ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
-A A +A

Where the Transgender Bill Fails

Affirmative action is urgently required to safeguard the rights of the transgender community.

 

Recently, the National Human Rights Commission (NHRC) conducted the first-ever nationwide survey of the transgender community in India and found that 92% of the people belonging to the community are subjected to economic exclusion. It is profoundly absurd that we think of ourselves as inhabiting a “modern” world, and yet there exists a sizeable community of people who are structurally ostracised and denied the fundamental right to a livelihood. Often, they have to either resort to—or are forced into—begging or sex work since they remain socially circumscribed from other forms of employment. The primary crisis faced by the transgender community is a denial of sexual citizenship. According to the NHRC data, 99% of the transgender community in India have faced social rejection. Transgender persons cannot inhabit public spaces and command the same respect that a heterosexual cis-man would receive from his fellow citizens because their bodies themselves are stigmatised presences. The transgender community occupies a very specific intersection among marginalised communities that makes them uniquely vulnerable to sexual violence and medical neglect. Largely, they are estranged from their families, which removes them from one of the most primary forms of social legitimacy. As per the NHRC survey, only 2% of transgender persons in India live with their families.

The Transgender Persons (Protection of Rights) Bill, 2014 was an attempt to correct this, and provide the transgender community with opportunities. The bill, which was being debated in Parliament in August, has gone through several revisions. However, as it stands now, the bill has neglected to incorporate two crucial recommendations made by a standing committee to review its provisions in 2017. The first recommendation made a case for reservation for transgender persons in educational institutions and for jobs. This sort of affirmative action can ensure that the problem of economic exclusion is addressed.

The second recommendation argued for a legal recognition of the rights of transgender persons to marriage and partnerships, which is difficult in a country that largely recognises only two genders. Indians have stubbornly stuck to the gender binary as a basis for defining their sociocultural reality. The politics of exclusion that the transgender community suffers is rooted in a hegemony defined by the gender binary. In fact, one of the primary problems that the transgender community had with the first draft of the bill was how it defined a transgender person: as neither a man nor a woman. Such a definition is not only derogatory, but also betrays an inability to think outside of the gender binary by defining a transgender person in negative terms, as someone who is not of an established and accepted gender. Fortunately, the latest draft of the bill corrects this satisfactorily and defines a transgender person as “a person whose gender does not match with the gender assigned to that person at birth.”

There are already several laws that are used to arbitrarily persecute transgender persons. The anti-begging law is one such. Instituting reservations to ensure financial security for transgender persons can be one way of countering this. Section 377 of the Indian Penal Code, which prohibits “unnatural sex acts,” is also frequently used to target transgender persons. As long as Section 377 remains a criminal offence, the transgender community will be vulnerable to arrests. Consequently, they require a specific legal provision that safeguards their sexual rights and identity. In this regard, it is vital that the second recommendation to ensure legal recognition of partnerships and marriage be included in the bill. The bill also fails to define in specific terms, what counts as discrimination against a transgender person. So, although the bill has been regarded as progressive, it falls short of addressing the central problem of extending sexual citizenship to transgender persons.

It has been suggested that any central legislation made to safeguard the rights of the transgender community in India ought to follow Tamil Nadu’s example. In 2004, Tamil Nadu established a welfare board specifically for transgender persons. The state offered basic affirmative measures like concessional housing and vocational training centres, in addition to which free sex realignment surgery in specific government hospitals was also offered. In August 2018, Kerala became the second Indian state to offer ₹2 lakh to transgender persons for sex realignment surgeries. This is the kind of support that the transgender community in India urgently needs from the government to be able to adequately access healthcare, and overcome the exploitation and abuse they face at the hands of dubious medical professionals.

Overall, the bill should be provisioned in such a manner that it is able to integrate transgender persons seamlessly into the fabric of everyday public life. The legal endeavour should be to support the process of normalising the presence of transgender persons in public spaces, at workplaces, and in normative domestic spaces.

Updated On : 6th Sep, 2018

Comments

(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top