The Transgender Persons (Protection of Rights) Bill, 2016, which was passed by a voice vote in the Lok Sabha on Monday, criminalises the community and is discriminatory, transgender rights activists said on Tuesday. In addition, they say the Bill violates the Supreme Court’s landmark National Legal Services Authority judgment of 2014 recognising the right of transgender persons to decide their self-identified gender.
The activists added that the Bill was regressive when compared to a private member’s Bill that had been introduced by Dravida Munnetra Kazhagam leader Tiruchi Siva and passed in the Rajya Sabha in 2015.
“It is a black day for us,” said Grace Banu, a Dalit transgender rights activist. “We had conveyed our recommendations to the government. They did not even care for the suggestions made by [members of Parliament] Shashi Tharoor and Supriya Sule.”
The Bill, which is yet to be passed by the Rajya Sabha, was introduced in the Lok Sabha in August 2016. It was then criticised by transgender and intersex groups for many reasons, including for getting the definition of transgender wrong. That Bill defined transgender people as “neither wholly female nor wholly male”. It was sent to a parliamentary standing committee, which tabled its report in Parliament in July 2017, only to see it rejected by the government.
The Bill passed on Monday had 27 amendments made to it by the government. In the amendments, the definition of transgender was changed to “a person whose gender does not match with the gender assigned to that person at birth and includes trans man or trans woman, person with intersex variations, gender queer and person having such socio-cultural identities as kinnar, hijra, aravani and jogta…”
However, Bittu K, a transgender rights activist, said that barring the amendment in the definition of “transgender” and other minor changes, the Bill is not very different from the one tabled in 2016. “The government did not include any of our recommendations,” he said. “We had raised the same concerns last year as well.”
Recognition of identity
One of the biggest objections to the Bill passed on Monday is that it does not recognise the right to self-identification, which is at the heart of the National Legal Services Authority judgment.
The Bill states that a transgender person has to get a certificate of identity from the district magistrate. This certificate will be issued on the basis of recommendations made by a District Screening Committee, which will consist of a chief medical officer, a member of the transgender community, a district social welfare officer, a psychologist or psychiatrist and an officer nominated by the government, says the Bill.
Bittu K said this requirement was unscientific and bureaucratic. “This is an extremely unfair process which says that transgender people should submit applications to be recognised as transgender to a screening committee who have no understanding of who transgender people are,” said the activist. “Our identities are in our minds and can only be communicated linguistically. This is not something a district officer can screen for.”
Other activists said this aspect of the Bill could create more problems for those who cannot afford to undergo sex reassignment surgery and hormone therapy. “In my mind, I am a man,” said Ajit (name changed to protect identity). “How will the committee tell me who I am? The Bill has left me in shock. This is a torture for those who do not have have money for surgery.”
‘Criminalising transgender community’
Activists point out that a clause in the Bill criminalises begging for the transgender community. The Bill states that anyone who “compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government”.
Tripti Tandon of the Lawyers’ Collective, a legal services organisation, said this could be seen in two ways. “Transgender persons do not have an alternative livelihood so most of them beg or engage in sex work,” said Tandon. “Another perspective is that this is a traditional cultural practice which they are entitled to preserve.”
Anindya, a transgender rights activist, pointed out that the Bill criminalises begging but did not provide alternative employment. “We reject the Bill in its current form,” said Anindya.
Crimes against transgender people
Activists said that the Bill passed on Monday prescribes imprisonment of six months to two years against those who commit crimes against transgender persons. However, activists said that this term was lower than that prescribed for cases related to crimes committed against women and other marginalised communities.
“This is discriminatory as the punishable terms for cis-gendered women goes up to seven years,” said Bittu K. Cis-gender is a term used for those whose gender identity corresponds with the sex they were assigned at birth.