This article has been authored by Anamika Tiwari, a law student at O P Jindal Global University.
Transgender persons had been a part of Indian society for centuries. They have found their place in various writings of ancient India as there had been evidence of the presence of “third-sex” who do not confirm to male or female gender.Hijras, aravanis, kothis, kinnars or sakhis, are some of the names through which transgender persons are identified. During Mughal Period, they played an important role in royal courts. They rose to prominent positions such as political advisors, administrators, generals and guardians of harems. However, their status deteriorated during the colonial rule with the introduction of Criminal Tribes Act, 1871 which included hijras who were concerned din kidnapping children and dressed like women to dance in several occasions. This made their positions more vulnerable than ever before. Even though, this act was repealed in 1952, the transgender persons still remain one of the most vulnerable sections of the society. It was only in 2011 census transgenders were recognized as the third sex.
Justice KS Radhakrishnan in NALSA case said that “Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”[i]
The parliament on August 5, 2019, the Parliament passed Transgender Persons (Protection of Rights) Bill, 2019which was most awaited by the transgender community. Even though the bill lays a broad and inclusive definition of “transgender persons”, it remains unclear about the transgender persons right to “self-identify”. The bill was passed amid chaos, without any debate on the same day when Article 370 was abrogated. Many human rights activists and transgender community in large termed the bill as “regressive” and termed the day as “gender justice murder day”. Harish Iyer, a gender rights activist said that “the bill is regressive and half-hearted.”
In 2014, the first bill on transgender rights was passed in the Rajya Sabha by Dravida Munnetra Kazhagam’s Tiruchi Siva. It was known as a private member Bill and dealt with rights of transgender persons providing them benefits in health, education sector, skill development and employment opportunities. The bill also provided protection from torture and abuses.
The Government passed its own bill in Lok Sabha in 2016. The bill was referred to the standing committee which made number of recommendations such as defining the term “persons” with intersex variations, granting reservations to socially and economically backward classes, recognition of civil rights such as marriage, divorce, partnership, and adoption. However, the bill lapsed with the dissolution of 16th Lok Sabha.[ii] The Madurai Bench of Maras high Court ban on sex normalization surgeries of intersex children and infants based on the petition filed by Gopi Shankar, an intersex person and activist to National Human Rights Commission.[iii]
Why is the Bill Problematic?
In National Legal Service Authority (NALSA) v. Union of India, the court upheld the rights of all the persons to self-identify themselves. The court ruled that hijras and eunuchs can identify themselves as “third-genders”. The court observed that the gender of a person is not based on their biological characteristics but based on their “innate perception of their gender”. No transgender person should be subjected to medical examination that would infringe their right to privacy. The court further directed the Central and the State Government to take steps for the welfare and advancement of transgender community. The Transgender Persons (Protection of Rights) Bill (2019) was supposed to be the consequence of this judgement. However, there seems to be a lot of issues attached to the bill which makes the transgender community feel that it is regressive.
The bill requires a trans person to apply for “transgender certificate” based on a person’s self-declared identity. After this the person can apply for “change in gender-certificate” through which they can get their legal genders changed to male or female. Surgery and medical documents are required for this process. This is an issue as instead of having the freedom to determine their own sexuality, the transgender persons now have to go through a certification process involving a government official and a doctor. The bill gives the power to the district magistrate to examine the “correctness” of the application and to issue the change in gender certificate. However, the bill is silent on the guidelines to determine the decision of the district magistrate. This is not only against the NALSA judgement which says that self-determination is an integral part of a person’s dignity, but is also a nightmare to people who have been waiting to change their gender as their lives will be severely affected if the District Magistrate is not convince if they are trans. This directly interferes with the bodily autonomy of a transgender person. Giving these kinds of arbitrary powers to the district magistrate goes against the aim the legislature seeks to achieve. The bill also does not say anything about the rights of a trans person having male or female gender certificate to benefit from government schemes and programs designed for transgender people. The process of certification goes against the principle of “self-determination”. The bill also does not provide guidelines for redressal with respect to the rejection of the gender change application by the district magistrate.
Another problem arises when a transgender person wants to leave their homes. The bill says that if the family of a transgender person is not able to take care of them, then the competent court can put them in the rehabilitation centre. They no longer have the choice to join the trans community as it is the court that would decide if the transgender person would go back to the family or to a rehabilitation centre. Additionally, the activists also feel that even though the inclusion of intersex people in the bill is an important step but, the bill should be renamed as Rights of Transgender and Intersex Persons Bill. Intersex people account 1.7 percent of the global population who are born with body traits that do not confirm to the societal expectation of specific genders. The member of community identifies intersex people different from the transgender people and feel that this distinction should have been included in the bill. Transgender people identify themselves different from the gender they were assigned during birth. Whereas intersex indicates diversities of gender based on their biological characteristics- ambiguity and anatomical genitalia. Intersex itself has different variations.
The bill says that the punishment/penalty in case of any assault on a trans person would range from six months to two years. This is again problematic because according to this provision even the maximum punishment of rape of a trans person would be just two years whereas the maximum punishment for raping a woman is life imprisonment and death penalty (in rarest of rare cases). Even the offenses committed on a transgender person that endangers their lives would not cost the convict more than two years of imprisonment. This provision places the offenses committed on a transgender person under the ambit of “petty offenses”. The bill states that the National Council for Transgender Persons would have only five representatives from the transgender community which seems a bit unfair representation of transgender population.
The activists say that the bill does not say about the welfare of children. Children who identify themselves as transgenders face bullying at school. The bill should emphasize on inclusive methods teachers can use at school to prevent discrimination and bullying of children at school by staffs and their peers. Meenakshi Ganguly, South Asia Director at Human Rights Watch says that “Transgender people in India should be able to live with dignity and nondiscrimination, and have equal access to education, employment, and health services.”
Transgender people have been facing discrimination for a very long time in the society. The transgender persons bill, 2019 was a much-awaited bill by the community, however, the bill fails to address various important issues and treat transgender persons as sub-humans. The bill does not lay down any specific guidelines for the treatment of transgender persons in rehabilitation centres if the court decides to send them to these centres.
The bill also goes against the international norms of legal gender recognitions. The United Nation Agencies, the World Medical Associations and, the World Professional Association for Transgender Health states separation of legal and medical process for gender reassignment. This includes the removal of evaluations of applicants for legal gender recognition by panels of psychologists, physicians, or other experts. Self-identification should be enough to get access to security, health, and other benefits.
After fighting a long battle, the transgender community is finally being heard by the society and the government. There is no doubt that these people go through a tremendous amount of struggle in their personal lives. “In India, a lot of trans people have committed suicide, most are within 25 years of age,” and therefore, we need legislations that work for their holistic development. Ashok Row Kavi, founder and chairperson of Humsafar Trust, says that “There is something wrong with the whole systemic approach towards the transgender community, which this bill is supposed to correct,” “The whole process needs to be drawn into the public health and the beneficiary system, which is missing." The laws should be implemented in such a way that it is most favorable to the transgender community and the government should make room to address genuine concern raised by the community regarding the bill.
[i] Mallapur, Chaitanya. “Why New Bill Meant To Benefit Transgender People Is Termed Regressive.” Indiaspend, August 26, 2019. https://www.indiaspend.com/why-new-bill-meant-to-benefit-transgender-people-is-termed-regressive/. [ii] Kannan, Ramya. “Why Are There Objections to the Transgender Persons Bill?” The Hindu. The Hindu, December 1, 2019. https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.ece. [iii] Ibid