Print edition : November 11, 2016

Members of the transgender community staging a protest against the Transgender Persons (Protection of Rights) Bill in Hyderabad on August 28. Photo: G. Ramakrishna

Tiruchi N Siva, DMK MP. Photo: G. Krishnaswamy

The Transgender Persons (Protection of Rights) Bill faces opposition as it fails to address the concerns of the community adequately.

TRANSGENDER people have been among the most marginalised sections of Indian society, battling discrimination at multiple levels. Apart from struggling with the problem of identity, they have been deprived of social justice and the right to vote.

The introduction of the Transgender Persons (Protection of Rights) Bill, 2016, in the Lok Sabha on August 2, seemed to change all that. But transgender people claim that contrary to expectations, the Bill does not address their concerns. The Bill imperils some of the rights guaranteed by the Supreme Court’s April 2014 judgment in National Legal Services Authority (NALSA) vs Union of India. It also appears, in part, to be an exercise to stymie the landmark private member’s Bill passed by the Rajya Sabha in April 2015. When Dravida Munnetra Kazhagam (DMK) member Tiruchi Siva introduced the Rights of Transgender Persons Bill in the Rajya Sabha in 2014, Bharatiya Janata Party (BJP) MPs, including Arun Jaitley and Mukhtar Abbas Naqvi, tried to dissuade him from doing so. This is not surprising, given the BJP’s stand on Section 377, which criminalises gay sex. The stakeholders allege that the current Bill, introduced by Social Justice and Empowerment Minister Thaawarchand Gehlot, was readied without consulting them.

A cross section of transgender people feel that they had only consulted a few non-governmental organisations and funding agencies that are sympathetic to the BJP and ignored the vast majority of the transgender community. As the 2016 Bill faced opposition from several quarters, the Lok Sabha Speaker referred it to a Standing Committee of the Social Justice Ministry, seeking a report within three months.

Vyjayanthi Vasanta Mogli, founding member of the Telangana Hijra Intersex Transgender Samiti, termed the Bill as the Transgender Persons Decimation and Violation of Rights Bill. “To call the Bill problematic would be a mild understatement. It is outright draconian and poisonous and should be thrown into the dustbin,” she said. In August, the samiti, along with other organisations, got together under the banner of the Hijra Tehzeeb Bachao and took out a rally in protest against the Bill. The protesters demanded the scrapping of the 2016 Bill and implementation of the Bill moved by Tiruchi Siva, which more or less took care of their concerns. While the government claims to have improved on the 2014 Bill, Tiruchi Siva says the recent Bill is a watered down version of his Bill.

“If this becomes an Act, it will be a law without teeth. It will not help rectify centuries of discrimination transgender people have faced,” he told Frontline. Tiruchi Siva’s Bill had progressive provisions such as 2 per cent reservation in primary, secondary and higher education in government institutions and government jobs, employment exchanges and exclusive courts in each district for transgender people, and national and State-level commissions to monitor their rights along the lines of women and minority commissions. It also had a specific provision for the protection of the children of transgender people. But the Bill introduced by the Ministry has removed these provisions on the grounds of their being “impractical”. The Supreme Court had indicated in its ruling in the NALSA case that transgender people would be included in the Other Backward Classes (OBC) category. It had further stated that if the caste at birth of a transgender person was Scheduled Caste or Scheduled Tribe, the person would be able to claim benefits and protections under reservation for the OBC category.

Self-identification

A major drawback in the Bill is the removal of the principle of self-identification, which was upheld by the Supreme Court in the NALSA case. Emphasising the right to personal autonomy and self-determination under Article 21, the court said: “The gender to which a person belongs is to be determined by the person concerned.” It upheld the right of a person to identify himself/herself as a male, female or a third gender irrespective of whether the person has undergone a gender change surgery through medical intervention. The judgment also said: “No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution [freedom of speech and expression]”.

The Bill conflates gender, which is a societal construct, with biological sex. The NALSA judgment had a comprehensive description of who fits the description as a transgender person:

“Transgender [TG] is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who, in this writ petition, describe themselves as ‘third gender’, and they do not identify as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional ‘third gender’. Among hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/ akva/akka) and inter-sexed persons (hermaphrodites). TG also includes persons who intend to undergo sex reassignment surgery [SRS], or have undergone SRS, to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in the clothing of the opposite gender, that is, transvestites. Resultantly, the term ‘transgender’, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.”

Exclusionary definition

In contrast, the Bill’s definition of transgender is exclusionary and limiting: “Neither wholly female nor wholly male; or a combination of female or male; or neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes transmen and transwomen, persons with [themselves] inter-sex variations and gender-queers.” This covers only persons who are inter-sex and dysphoric. Inter-sex is a biological condition and a small category within the huge umbrella of different gender identities covered by transgender. Dysphoric is a diagnostic term used by psychologists to refer to persons who experience significant dysphoria (discontent) with the sex and gender they were assigned at birth and they belong to a smaller category among transgender people. As per the 2011 Census, there are 4.8 lakh transgender people in the country. In 2011, the Telangana government conducted a survey and found that there were 60,000 transgender people in 11 districts of the State, with 15,000 in Hyderabad alone. Vyjayanthi Vasanta Mogli believes that this effectively discredits the 2011 Census and shows that India is yet to properly enumerate its transgender population. Nevertheless, it proves that the 2016 Bill covers a very small percentage of the transgender population.

Tiruchi Siva pointed out several flaws in the Bill, beginning with the recognition of identity. In order to receive a certificate of transgender identity, the person has to make an application before a District Screening Committee comprising the Chief Medical Officer (CMO), the District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community and an officer of the relevant government. Transgender people have rejected the idea of standing before a supra-constitutional body to prove their gender identity. “This is humiliation,” said Tiruchi Siva.

The presence of a CMO on the panel is a human rights violation, according to Karthik Bittu Kondaiah, a transgender person. “The transgender community is already subjected to such violations by the uninitiated medical professionals and arms of the state, where trans, gender-queer, gender-fluid, non-binary, inter-gender and pre-op transpersons are subjected to intrusive body searches, stripping, feeling up of breasts and genitalia. With this Bill, such acts will have the sanction of the state and will be contrary to the NALSA verdict, which expressly prohibits such acts.”

The presence of a psychiatrist on the panel was problematic. Vyjayanthi Vasanta Mogli said: “A psychologist should come into the picture if a person plans to undergo an SRS and only if the person chooses to do so. The government cannot make appearance before such a committee mandatory. The objection raised in this regard is what if a man declares himself as transgender to misuse the law? First, the Bill does not have any provision of reservation, unlike Tiruchi Siva’s Bill, therefore, the question does not arise. Secondly, being known as transgender further stigmatises and ostracises a man, so it is an absurd generality to make. Lastly, misuse of a law cannot be an excuse to deprive people of a law, as every law can be, and is, misused.”

While the NALSA judgment recognised the diversity of the transgender community by taking into account the hijras, eunuchs, jogappas, and shiv-shakthis, among others, and traced their historical presence, the latest Bill ignores all that. Shunned and stigmatised by society and their own families, transgender people have, over the years, built a world for themselves where they can reclaim some of their dignity. Hijras have formed havelis, or households, some of which date back hundreds of years and operate under the tradition of guru-chela, recreating the family set-up among themselves.

But the Bill seems to be operating in a void when it says: “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person .... Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in a rehabilitation centre.”

Fear of separation

Rehabilitation centres are in pitiful conditions and have become new sites for violence and humiliations. Kartik Bittu Kondaiah said: “This is a direct attack on the hijra family system and the right of transpeople to live with family/lovers of their choice...when forced to conform to biological gender norms often through physical and emotional abuse, the only recourse for trans children is to run away from the natal homes. For them, the hijra families, the jamaads, or dormitories, are places of refuge, the hijra elders are their adoptive parents, the hijra community is their family and friends. This clause puts the hijra and aravani community elders—the adoptive parents of young transgender persons—under undue risk. The hijra family system becomes unnecessarily and unfairly criminalised in this Bill. The Bill, instead of protecting the transgender people’s rights, seeks to curtail them.”

Sabira, a member of the transgender community in Hyderabad, said: “If society and our parents accepted us, would we need to live like this? Our havelis are a gift of the Nizam government and we have developed our own syncretic culture in it, where we live, love, fight, disagree and share our happiness and grief in equal measure. Now, the government wants to swoop down on us and dispense with our culture.” The havelis have a national network numbering in the thousands, both in big cities and small towns and villages, and the members often visit each other. The Bill makes begging a criminal offence with imprisonment of up to two years and fine.

Karthik Bittu Kondaiah said: “In November 2014, many transwomen were randomly picked up from public places in Bengaluru and illegally detained in the infamous ‘Beggar’s Colony’, a ‘rehabilitation’ centre for beggars with deplorable living conditions. They were taken under the Karnataka Prohibition of Beggary Act, 1975 [which, interestingly, exempts ‘religious mendicants’ from its purview]. It has to be understood that begging is a result of structural inequalities in our societies which have led to lack of education and employment opportunities, which in turn have co-relations with activities such as begging. This provision, a human rights violation, would also be used with impunity by agencies of the State such as the police to criminalise transgender people.”

The latest Bill does not define discrimination and make discrimination of transgender people in routine places such as educational institutions and health care establishments a punishable offence. The Bill also does not provide for transgender health care; Tiruchi Siva’s Bill made a clear mention of providing free SRS to them.

The government should move beyond tokenism and bring in a law that adequately addresses the community’s concerns.

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