On Tuesday, 26th November 2019, the upper house of the Indian Parliament passed the Trans Persons Protection of Rights Bill, despite protests from the opposition, and more importantly, from the trans communities.
The Trans Bill has been controversial since it was first proposed and introduced in 2016. Activists have criticised the bill, arguing that it had no representation or say from the transgender communities and will contribute to discrimination, stigma and further transphobia, only this time it will be supported by law. In our latest Scratching the Surface, we talk about the various aspects of the Bill, where it went wrong and why we need to #StopTransBill2019.
1. Identification
The Trans Communities had next to no laws supporting or even recognising them, until the historical 2014 NALSA judgement, that recognised transgender individuals, as the third gender for the first time in over two centuries, and acknowledged their right to self-identification.
The Trans Persons Protection of Rights Bill directly violates the NALSA judgement of 2014, that advocates for self- identification. It requires trans people to be ‘certified’ by the district magistrate to have their identity recognised. Moreover, if a person is to change their preferred gender to male or female, they would need to show proof of SRS. And in case the individual is denied the certificate, the Bill mentions no provisions for an appeal or review of the decision.
2. Reservation
By categorising trans persons as socially and educationally backward classes, the Bill does not allow for reservation in education, healthcare and employment. These opportunities are essential since they’re denied to most transgender people due to financial issues and general discrimination.
3. Intersex Persons
While the bill has a separate definition of intersex persons, it, brings them under the definition of transgender persons, thereby violating their right to self-identify and conflating sex and gender. This shows a flawed understanding of trans people in the bill and continued marginalisation of intersex persons and their concerns.
4. Family
Despite many transgender persons separating from their biological families, and living with chosen families in safe spaces, the bill requires the court order to decide where a trans child will live — either with biological family or the community family.
5. Discrimination
The bill lays down 8 grounds under which transgender individuals cannot be discriminated against. However, it doesn’t clearly define discrimination, nor layout what the penalities of discriminating against a trans person would be. Concerns raised by trans activists included lack of enforcing authority, no remedial measures for survivors of discrimination and no defined punitive measures against the violators.
Additionally, any kind of violence towards a trans person is punishable by a maximum term of only 2 years.
Despite protests by the opposition and trans communities, the Trans Bill was also passed by the Rajya Sabha on Tuesday, 26th November 2019. It has been unequivocally rejected as being transphobic and regressive.
Transgender persons must be recognised without the surveillances of medical diagnosis and district magistrates, and without forms of stereotypical certification or the intrusion of arbitrary institutions that refuse their right to self-identity.