In this article, Yashasvi Jain discusses how Transgender Person (Protection of Rights) Bill, 2018 is Not Addressing the Actual Problems of Transgenders.

The very objective of having legislation for the protection of rights of the Transgender Persons and addressing discrimination against them seems far fetched with the passing of the Transgender Person (Protection of Rights) Bill, 2018 by Lok Sabha. The Bill encompasses complex issues of gender and identity and in dealing with so, sensitivity is paramount.

As soon as the Lok Sabha passed the bill on 17^th December 2018, there has been strong opposition of the bill by the community in favour of which it has been made. The reason is quite obvious. If this Bill is passed by the Rajya Sabha, it will continue to violate human rights of people who belong to a marginalized community.

The Bill has stirred opposition in the following aspects

• The fight begins with the basic and most significant definition of transgender persons. The 2016 Bill defined a transgender person as one who is
  • (i) neither wholly female or male;
  • (ii) a combination of female and male; or
  • (iii) neither female nor male. Such a person’s sense of gender does not match the gender assigned at birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers. However, there have been significant unwelcoming changes in the definition provided in the 2018 Bill.

The 2018 Bill removes the reference to a Transgender Person as one who is:

• a) neither wholly female or male;
  • (ii) a combination of female and male; or
  • (iii) neither female nor male.
• b) whose sense of gender does not match the gender assigned at birth. It now states that a transgender person is one whose gender does not match the gender assigned at birth.  It includes trans-men and trans-women, persons with intersex variations, and gender-queers.

The 2018 Bill also includes persons having such socio-cultural identities as Kinnar, Hijra, Aravani, and Jogta. The Bill defines a person with intersex variations as a person who at birth shows variations in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from normative standard of male or female body. Even though the 2018 definition is better than the 2016 definition, it however, leaves an ambiguity in its interpretation. It also incorrectly assumes that all persons with intersex variations are transgender persons.

The 2018 Bill denies recognising the right to self identification of gender, a basic precept which is against the spirit of the NALSA Judgment in 2014. To be acknowledged as a Trans man/woman, it proposes for a complex and tedious process wherein an application has to be made to a screening committee at district level comprising five people, including a medical officer and a psychiatrist to certify a transgender person.

Also, a mandatory sex reassignment surgery has to be undergone for someone to identify as a man/ woman. This is an outright violation of the NALSA judgment directive, which read, “that any procedure for identification of transgender persons’ which goes beyond self-identification, and is likely to involve an element of medical, biological or mental assessment, would violate transgender persons’ rights under Article 19 and 21 of the Constitution” Shashi Tharoor in his letter to the Minister of Social Justice and Empowerment Thaawarchand Gehlot wrote, “Clearly the fundamental right to self-determination of gender cannot be restricted through a statutory committee.”

Thus, it can be clearly construed that the only thing required to prove a person as Transgender is himself and his sense of gender. Subjecting an individual’s identity to such a scrutiny is only dangerous as it will lead to more discrimination and harassment. Recognition of one’s gender identity lies at the heart of one’s fundamental right to dignity.

Adding to its flaws, the Bill criminalises the act of Begging. Many transgender communities function and sustain by begging, which has also become a customary ritual in the society. It is a way of life for them to dance or sing and earn money when someone is born in the family or during weddings. Even after the Court recognised the community as socially and economically backward, the State has failed to take affirmative action policies for their social security.

As a result, this community is still struggling for its share in education, employment and health care. The Delhi High Court in its recent judgment decriminalised begging on the grounds that it is the responsibility of the state to provide for means of sustenance and create job opportunities to such people.

By criminalising begging in the bill, it is nothing but depriving the transgender people to even breathe in open air. In international human rights law, discrimination on the grounds of sexual orientation and/or gender identity is prohibited.

India has ratified several human rights treaties – including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – which guarantee the rights to equality and non-discrimination. On the other hand, the Bill also does not address the issues of Marriage, Divorce or adoption.

The fight of Transgender Persons is not just against the state, but at times also against their own families who refuse to accept them and subject them to physical and sexual abuse. The Bill in this regard adds to their plight by violating their fundamental right to freedom of residence. It states that they should live with their natal family or sent to rehabilitation centers.

The bill neglects the aspect where such people confide in community belonging and to escape homelessness reside with local trans communities of Hijra, Aravani, Kothi, Jogta and many more.

There is a requirement of special assistance than rehabilitation. By using the terminology ‘rehabilitation’, it refers to a weaker section of society asking for favours. In contrast, the transgender persons are only fighting for equality by special services.

This Bill puts such community elders in danger by criminalising them.  Thereby, the Bill in many way of its own curtails the rights of this marginalised section.

The Bill is also discriminatory when it comes to offences and penalties. There are serious discrepancies in the penalties for sexual violence against transgender persons and women. Where IPC inflicts strong punishment for atrocities against women, it on the other hand only provides for a punishment of two years in case of transgender people, which is far less ( Eg. Section 376 IPC provides for 7 years of punishment for rape).

There are various other kind of atrocities that the transgender people face, and by including all of them under the mere ambit of ‘physical violence’ and ‘sexual violence’ as encompassed under the act is nothing but unfair.

In a joint statement released by Transgender, Gender non- conforming/ non- binary, Hijra, Intersex and Other Concerned Persons,  it was highlighted that, “Specific atrocities that transgender and intersex people face must be defined and strictly penalized, including forced gender conformism, hormonal treatment and/or surgeries, aversion based pseudo-psychotherapies, forced marriages, stripping, etc., as well as custodial violence, dereliction of duty by state and medical authorities, and violence in educational, residential, medical and employment. All trans people should have the right to be handled by women police as per their choice and should be held in separate cells with access to gender affirming healthcare, legal aid and education.”

In spite of recent 27 amendments brought in 2018 Bill; the major oppositions made by the Trans activists still remain unaddressed. On one hand where the Courts are constantly trying to uphold the rights of marginalised section, on the contrary, the legislature is diluting all of these rights by bringing bills contrary to its very objective.

The International Court of Justice (ICJ) in its recent statement has made an appeal to reject the problematic parts of the Bill by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under International Law.

Meera Sanghamitra, an activist with the National Alliance of People’s Movements and Telangana Hijra Intersex Transgender Samiti, said in an interview: “It took countless struggles by the transgender community and 70 years for the Supreme Court of this country to recognise the historical injustice and uphold our rights as equal citizens and now this Bill seeks to take away these limited rights as well by making a law with unconstitutional provisions, legislating second-class citizenship and further marginalising us. We seek immediate withdrawal of this Bill and an overhaul based on community consultations, during which period NALSA must be strictly implemented.”

The Bill must acknowledge gender identity as an individual’s deep and personal experience. It need not correspond to the sex assigned at birth. No sense of empowerment will be achieved if due consideration is not payed any heed. For this purpose, it is of utmost importance to incorporate community feedback.