The Transgender Persons (Protection of Rights) Bill, 2016 was passed by the Lok Sabha with 27 amendments. In the eyes of transgender and gender non-binary activists, this is an act of doublespeak because the Bill, if it goes through the Rajya Sabha, will not only fail to protect the rights of transgender people in India, it will actively violate these rights.
Activists from the community have condemned the passing of the Bill in its current form, and are calling on the government to withdraw it from consideration in the Rajya Sabha and instead pass the private member’s bill drafted by Tiruchi Siva in the Lok Sabha.
How the Bill will harm trans rights
Here are only some of the ways in which the Bill will harm, rather than help, the transgender community.
- Destroys the notion of self identification :-
Transgender people will be subject to certification by a District Screening Committee to be acknowledged as transgender, and those wishing to identify as either a man or a woman will need to go through gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This completely violates the Supreme Court judgment which states that the only thing needed to acknowledge a person’s gender identity is their word for it. The presence of screening committees and the need for medical certification open up a space where a transgender person’s very identity is subject to doubt until ‘approved’ by external gatekeepers, which is inherently problematic. It will also inevitably lead to more discrimination and harassment by people empowered to screen and scrutinise trans people’s lives.
- The government’s Bill infantilises trans people and places them in harm’s way by insisting that when a parent or immediate family member is “unable to take care of a transgender (sic)” – no age qualification is provided in the law – they should be sent to a rehabilitation centre. In a country where cisgender people (people who identify with the same gender identity they were assigned at birth) are free to live where they please, this is an incredibly brazen way to control the movements of trans people and make them subjects of “care” which they do not want or need.
- No legal protection against rape and sexual assault :-
The new Bill passed in the Lok Sabha does not fill that legal gap by laying out any much-needed, specific provisions or punishments to deal with the rampant issue of sexual violence, rape and assault of trans people. The Bill only states whoever “harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.”
If passed, the Act will codify that the crime of sexual “abusing” a trans person, or endangering their life, health, safety or well-being through verbal, physical or sexual abuse will be seen as merely a “petty crime”. It also means that the only law that deals directly with the crime of raping a transperson will state that this crime is punishable with a much lesser sentence prescribed to sexual crimes against woman.
In a press release by trans activists condemning the Bill, there is a detailed analysis of the many things the government’s Bill fails to do to protect trans rights. Regarding punishment for people who perpetrate violence against trans people, the release says:
“Penalties for sexual violence upon all transgender persons should be equivalent to existing penalties for sexual violence against women, while penalties for physical, verbal, emotional and economic abuse should be similarly commensurate with the punishments for such acts under existing laws. 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.”
- Transgender people’s access to healthcare is severely limited, and the Bill does not address this gap. Activists have called for free access to gender-affirming medical procedures, insurance coverage and access to the ward of their choice (male, female, or separate wards for trans people) in hospitals.
No reservations :-
In the NALSA judgement, the State and Central governments were asked to extend reservations to trans people in education and public employment. After the Bill was first made public in December 2017, activists had, then too, made it clear that one of their major demands was reservation in employment, politics and education. However, there is no mention of reservation in the government’s Bill.
The definition of transgender :-
While the Bill that was passed by the Lok Sabha on Monday did amend the definition of transgender from an earlier definition, which was more problematic, it is still not a perfect definition.
The original definition in the Bill stated that a transgender person was one was “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 trans men and trans women, persons with intersex variations and gender-queers.”
After outrage from the community over this problematic definition, the definition was amended to “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender- queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
As pointed out in a statement issued by Lawyers Collective, while this revised definition is better than the original one, a still clearer and more precise way to frame it would have been “a person whose sense of gender does not match the gender assigned at birth.” As it stands, the statement reads, this current definition is “prone to ambiguous and illiberal interpretation”.