On 26 November 2019, Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill, hereafter mentioned throughout the article as ‘Bill’ or ‘Trans* Bill,’ without any amendments. A year ago we had only one reason to mourn 26/11, but now we’ve two.
Trans* (the asterisk signifies anyone other than cisgender persons) people have been voicing their opinion ever since the Lok Sabha passed this Bill last year in December, but it lapsed in the Rajya Sabha. This year, on August 5, 2019, a version of this Bill was passed.
It coincided with the abrogation of Article 370 in the state of Jammu and Kashmir. It could be a strategic way by the ruling party to silence protests by the trans* community, as the whole country was already in shock after hearing about the lockdown of the Valley. However, there’s one more common link between both of these acts: Both violate human rights.
What everyone feared happened, the Bill was passed in the Rajya Sabha via a voice vote. Sometimes we’re made to wonder what more is in store with the Modi-led BJP government and what else they’re going to do with this country. It seems like they’re redefining fascism for the whole world, and the passing of this Bill is one such attempt.
Let’s have a look at the journey of this Bill.
Background
2014: Extending constitutional support to ensure fundamental rights to the transgender community in India, the Supreme Court of India in its landmark judgment in the National Legal Services Authority vs. Union of India provided transgender people with the right to self-identification.
The highlights of the judgment were:
a) It gave transgender persons the legal provision to be recognized as the ‘third gender.’
b) It gave them the right to self-identification of their gender—it opposed the use of or endorsing the use of sex-reassignment surgery (SRS) as an essential condition for changing one’s gender identity.
c) It called this (SRS) illegal and encouraged the use of a ‘psychological’ test instead of a ‘biological’ one.
d) It ensured their socioeconomic and political rights.
Note: Rights of Transgender Persons Bill, 2014 was a private member’s bill presented by DMK’s Tiruchi Siva, and was the first one to get passed in 45 years. It was unanimously passed in the Rajya Sabha in 2015; however, it faced severe opposition, but Siva didn’t budge and continued to push this Bill fighting for the rights of trans* people.
It shouldn’t be confused with the Transgender Persons (Protection of Rights) Bill, which was presented by Thawar Chand Gehlot, and rightly faced severe criticism for being ignorant of all the rights of trans* people. And, it’s what this article critically examines.
2018: Along with 27 amendments, all of them being humiliating and inevitably promoting discrimination and abuse against transgender people, the Lok Sabha passed a version of the Rights of Transgender Persons Bill in 2018. This invited much wrath from the trans* community and they rejected it unequivocally. This Bill, however, wasn’t passed in the Rajya Sabha.
Before November 26, 2019: Introduced again in July, this year, the Bill was passed by the Lok Sabha on August 5, 2019. And if Rajya Sabha passes this Bill, then it’ll create a havoc in the lives of the already marginalized and highly discriminated transgender community.
November 26, 2019: The Bill was passed in the Parliament.
What’s Wrong With The Bill?
There are innumerous grey areas, definitions aren’t clearly defined, the call to create a ‘council’ is in itself very discriminatory and exclusive as it doesn’t cater to intersex and/or gender non-conforming persons. This Bill is the worst nightmare for any trans* person.
Jaya Bachchan rightly pointed out in the Rajya Sabha that we haven’t been “sensitive” while dealing with this Bill. However, what’s more interesting is that leave sensitivity, we haven’t even got the basics rights when it came to this Bill. Here’s what’s wrong with the Bill point by point.
Confusing gender and sex.
The Bill has clubbed everyone under the same umbrella term “transgender.”
Why Is This Problematic?
This completely confuses ‘sex,’ a biological construct with ‘gender,’ a social construct. Someone assigned a particular ‘gender’ at birth may not feel that way, and if it conflicts with the person’s deeply-held gender identity, this has nothing to do with genitalia.
It is related to gender, it’s expression, and performance. However, intersex persons have no clearly defined genitalia, and intersex in itself has several variations in it. It is up to anyone’s imagination as to why the Bill goofed this up.
Vicious loop of identity certification will do nothing more than encouraging corruption and amplifying abuse against the trans community.
According to the Bill, “A transgender person may make an application to the District Magistrate (DM) for issuing a certificate of identity as a transgender person,” who in turn will transfer this application to a “District Screening Committee” that shall comprise of a Chief Medical Officer, District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community, and an officer of the appropriate Government to be nominated by that Government.
The committee will determine and issue to the applicant a certificate of identity, which shall be a proof of the person’s identity as a transgender. However, if a person undergoes surgery, then such a person has to again file an application, “along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed.”
Why Is This Problematic?
The caveat here is that the DM needs to be “satisfied” with the “correctness” of this certificate and then issue a certificate indicating the change of gender. This process not only violates the NALSA judgment ensuring the right of transgender people to self-identification of their gender, but is humiliating and corrupt.
Instead of making the process smooth, it has created a series of checks of frameworks that have to be navigated, which will not eventually delay someone’s right to self-identification but will invite mental frustration too.
Trans people’s lives do not matter that much.
Any act of sexual violence against a cis-woman attracts a punishment of “minimum” 7 years of imprisonment. However, if the same happens with a trans person, then the accused will be slapped with imprisonment of anywhere between 6 months to 2 years.
Why Is This Problematic?
It’s deeply disturbing. This denies them the right to equality before the law, denies them the right to dignity, and this ignores many forms of sexual violence that are inflicted upon trans, intersex, gender non-conforming people on a day-to-day basis by not defining the specific atrocities they face.
Residing with one’s family: violating the freedom to reside anywhere.
The Bill explicitly mentions and encourages trans people to stay with their “birth family,” and if there’s a conflict of interest, then the court will decide whether a trans child will stay either with parents or regular cultural/community family.
Why Is This Problematic?
Is it some sort of joke on the trans community? It’s a given that the “birth family” is the first site of violence against trans people. By this, the Bill is also taking away trans people’s right to reside anywhere in a ‘free’ country.
Demands of Trans* People
In order to stop this Bill from being passed in the Rajya Sabha, trans* and queer people, this writer included, and their allies had gathered outside Jantar Mantar in New Delhi to register protest against its regressive approach.
Various trans activists like Bittu, Associate Professor of Biology and Psychology, Ashoka University, Ray, a trans woman activist, Vikramaditya Sahai, a teacher, and researcher, and Rachanamudra, trans woman and activist had organised, attended, and spoke at the protest, and unequivocally said that the Bill mustn’t be passed. They also put forth their demands:
- To send the Bill to a “Select Committee”—Which didn’t happen and the Bill was passed without any amendments.
- The NALSA judgment should be honored — The right to self-identification is ignored by the Bill, a DM will decide who am I? No wonder, 1984 is being made real!
- Violence against transwomen, and as a matter of fact anyone, be given equal punishment under the law.
- Affirmative actions for trans, intersex and gender-nonconforming people in employment, education, and healthcare be provided.
- Their will to legally recognize families of choice, partnership, marriage or companionship be honored.
- Committee’s recommendation to uphold the sociocultural heritage of adoption of young transgender children as observed in Hijra or Aravani communities be encouraged.
Further, to create more awareness, various trans activists and queer people, this writer included, took to Twitter and started posting video testimonials and other tweet threads. On November 24, 2019, even at the Delhi Pride Parade, there were numerous posters and pamphlets to bring people’s attention to this Bill, but it seemed like everything went in vain.
Sometimes I find that it’s not that we don’t have the acumen to sit, discuss, and come to a concrete solution, but there is no intent and will to respect the Constitution, it seems. The government is hell-bent to prove who’s mightier.
What’s happening now is that people are relentlessly sharing their concerns over Twitter, Instagram, and other social media platforms to reach a much wider audience. The least we can do is to retweet their concerns and make a mass appeal that the President doesn’t let this Bill go in the form that it is.
However, the way things are unfolding in the country at this moment, I have my doubts. What I don’t doubt is the cause that trans* people, I, and others are fighting for, each one of us in our own way, and we’ll do it until trans* people, our friends, don’t get equal rights and opportunities that they rightly deserve.