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Forced to Live on the Margins

The proposed bill for transgender persons is insensitive and regressive.


In a move that has shocked and angered the transgender community and sexual minorities’ rights activists in India, the government has proposed introducing a bill in the forthcoming Parliament session that actually takes away the rights fought for and won by the trans, intersex, and gender variant persons’ community through struggles and litigation. The Transgender Persons (Protection of Rights) Bill, 2016 flies in the face of recommendations made by a government-appointed expert committee in 2014, the Supreme Court’s judgment in 2015 and a private member’s bill unanimously passed in the Rajya Sabha in 2015, all of which displayed greater understanding of the needs of the transgender community. Worse, the government has rejected recommendations of the Parliamentary Standing Committee on Social Justice and Empowerment’s 43rd report on the bill that criticised it for ignoring the demands of the trans, intersex, and gender variant citizens’ community.

Beginning with the very definition of the trans identity to the right to self-identify, to recognising that alternative family structures are needed by transgender persons when their own desert them, to reservations to help reverse their abysmal education and living standards and penalties to punish those who discriminate against them, the current bill is regressive. That one’s sexuality is central to human development and identity and to forming a sense of self is by now accepted. The idea that the “sex” of a person is biological while the “gender” is a social construct is not disputed. However, the bill takes none of this into consideration. It defines transgender persons in terms that would be laughable if it were not so regressive. It states: “‘transgender person’ means a person who is 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.” The transgender community has suggested that they be defined as persons who are socially, legally, and medically categorised as being either male or female, but who assert that this is not their self-identity and/or expression. Transgender people may or may not be intersex and vice versa. The intersex are defined as those individuals who have atypical sex characteristics (anatomical, chromosomal, hormonal, etc) that do not conform to the social, legal, and medical categories of being either male or female.

On the crucial aspect of determining gender identity, the Supreme Court affirmed in the landmark National Legal Services Authority (NALSA v Union of India, 2015) judgment the right of the community to self-identify without physical screenings. In fact, at present transgender persons can, on the basis of an affidavit, declare the gender that they would like to be known as. The bill does away with this right and leaves it to district screening committees comprising a chief medical officer, a psychiatrist or psychologist among others, to decide. It is not hard to imagine the harassment and bureaucratic muddles that such a provision would create. This is similar to what those who have to produce caste or disability certificates to avail of social benefits experience. Strangely, the Ministry of Social Welfare’s reply to the committee on this point says that the “Constitution of India is ‘sex blind’” and that the sex of a person is irrelevant save where it says that special provisions must be made for women!

The bill also ignores the nuances of the plight of many adolescents and teenagers such as the lack of support and understanding they face from their families. It says that no transgender shall be separated from parents or immediate family except on the order of a competent court in the interest of such a person and that if the family is unable to care for the person, the transgender should be placed in a rehabilitation centre. For long the transgender community has demanded that the definition of family should be expanded to include the Hijra or Aravani community elders, who adopt young transgender children and ensure that they are not put at risk, and that the Hijra family system is not criminalised. Similarly, the bill is silent in areas of health, affirmative action, and decriminalising activities that marginalised trans communities are compelled to undertake to eke out a living. There are also no penal provisions in the law to guard against the trans community being subjected to atrocities and to protect its members in prisons and juvenile homes.

This clearly exhibits the government’s ham-handed approach to a complex and nuanced issue. Transgender persons (Hijras or Aravanis) are shunned and ridiculed in general and only recently have been legally recognised. Their participation in political and socio-economic processes has suffered as a result and their treatment at the hands of the police and the public health system has been brutal and insensitive. This kind of bill reflects poorly not just on this government but also on our society. It should not be ignored.

Updated On : 1st Dec, 2017


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