On Tuesday, minister of social justice and empowerment T.C. Gehlot tabled the Transgender (Protection of Rights) Bill 2016 in the Lok Sabha. The bill, which is a redrafted version of the ‘Rights of Transgender Persons Bill 2015’, follows the landmark 2014 NALSA judgment by the Supreme Court of India that recognized the third gender and sought to redress the inequities and rights violations faced by India’s transgender communities.
The 2015 version was widely debated in the communities. Sampoorna Trust, Telangana Hijra Intersex Transgender Samithi, LesBIT, South India Transgender Samithi, LABIA, Sappho for Equality, and Nirangal, among others—who work with gender and sexual minorities including transmen, transwomen, intersex persons and gender-queer persons—were among a clutch of organisations that sent voluminous comments and feedback to the ministry. Thereafter, the bill was taken back to the drawing board.
Here are seven things you need to know about the new bill:
1. It mixes up transgender and inter-sex
The new bill defines a transgender person as:
“A person who is—(A) neither wholly female nor wholly male; or (B) a combination of female or male; or (C) 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.”
Gender (“transgender”) and biological sex (“intersex”) are distinct categories. Neither follows naturally from the other. The bill, however, ends up conflating, incorrectly, gender with biological sex. An intersex person could identify as transgender (not all do: Think Pinki Pramanik, the national track athlete who has intersex variations but identifies as a woman) and therefore stand to benefit from this law. To say that all intersex persons are transgender, and in a way that upholds ‘male’ and ‘female’ as the only proper categories against which everything else is measured is not only demeaning, but also technically incorrect.
In its comments on the 2015 bill, Sampoorna Trust, a global network of Indian trans* and intersex persons, said: “All intersex people face acute issues like lack of access to healthcare, education, employment and face violence, stigma and discrimination at multiple levels. Moreover, there are people with intersex variations who also identify as transgender. We recommend that the bill be renamed The Rights of Transgender and Intersex Persons Bill”.
2. It doesn’t resolve the contradiction between self-identity and the need for certification by the government
As per the NALSA judgment, no one could call a person woman, man or transgender, except the person themselves. This is known as self-identification. However, the bill—both the 2015 version as well as the new one—makes a provision for a District Screening Committee led by a District Magistrate to certify a person’s third gender identity in the form of a transgender card. While the impetus for certification could well be administrative (to decide benefits under welfare schemes, and allow for change of name and gender on government identity cards, for example), it nonetheless strikes at the heart of the NALSA judgment. In other words, unless a team comprising a psychiatrist, a medical officer, other government officials and another transgender person certify that a person is indeed transgender, the person’s self-identification will not actually count. The solution that most community organisations seem to favour is a notarized legal affidavit obtained by the persons themselves, which should be enough to change identity cards and obtain a transgender card, as well. This was also proposed by the Telangana Hijra Intersex Transgender Samithi in its comments to the older bill.
3. It paves way for setting up a National Council for Transgender Persons, and gives them Rs.15 crore to start
The council will be chaired by the minister of social justice and empowerment, and will also have representatives from the ministries of health and family welfare, home affairs, housing, urban and poverty alleviation, human resources development, rural development, labour and employment and departments of legal affairs, pensions and pensioners welfare and the NITI Aayog. It will also comprise members from the transgender community and organisations working for the rights of transgender persons. Its role will be to advise the central government and monitor policies and legislation pertaining to the transgender communities.
Let’s take one example of a policy that the council could consider rolling out—pension. The Tamil Nadu Aravani Welfare Board, constituted in 2008 has a pension scheme, which allows transgender persons (with requisite identity cards) above the age of 40 to receive Rs.1,000 per month. At this rate, Rs.15 crore is only enough to pay the pension of 1,50,000 persons. According to the 2011 census, there are at least 4.9 lakh transgender persons in the country. So, not only does Rs.15 crore fall short if used only for pension (even if half are below 40 years), it also leaves nothing for other welfare schemes like free accommodation or educational scholarships, not to mention government-run awareness programmes.
4. It provides for welfare schemes, but doesn’t say how to access them
The 2015 bill clearly stipulated that “transgender persons who, by birth, do not belong to Scheduled Caste or Scheduled Tribe may be declared as Backward Class and be entitled for reservation under the existing ceiling of OBC category.” The new bill, however, drops the provision to classify transgender communities as OBC in order to access welfare schemes. In May, after a consultative meeting, transgender groups in Karnataka decided to call themselves a class minority, rather than be identified on religious or caste lines. “The government officials were confused as to under which scheme to provide us benefits. In the housing scheme, they suggested that only SC/ST transgenders could be given benefits, which triggered the debate,” Akkai Padmashali, co-founder of Ondede, an organisation working for sexual minorities, was reported as saying in the Indian Express. Odisha recently began providing welfare schemes to transgender communities under the Below Poverty Line category. Clearly, different states have different solutions, but the new bill offers none. The good news is, the intention is clear: the bill expects appropriate governments to formulate welfare schemes and programmes that are “transgender sensitive, non-stigmatising and non-discriminatory.”
5. It penalizes violence against transgender community, but excludes police and family violence
The 2015 bill recognized that violence against transgender persons occurs within the family and even by the state itself. It even asked for “amendments in IPC to cover cases of sexual assault on transgender persons, and criminal and disciplinary action against delinquent police officials in cases of violations of human rights of transgender persons.”
Cases of sexual and physical violence by the police towards Hijras, Aravanis, Kothis and Jogappas (all socio-cultural identities that can be broadly classified under the term ‘transgender’) are well documented. Members of LABIA, a Mumbai-based community organization, released a book last year titled No Outlaws in the Gender Galaxy, in which instances of violence faced by transmen, among others who don’t fit into the gender binary of man/woman, were detailed. The new bill, by contrast, is heavily watered down. It carries no recognition of who commits the violence, and what is needed to tackle it. It also drops all suggestions to amend the Indian Penal Code to counter police violence. Gowthaman Ranganathan, a lawyer with Bengaluru-based Alternative Law Forum points out another blind spot: “Though the bill says there will be penalty for certain violations, it does not say how one is to redress their grievances. For instance, which authority to approach and the procedure for seeking redressal.”
6. The bill envisions a role for family of birth, but not the family of choice
One of the most striking things about the Transgender (Protection of Rights) bill 2016 is that it does not mention, even once, the various transgender communities in India such as Jogappa, Aravani, and Hijra. For children who often don’t find acceptance in birth families because of their gender difference, these socio-cultural groups offer more than identity—they are families of choice. However, the bill attempts to re-establish the role of birth family by allowing the parent to make an application for a transgender card on behalf of a minor; stipulating that “no transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person”; and seems to undercut the role played by such families of choice all together by stating “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.” While the bill is clear that transgender persons have a right to reside in the household of their parents and other family members, it stays silent on the all-too-common phenomenon of the violence committed by family members against transgender persons, often in collusion with the police, to deny them their rights to property and inheritance, among other things.
7. The bill is silent about Section 377, right to marriage and adopt
The NALSA judgment unequivocally condemned the treatment that society metes out to transgender persons—not only do they face social and educational exclusion, violence by family and state, and censure by society, they do not have access to the same rights that others take for granted. This included the right to marry, adopt children, have a family of their own. One of the big stumbling blocks to this is of course, section 377 of the Indian Penal Code, which criminalizes consensual adult same-sex intercourse, and directly affects members of the lesbian, gay, bisexual, transgender, intersex and other gender and sexual minority groups. While the old bill alluded to amendments in the IPC, the new bill is silent altogether on this aspect of the lives of transgenders. In this, the silence is deafening.