The Transgender Persons (Protection of Rights) Bill 2018

Lok Sabha passed a bill seeking to empower the transgender community by providing them a separate identity.

• The Transgender Persons (Protection of Rights) Bill, seeking to define transgenders and prohibit discrimination against them, was introduced in the Lok Sabha two years ago.
• Amid din, five members participated in the debate, questioning the provisions of the legislation.
• The amendments moved by the government, along with some others moved by the opposition members, were considered. Union Social Justice and Empowerment Minister Thawar Chand Gehlot said that the Bill was sent to a standing committee and the government has accepted its 27 amendments.

Brief History of Transgender in India

Numbering approximately 4,90,000 as per the last count (2011), transgender people in India are perhaps one of the most visibly invisible population in the country. Historically, Indian society has been tolerant of diverse sexual identities and sexual behaviours. The “hijra” community evolved to form a unique subculture within the Indian society, existing alongside the ubiquitous heterosexual unit of the family. They had cultural and social significance across the country in various avatars. The same is evident in Indian mythology and ancient literature such as the Kamasutra, or the epics such as the Mahabharata, in which the transgender community has been portrayed with dignity and respect.

However, transgender people have been increasingly recognised as one of the most socio-economically marginalised communities in the country.

• Since the late 19th century, they have been pushed to the margins of society, and have lost the social-cultural position they once enjoyed.
• Often shunned as a menace to society, they are now only visible on the streets and localities where they are found begging, never as a part of the mainstream.
• They are subject to extreme forms of social ostracisation and exclusion from basic dignity and human rights. They remain highly vulnerable to gender-based violence.
• As a direct result of their acute mistreatment, vilification, ostracisation and dehumanisation, they also remain highly vulnerable to fatal communicable diseases like HIV-AIDS.
• The typical lifecycle of a transgender person in India can, perhaps, be construed as one of the most painful. Most often, boys who do not conform to the gender construct binary in our society leave, or are forced to leave their families, and live in vulnerable conditions. More often than not, these children or young individuals begin their journey alone and in search of individuals of their kind, a journey that is marred by unspeakable hardships and abuse.
• Despite laws, policies and their implementation, the community continues to remain quite marginalised and highly vulnerable. We have numerous examples of higher education institutions providing quota and giving special consideration to transgender people, but the takers remain few and far between. This is mostly because the school education of most transgender people either remains incomplete or non-existent. The lack of basic schooling is a direct result of bullying and, hence, transgender persons are forced to leave schools, which remain unequipped to handle children with alternate sexual identities.

1st Acceptance – As “others” during Elections

In 2009, it was brought to the notice of the Election Commission that some voters weren’t getting registered as they refused to declare themselves as male or female — the traditional gender binary, earlier found on voter registration forms to be filled in order to get registered as a voter. This is especially significant for the local body elections in constituencies which are reserved for women.

As a result, in November 2009, appropriate directions were issued by the EC to all provinces to amend the format of the registration forms to include an option of “others”. This enabled transsexual people to tick the column if they didn’t want to be identified as either male or female. This decision of the EC also went a long way towards opening the nation’s eyes to the realities of a deprived community that still continues to be at the margins.

2nd Acceptance: National Legal Services Authority Vs. Union of India (2014)

The Supreme Court in National Legal Services Authority Vs. Union of India (2014) recognised them as the “Third Gender”. In the landmark ruling, Justice K S Radhakrishnan, who headed the two-judge bench, observed that “recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue”.

Only a year after the verdict, it was encouraging to see India’s first transgender mayor of Raigarh, Chhattisgarh, Madhu Kinnar, elected to office, in 2015. The Transgender Persons (Protection of Rights) Bill, 2016, was passed in the Rajya Sabha.

What were the objections?

Lack of proper definition for transgenders: The amendments passed on Monday include a change in the previous definition of transgender persons as “neither wholly female or wholly male”, which was criticised as being insensitive. The new definition terms a transgender person as one “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani and jogta”.

No provision for self-determination of gender: Instead, the bill envisions a district screening committee which will be invested the power to certify people as trans or not. A person who wishes to transition from one gender identity to another will be certified as male/female only after a gender reassignment surgery — in effect, turning an issue of personal identity into a medical procedure, and making vast swathes of marginalised persons dependent on the whims of an often hostile bureaucracy. In fact, the Nalsa judgment had specifically laid out that “any insistence on surgery for declaring one’s gender is immoral and illegal”.

No reservations: The Supreme Court, in the landmark April 2014 NALSA judgment, had issued a directive “to extend all kinds of reservations in cases of admission in educational institutions and for public appointments” by treating transgender persons as socially and educationally backward classes. They were to be given reservations under the 27 per cent OBC quota, a suggestion that was also endorsed by the National Commission for Backward Classes in its recommendations to the Social Justice Ministry in 2014.

Criminalises begging: To make matters worse, the Bill criminalises begging, thereby targeting transgender persons who rely on begging for sustenance. Such provisions disregard the lived realities of transgender persons for whom begging often is the last resort. In fact, provisions such as these could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will. Such harsh measures of detaining marginalised individuals under the garb of rehabilitation have also been criticised by the Delhi High Court in Harsh Mander v. Union of India, 2018, declaring provisions of the Bombay Prevention of Begging Act, 1959 as unconstitutional on grounds that it violates Article 14 (equality before the law) and Article 21 (right to life and personal liberty), and affects the rights of persons who have no other means of sustenance but to beg.

Sexual Harassment not addressed: The Bill fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognises rape in strict terms of men and women as perpetrator and victim, respectively. While the Bill makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.

Civil rights ignored: The Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.

Conclusion

• The need of the hour is a robust Bill with strong anti-discrimination provisions that will remedy the historical injustices faced by the transgender community, which continues to fight for the most basic rights even today.
• There is much good intention behind the welfare provisions, but social legislation is much more than high-minded clauses. It needs to be followed up with zealous implementation and framing of deadlines to achieve specific objectives.
• A multi-pronged approach is needed on a war footing in the form of mass awareness campaigns, generating avenues for dignified employment, gender sensitisation and affirmative action.

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