Stiff opposition to transgender persons Bill

The Transgender Persons (Protection of Rights) Bill, 2018, passed by the Lok Sabha on December 17 last year and introduced in the Rajya Sabha on January 8, faces stiff resistance from activists. Rachana Mudraboyina, a founding member of the Telangana Hijra Intersex Transgender Samiti and founder of the YouTube channel TransVision, and Kranti L.C., a queer advocate with Human Rights Law Network (HRLN), have jointly authored a critique of the Bill. 

The Bill defines a transgender person as one who is partly female or male, or a combination of female and male, or neither female nor male. In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.  The definition of “transgender persons” in the Bill is at variance with the definitions recognised by international bodies and experts in India, and this has led to considerable disappointment; the Bill does not define terms like trans-men, trans-women, intersex variations and gender-queers. The Bill’s silence on how criminal and personal laws that recognise only two genders will apply to transgender persons, who may not identify with either of them, is another area of concern.

According to the Bill, a transgender person must obtain a certificate of identity as proof of recognition and to invoke rights. Such a certificate would be granted by the District Magistrate on the recommendation of a screening committee comprising a medical officer, a psychologist or psychiatrist, the district welfare officer, a government official, and a transgender person.

Rachana Mudraboyina and Kranti L.C. say they are not sure how the definition of trans-person would be allowed to fructify in the light of the procedure mandated for trans-persons to assert themselves so. 

On the issue of self-determination of one’s gender, the Bill falters on three counts, they say.  One, it introduces a sketchy provision of right to self-perceived gender identity, but the same is available only to those who are recognised under the proposed Act.  Second, contrary to the Supreme Court’s NALSA judgment in 2014, which recognised transgender rights, the Bill proposes validation of one’s gender by a screening sommittee, which underlines the medical model decried by the court. Third, it makes sex reassignment surgery (SRS) mandatory for asserting one’s gender as male or female in spite of the pronouncement by the Supreme Court that any insistence on SRS for declaring one’s gender is immoral and illegal.

The Bill prohibits discrimination against transgender persons in education, employment and health care and directs the Central and State governments to provide them welfare schemes in these areas. The Bill’s silence on the prescription of reservation for trans-persons in educational institutions and government jobs has also been commented upon by the authors of the critique.

Rachana Mudraboyina and Kranti L.C. have expressed concern that the Bill’s lack of commensurate budgetary support and monitoring and accountability provisions in the area of health care is a conscious dereliction “in the light of our experience with the public health sector being underfunded and run to the ground”.

They are also critical of the Bill’s “patchy and faint-hearted prescriptions lacking assurances in terms of resources, monitoring, accountability and recourse on exclusion and discrimination”. 

The Bill proposes the setting up of a National Council for Transgender persons.  Mudraboyina and Kranti called the proposal a cruel joke on transgenders’ aspirations for an accountable and workable oversight body. The Bill envisages the size of the council to be of 33 members, which has led to concerns that it could become unwieldy. The lack of similar provisions at the State and district levels is considered a serious lapse.

The Bill makes it an offence to compel transgender persons to beg or do forced or bonded labour (excluding compulsory government service for public purposes); to deny them the use of public space or place of residence; and to indulge in abuse, physical, sexual, verbal, emotional or economic, of transgenders. These offences will attract imprisonment of six months to two years and a fine. The comparatively mild punishments have disappointed the activists. The vast majority of members of the trans community, the activists point out, has resorted to taking alms in the face of social ostracisation and the absence of efforts by governments to create livelihood options.

There is considerable apprehension that the Bill seeks to undo many of the achievements of the Supreme Court’s NALSA judgment, and a constitutional challenge to the Act, if it is passed by the Rajya Sabha, cannot be ruled out.

Mudraboyina and Kranti ask: “The LGBTQI+ community would do well to take a deep breath and consider whether the mandate of the Supreme Court in Navtej Singh Johar will be met with the same disregard on blatant display in the form and shape of the Transgender Persons (Protection of Rights) Bill, 2018?”