The Transgender Persons (Protection of Rights) Bill, 2019, which received the President’s assent on December 5 and was notified as an Act by the National Democratic Alliance (NDA) government at the Centre despite nationwide protests against its provisions, has been in the thick of controversy ever since it was passed by the Rajya Sabha on November 26.
The members of the community largely rejected it as a vague, misleading document that appears on the surface to be empowering them but lacks specifics, relies on a flawed definition of who is a transgender, and guarantees entitlements but makes them contingent on the sensitivity and efficiency of the bureaucracy.
In the Bill, a transgender is defined as “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 sociocultural identities as kinner, hijra, aravani and jogta ”.
Apart from the fact that there is an apparent overlapping of many identities, all having been clubbed under the one umbrella of a transgender, what has rattled and disturbed the members of the community is that the Bill envisages a district screening committee that will have the authority to determine whether or not a person would be entitled to the provisions bestowed to transgenders.
The Bill stipulates that the district magistrate will issue a gender identity certificate after considering the recommendations made by the screening committee. This is at the core of the community’s disappointment with and grievances against the Bill. Advocates of transgenders’ rights and members of the community ask if they have to depend on bureaucratic nod for access to basic rights, what purpose would that serve?
Other provisions of the Bill include prohibition of discrimination against transgender persons in educational institutions and government establishments and while renting or purchasing property, receiving health care and using public services.
The Bill talks of introducing penalties for causing harm of any kind, including physical or sexual abuse, to a transgender person. It says that such attacks, injuries, discrimination or atrocities will be punishable with detentions from six months to up to two years.
National council for transgender persons
The Bill also recommends the setting up of a National Council for Transgender Persons that will be tasked with providing inputs and suggestions to the government for the formulation of policies for the community. The council will cater to the grievances of community members and, among other things, monitor the progress made in implementing the overall provisions envisaged in the Bill. The Bill envisions a comprehensive insurance scheme for the members of the community which will cover medical expenses for sex reassignment surgery, hormonal therapy or any other issues relating to health and medical conditions.
The Bill has a history spanning over five years. The idea germinated when, in 2014, in National Legal Services Authority (NALSA) vs the Union of India , the Supreme Court recognised the rights of transgender persons and the importance of according them the right to decide their gender identity. Members of the community, hence, are rightly pointing out that by giving a district magistrate the authority to decide their identity, the Bill violates the fundamental objective of the Supreme Court judgment that necessitated its conceptualisation and formulation in the first place.
Following the court verdict, Tiruchi Siva, the Dravida Munnetra Kazhagam (DMK) Member of Parliament, introduced a private member’s Bill on transgender persons’ rights. It was passed by the Rajya Sabha in April 2015 and then transmitted to the Lok Sabha. However, the government introduced its own edition of a Transgenders’ Rights Bill in August 2016 in the Lok Sabha. It was from this point that the government’s Bill started to draw criticism from members of the transgender community on various counts but in particular for its insensitive definition of a transgender as someone who is “neither wholly female nor wholly male”.
The Bill was then sent to a Parliamentary Standing Committee for consideration and scrutiny. Significantly, the committee report, which was submitted to the government in July 2017, was rejected. In December 2018, with 27 amendments made to the Bill, including a revision of its definition of a transgender, it was finally passed by the Lower House. Since the Rajya Sabha had not passed the Bill until the time of the dissolution of the 16th Lok Sabha earlier this year, it lapsed.
After the Bharatiya Janata Party (BJP) came back to power in May, the 17th Lok Sabha passed the Bill again on August 5. As on the same day the special status of Jammu and Kashmir was revoked and the State was bifurcated into two Union Territories, the new development overshadowed discussions on the Transgender Bill, and there was virtually no debate on it. Members of the community have criticised this lack of scrutiny of the Bill.
On November 20, the Minister of Social Justice and Empowerment, Thawar Chand Gehlot, tabled the Bill in the Rajya Sabha. Several opposition members raised serious objections to the lacunae in it and demanded that there be a vote for sending the Bill for scrutiny. Among the drawbacks they highlighted, of particular gravity was the fact that while the Bill talked of penalties for sexual abuse, it did not provide for extensive penalties for serious crimes such as rape of a community member. Trinamool Congress MP Derek O’Brien was vocal in his rejection of the Bill in its current form. “The message is, rape a woman; yes, very bad; rape a child, worse; but, the transgenders, these people are on streets, they are begging, they are under high risk, and what is this Bill that we are passing?” he asked.
However, the opposition’s demand for scrutiny was rejected by the Upper House in which 74 members voted.
In all, 55 MPs cast their votes in approval of the Bill. Although the Bill passed the floor test on that day, the transgender community has repeatedly drawn attention to the fact that a Bill of such wide-ranging import on their identity and fate had ratification from only 55 MPs.
Transgender rights advocates are unanimous that although the Bill appears to be empowering and striving to end discriminatory practices against the community, it fails to give a clear insight into what constitutes discrimination.
Its provisions regarding punishment for discrimination against transgender persons are also not well defined.
Legislative misadventure
Meera Sanghmitra, one of the national conveners of the National Alliance of Peoples’ Movement, described the passage of the Bill as “yet another egregious legislative misadventure” of the NDA government. She told Frontline : “Nothing could be a greater shame and sham than that such a violent piece of law was passed on the 70th anniversary of the Indian Constitution. It takes away the inalienable right to gender self-identification as guaranteed by NALSA judgment of the Supreme Court.”
If a transgender person undergoes a sex reassignment surgery, critics point out, it is unfair to make it obligatory on that person to procure another certificate from the district magistrate attesting the change of gender identity. The Bill stipulates that the district magistrate will make an assessment on the correctness of the medical certificate issued by the Medical Superintendent or Chief Medical Officer. There is dismay over the failure to mention any reservation in the education sector and in employment although these are where the community members suffer maximum discrimination and bullying.
Adityan, a transgender, told Frontline that the provisions appeared hollow given that there was no direction on how to end discriminatory practices. “It talks of giving us guarantees, but there are no legal provisions for reserving berths for community members in education and employment sectors where we are most deprived,” he said while sharing his anguish over the flawed understanding of the Bill on who a transgender is. “The Bill has got the meaning of a transgender wrong. It clubs together intersex persons, queers and transgenders. There is no conceptual understanding of the variations in gender. That we are required to collect a certificate of our identity from a district magistrate is bizarre, to say the least,” he said.
Meera Sanghmitra said it was outrageous that the Bill prescribed only six months’ to two years’ punishment for perpetrators of sexual violence on transpersons as against seven years’ punishment in the case of sexual violence on cisgender women, thereby legislating a secondary class of citizenship. “The Bill stands as a testimony of the contempt the current government has for the transgender community and its obvious lack of commitment to ensure justice to those who are perpetually marginalised,” she added.
Protests against the Bill have already begun. On November 27, the transgender, intersex, gender-conforming communities and their allies within the LGBT movement and outside staged a protest in New Delhi against what they called the “draconian” Transgender Persons (Protection of Rights) Bill. In a press conference that followed the protest, community members appealed to President Ram Nath Kovind to turn down the Bill. They also said that protests and sit-ins would continue in major cities such as Chennai, Bengaluru, Madurai, Kolkata, Mumbai, Coimbatore, Hyderabad and Pune. The option of challenging the Bill in a court of law is being considered.
Grace Banu, activist and founder-director of TransRightsNow collective, said: “This Bill is not for us. It does not even provide a correct definition for a transgender person. They held consultations with the community but never included any of our suggestions. And now they have gone ahead and passed the Bill despite considerable opposition from the community.”
