No Country for Transgenders?

The Rights of Transgender Persons Bill, 2014, a private member’s bill piloted by Tiruchi Siva, member of the Rajya Sabha, witnessed a historic unanimous passage in the Rajya Sabha on 24 April 2015. The bill’s passage ought to be of interest to the thinking Indian for two major reasons. First, it happens to be the only private member’s bill to be passed by either house of Parliament in the last 46 years. The reasons behind its passage, and more importantly the reasons behind the non-passage of other private members’ bills, require serious study. However, at the time when the bill awaits its fate in the Lok Sabha in the forthcoming session of Parliament, it becomes pertinent to focus our attention on the bill’s content—the rights of transgender persons. The bill’s birth and life—the ideation and drafting of Siva’s bill, its Rajya Sabha passage and the uncertain future that the bill faces now has so far closely mirrored the government’s apathy while dealing with the crucial issue of transgender rights.

The Rajya Sabha passage of the bill was hoped for, but it must be admitted that it was never foreseen with certainty. This is not surprising when you are on the wrong side of history with 46 years of failed attempts to pass a private member’s bill. The bill’s passage necessitated the galvanisation of various factors which remain right in our system. The house witnessed members across parties joining hands for the bill was not supported by the government’s might, but by the hopes and prayers of India’s long-neglected community of transgender people visible on the streets but invisible to the state.

Who Is a Transgender?

A transgender is a person whose sense of gender, that is, the gender identity does not match with the gender assigned to that person at birth. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. When the process of genital development and of brain sexual development does not match the same sex, females with a male brain and vice versa can arise (Worrell 2010). However, the fear of non-conforming behaviour and the resultant hostility displayed by the state and society has resulted in the transgender community becoming the most deprived and disempowered group in Indian society; considered less than human and left to live on the margins.

This regretful state of affairs was acknowledged by the Supreme Court in its path-breaking National Legal Services Authority (NALSA) v Union of India and Others judgment of 15 April 2015, in which it upheld the right of the transgender persons to decide their self-identified gender and directed the centre and state governments to grant legal recognition of their gender identity as male, female or the third gender. The Court also made a number of other legal declarations, all of which were aimed at the upliftment of the hitherto neglected community. Furthermore, it directed the centre and state governments to examine the legal declarations made, on the basis of the recommendations of the “Expert Committee on the Issues Relating to Transgender Persons” constituted by the Ministry of Social Justice and Empowerment and implement those within a time frame of six months.

Apathetic Government

However, there was effectively nothing done by the central government even as the stipulated six months came to a close. The lack of enforcement of the Supreme Court ruling became evident as the prosecution of transgender people by the state and discrimination by society continued unabated. Even after the judgment, there have been instances of transgender persons dying following an accident, as doctors could not decide if the patient should be admitted to a male or female ward (Soumya 2015).  A Human Rights Watch release from 2015 details several instances of mistreatment of transgender people by the police. In February 2015, the Telangana Hijra Transgender Samiti reported 40 attacks on transgender people in the preceding six months. The urgency of the situation on the ground necessitated parliamentary action and became the driving force for Siva’s bill.

Private Member’s Bill

Siva’s bill which started out as the National Commission for Transgender Persons Bill during its ideation phase was soon rechristened and extended in scope to provide for the formulation and implementation of a comprehensive national policy dealing with various aspects of a transgender person’s life. The bill has detailed provisions, including but not limited to rights and entitlements, education, skill development and employment, social security and healthcare, provision of reasonable accommodation, legal aid, financial aid, prevention of abuse, violence or exploitation, rehabilitation, social inclusion and acceptance. 

The Rights of Transgender Persons Bill, 2014 was introduced in the Rajya Sabha on 10 December 2014. The discussions on 27 February 2015 and 8 March 2015 witnessed enthusiasm unprecedented on a private members’ business day as Members of Parliament (MPs) across party lines discussed the bill in detail and rallied for its passage. The unwavering support to the bill by Rajya Sabha members proved to be a game changer and in a dramatic turn of events a private member’s bill was passed by the Upper House. The Rajya Sabha speaker remarked, “It is a unanimous decision of the House. It is a good thing. It is a rare thing…” (Rajya Sabha Uncorrected Debates 2015).

An Act of Deception?

After its unanimous passage in the Rajya Sabha, the bill was transferred to the Lok Sabha. However, it did not get discussed in the monsoon or winter session of 2015 although it was listed second in the order of discussion of private member’s bills for these sessions. This delay was brought about by discussing another private member’s bill, the only one listed above Siva’s bill, for more than nine hours, about five times the usual amount of time spent on a private member’s bill discussion. The intention behind this “manufactured” delay became clear on 26 December 2015 when the website of the Ministry of Social Justice and Empowerment displayed a draft bill titled Rights of Transgender Persons Bill, 2015—a similar sounding title and text—but with a major weakening of provisions. The draft bill subsequently went through an even greater number of dilutions to become 11 pages of almost unrecognisable text demeaning the transgender community. The Transgender Persons (Protection of Rights) Bill, 2016 is an exercise in ignorance by the government, which if passed will result in the reversal of all gains made from the community’s struggle for dignity for the past many decades.

To begin with, the government’s bill gives a degrading and scientifically incorrect definition of transgender, as part male and part female or an incompletion with the binary gender as the reference point. This is in contravention to the definition of transgender provided by the Supreme Court’s NALSA judgment, the Rajya Sabha sanctioned private member’s bill and the central government’s own expert committee on transgender persons. The government bill’s definition of transgender reinforces harmful stereotypes about them that are borne out of society’s intolerance towards diverse gender expression. Furthermore, it wrongly groups intersex people under the definition of transgender, thereby confusing gender with biological sex (Orinam 2016).

The government bill’s insistence on a district screening committee to certify transgender persons goes against constitutionally guaranteed rights of equality before the law. It also violates the Supreme Court’s NALSA judgment which had upheld the transgender person’s right to decide their self-identified gender and directed the centre and state governments to grant legal recognition of their gender identity as male, female or as third gender. By not allowing for self-identification, the government’s bill aims to institutionalise the gatekeeping of transgender identities. Denying self-identification of gender attacks at the very root of human dignity. Furthermore, it turns a blind eye towards international best practices on transgender law. Countries like Ireland, Argentina, Malta, Colombia, and Denmark allow the transgender community to self-determine gender without requiring any kind of medical treatment or certification. Therefore, transgender persons must be enabled by law to change their gender to male, female or the third gender in all identification documents by filing a notarised affidavit. This has been the compelling demand of the community that we seek to empower.

Through the removal of the clauses which provided for the setting up of national and state transgender welfare commissions, the government succeeds in evading accountability as this deletion does away with the independent monitoring mechanism which would have ensured that the rights given to the community under the law are protected. The national council for transgender persons which the government’s bill envisions would be a massive bureaucratic structure without any enforcement abilities, rendering it powerless to be a protector of rights. Consequently, the government’s bill suffers from a lack of clarity on whom to approach in cases of discrimination or harassment.

The government’s bill also discards reservation in education and employment provided to transgender persons under the Rajya Sabha-sanctioned bill. These deletions also go against the Supreme Court’s NALSA judgment in which it had directed the government to provide reservation in education and jobs to transgender persons. Most transgender adolescents drop out of school due to the constant harassment by peers and school authorities mostly see their dropping out as “good riddance”. It is clear that the transgender community desperately needs special provisions to obtain education in the hostile society they live in.  It must also be noted that 2% reservation in jobs for transgenders is not only crucial but practical too. It would not bring the total reservation above the 50% cap prescribed by the Supreme Court, as reservation given to transgenders in the private member’s bill is in the nature of horizontal reservation which would benefit people across castes, the type of reservation that is currently provided in the Persons with Disabilities Act, 1995.

Section 13(1) of the government’s bill necessitates that no transgender person shall be separated from their parents or immediate family. This violates the right of transgender persons to live independently or with their adoptive family. It also fails to acknowledge the fact that violence is experienced by the transgenders within their biological family. Section 19(a) of the government’s bill which criminalises “enticing” a transgender person to indulge in the act of begging is another provision that is prone to misuse by the law enforcers (Orinam 2016). Furthermore, the bill does not guard against police violence although cases of physical and sexual violence by the police against transgenders have been well-documented (PUCL 2004). Thus the government’s bill attempts to target the wrong people while threatening to destroy existing community support systems available to transgender persons. The government’s bill also avoids discussing the pertinent issues of the right to marriage, inheritance and adoption, among others.

The drafting of the government’s bill was done in an undemocratic and uninterested manner. The time allotted for consultation and feedback was painfully inadequate—the extremely short deadline of 10 days for stakeholder consultation was extended by a meagre 10 days in response to the community’s request for its extension by some months. The detailed comments that the transgender collectives managed to send nevertheless have been completely ignored by the government. During the inter-ministerial consultation process which happened afterwards, none of the ministries except the Social Justice Ministry, which is in charge of the bill drafting, cared to send in their comments (News Minute 2016). This is the extent of negligence displayed by the government even though the implementation of an effective law on transgender rights necessitates the active involvement of more than half a dozen ministries. All this clearly depicts the government’s hypocrisy and a trivialisation of the issues of the marginalised—which is neither new nor surprising.

The government has in a way “censored” the most empowering and hence essential provisions from the Rajya Sabha-sanctioned private member’s bill to frame their bill. This reminds one of the instances where cuts of similar nature have been administered on comprehensive initial drafts of government bills which became a mere shadow of their former selves by the time they reached their later drafts: The Rights of Persons with Disabilities Bill, 2014 and the Road Transport and Safety Bill, 2014 are some such recent examples.

The Road Ahead

The Lok Sabha discussion on Tiruchi Siva’s bill has so far been loaded with factual inaccuracies and logical fallacies in the apathetic statements made by ruling party legislators. During the discussion on the bill, on 29 April 2016, a Bharatiya Janata Party (BJP) MP made the following statement:

But the transgenders take poor children with them and later make them transgender through surgery. This is [sic] huge criminal racket. Even their family members do not accept them afterwards. Right now our learned colleague was pleading for reservation to them. If it is done, this crime will further escalate. This way, unknowingly, we would be doing great harm to the society. (Lok Sabha Synopsis of Debates 2016)

The MP went on to say that no law should be enacted in haste unless society accepts the transgender, paying no heed to the community’s deplorable situation and oblivious to the fact that laws criminalising discrimination must drive social change when it fails to happen on its own. The discussion also witnessed other instances of naming and shaming of the community with arguments being made referring to the transgender community’s “criminal activities” (Lok Sabha Synopsis of Debates 2016). Apart from being revoltingly naive, these belittle the crime and violence the transgender people face all their lives, often from the law enforcers themselves.

At present, the government is attempting to push aside a comprehensive bill which was unanimously passed by the upper house, to make way for their bill which is nothing more than an eyewash. No number of amendments can redeem the government’s bill which seems to have been envisioned by its creators to be a worthless addition to the statute books; creatively protecting the status quo and in the process, violating the rights of the community it vows to protect.

However, the Rajya Sabha-sanctioned private member’s bill will be discussed in the upcoming parliamentary session and put to vote. This is the opportune moment for us all to acknowledge through our actions that development is measured, as much if not more, by improvements in human dignity as by improvements in the country’s gross domestic product (GDP); for legislators to pay heed to Gandhiji’s teaching and act so that the weakest may benefit from their actions; and for the transgender community and activists, to organise and agitate so that no stones are left unturned in enacting the most comprehensive law that would enable the lives and aspirations of millions of transgenders for generations to come. Various sections of the transgender community have already expressed their contempt for the government’s bill preferring to call it the Transgender Persons (Decimation and Violation of Rights) Bill, 2016 instead of its present name (India Resists 2016).

It is terrible and unacceptable in a modern society that a section of its people is left with no option but to beg or engage in sex work for living; that they are by birth vulnerable to human trafficking. This shows us how miserably we have failed as a society and the state as the protector of individual rights and autonomy. It is our mindset that has imprisoned them and it will require a freeing up of our minds to free them.

References

Human Rights Watch (2015): “India: Enforce Ruling Protecting Transgender People,” 5 February, https://www.hrw.org/news/2015/02/05/india-enforce-ruling-protecting-transgender-people.

India Resists (2016): “The Coalition of Transgender Collectives of the Transgender Community of Telangana and Andhra on the New Transgender Person’s Bill,” 27 August, http://www.indiaresists.com/coalition-transgender-collectives-transgender-community-telangana-andhra-new-transgender-persons-bill/.

Lok Sabha Synopsis of Debates (2016): Budget Session, 29 April, pp 22–23, http://164.100.47.132/Synop/16/VIII/Sup+Synop-29-04-2016.pdf.

National Legal Services Authority (NALSA) v Union of India and Others (2014): Supreme Court of India, Writ Petition (Civil) No 400 of 2012, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf.

News Minute (2016): “At Inter-ministerial Consultation, Only Social Justice Ministry Gives Inputs on Transgender Rights Bill,” 20 April, http://www.thenewsminute.com/article/inter-ministerial-consultation-only-social-justice-ministry-gives-inputs-transgender-rights.

Orinam (2016): “The Transgender Persons (Protection of Rights) Bill 2016,” 5 August, http://orinam.net/resources-for/law-and-enforcement/trans-persons-protection-rights-bill-2016/.

People’s Union of Civil Liberties (2004): “Human Rights Violations against the Transgender Community: A PUCL Report,” January, http://www.pucl.org/Topics/Gender/2004/transgender.htm.

Rajya Sabha Uncorrected Debates (2015): Budget Session, 24 April, p 88, http://164.100.47.5/newdebate/235/24042015/Fullday.pdf.

Soumya, Elizabeth (2015): “Indian Transgender Healthcare Challenges,” Al Jazeera, 18 June, http://www.aljazeera.com/indepth/features/ 2014/06/healthcare-distant-india-transgenders-201461882414495902.html.

The Rights of Transgender Persons Bill (2014): Bill No XLIX of 2014, http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/trangder-E.pdf.

Worrell, L A (2010): “Sexual Differentiation of the Brain Related to Gender Identity: Beyond Hormones”, Faculty of Medicine Theses (Master thesis), Utrecht University Repository, http://dspace.library.uu.nl/handle/1874/182733.