstances in which transgender persons are forced to eke out a living. The nature of discrimination faced by the hijra community in India has limited their options for employment, with begging and sex work largely being the options open to the marginalised community.
In such circumstances, to criminalise whoever “compels or entices a transgender person to indulge in the act of begging” can end up, as the standing committee notes, “criminalising transgender persons begging of their own volition”. The committee pointed out that the way to address economic and social marginalisation is not through criminal law but rather through providing alternative employment opportunities and skill development.
The other misunderstanding that the bill perpetuates is the role of the family in the lives of many transgender persons. It provides for the right of transgender persons to “reside in the household where parent or immediate family members reside” and the right “not to be excluded from such household…” It also provides that when any family member is unable to take care of the transgender person, the “court shall direct such person to be placed in a rehabilitation centre”. The underlying premise is that the family is the protector of transgender persons and the law must take care of the exception, that is, when the family refuses to take care of the transgender person.
Families and violence
However, the documented reality sheds a different light on the role of the family. When it comes to transgender persons, families are often the first perpetrators of violence. As the standing committee notes,
“In fact, it is the family that is the seat of violence, abuse and a denial of identity for young trans-person. For transgender children and minors, the family and the natal home become places where the right to self-determined gender and to express that gender through various means, are severely curtailed. They have to often leave their homes to escape from the domestic abuse and have nowhere to go, including no legal protection for domestic violence.”
The committee’s findings are prescient and anticipate new developments in international law as embodied in Principle 30A of the Yogyakarta Principles plus 10, which, in the context of violence, discrimination or other harm enacted on the basis of sexual orientation, gender identity, gender expression and sex characteristics, enjoins states to “exercise due diligence to prevent, investigate, prosecute, punish and provide remedies for discrimination, violence and other harm, whether committed by state or non-state actors”.
Any new legislative attempt must envisage the kinds of harm, violence and discrimination perpetrated on transgender persons by the family and initiate the collective task of taking this violence seriously and redress it.
It is a tribute to the resilience of the hijra community that this violence by both family and society has resulted in the formation of alternative community structures. As the standing committee noted,
“[For] transgender children…[who]…run away from the natal home, the Hijra families, the ‘Jamaats’ or ‘dormitories’ are places of refuge, the ‘Hijra elders’ their adoptive parents, the ‘Hijra community’ their family and friends. The Bill ignores this critical aspect of transgender persons” lives.”
In a radical step, the committee proposed that these alternative family structures should be recognised.
Consultative process ignored
As much as the Transgender Persons (Protection of Rights) Bill fails the transgender community, the standing committee report is a testimony to how state institutions can be sensitised to the problems faced by a vulnerable and marginalised community. In its recognition of the importance of “the principle of self-identification”, its commitment to a broad understanding of gender identity and expression and its conceptualisation of the family as a source of violence against transgender persons, the standing committee takes several steps forward in understanding and responding to the persistent rights violations faced by the transgender community.
The fact that the government chose to summarily reject the standing committee report and will now table the much-criticised bill in Parliament, is nothing short of callous. If democracy is meant to ensure that those in power hear the voices of those for whom they legislate, it is important that the mechanism of the standing committee, which can facilitate democratic participation, be taken seriously.
The standing committee report, which was the product of numerous consultations with the transgender community, demonstrates how a parliamentary report can, at its best, embody the struggles, hopes and aspirations of a marginalised community. Since the carefully thought through proposals in this report have been summarily rejected by the government, which is intent on introducing the harmful bill, there is no option but to support those from within the transgender community who are demanding that this bill, in its current form, be unequivocally rejected.