First as Apathy, Then as Farce: The Transgender Persons (Protection of Rights) Bill, 2016

Background

The Supreme Court judgment delivered by Justice KS Radhakrishnan Panicker and Justice AK Sikri on April 15,2014 was widely celebrated as a landmark judgment that upheld the right of trans people to self identify our gender as male, female or third gender irrespective of gender affirming surgeries or hormonal therapy. This right to self identify gender without medical interventions or certification is not unique and has international precedent in New York, Malta, Colombia, Argentina, Denmark, Italy, Ireland and Ecuador. The judgment was to be implemented in six months. As is typical in the world’s largest democracy the implementation never happened due to various departments and ministries of an apathetic government playing a lethargic game of ping pong with the judgment.

In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. Though it was passed unanimously in the Rajya Sabha, it disappeared into a Bermuda triangle situated someplace in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment put up a draft of The Rights of Transgender Persons Bill, 2015 and sought comments from the public to be sent by January 2016. Many trans led groups sent recommendations to this draft, none of which was taken into account by the Ministry when they drafted the more draconian The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2, 2016. Again, trans led groups and legal advocacy groups sent recommendations and some groups deposed before the Parliamentary Standing Committee in a bid to educate them.

On July 21^st, 2017, The Standing Committee on Social Justice and Empowerment chaired by the BJP Member of Lok Sabha, Ramesh Bais, and composed of 17 Lok Sabha Members and 10 Rajya Sabha Members, presented its 43rd report on the TG Bill 2016.

The 43^rd report on the Transgender Persons (Protection of Rights) Bill, 2016

My first reaction on reading the report was gagging, followed by laughter, frustration and sadness – in that order. Then, I kicked myself for holding onto a shred of belief that the Brahmanical state ever intended to extend any rights to trans or intersex people. Inspite of all our efforts to educate the Standing Committee, the report relies heavily on the imagination of trans people as Hindu mythical creatures like Ardhanareeswara. The report begins with “Eunuchs are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Their fortunes are determined to a large extent by their looks. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups. India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today.”

The committee believes that trans/intersex people [it is unclear who they are referring to when they use the derogatory term “eunuch”] are peculiar to the South Asian context. It’s amazing that they have missed out on the transgender tipping point in the West in-spite of the power of globalised American news! Clearly, the committee is also ignorant of the fact that in January 2016, the Karnataka government submitted to a high court Division Bench comprising acting Chief Justice Subhro Kamal Mukherjee and Justice Ravi Malimath that it will remove the word ‘eunuch’ from Section 36 A of the Karnataka Police Act. This follows a PIL that was filed by the Karnataka Sexual Minorities Forum which sought to declare Section 36A of the Karnataka Police Act as unconstitutional.

It is ironic that while using the derogatory term “eunuch”, the committee points out that the term “hijra” [used commonly as a term of self identity among many trans women] carries with it “an obvious sense of denigration”.

The report goes on to say “Eunuchs lived fairly secure lives working as domestic ‘girls’ in the homes of wealthy people and by performing during numerous ritual ceremonies. This role of eunuchs ended with the advent of the British rule and abolition of many kingdoms. Eunuchs were left with no means of supporting themselves. Hence, they exist in this pitiable condition in the Indian subcontinent“. Such conclusions lacking any sociological or historical basis wouldn’t pass muster even in the term paper of an undergraduate student in any of the universities in India. But clearly, the Ministry believes that the golden period of trans/intersex people in the subcontinent was destroyed by the British, instead of our collective disempowerment being the result of various factors like caste, patriarchy, state apathy, transphobia, lack of awareness,public prejudices etc in addition to the criminalising laws of the colonial empire and the nation state. In a couple of days, the Indian Brahmanical state will celebrate 71 years of independence, but still not take responsibility for the condition of its own citizens.

A summary account of the Ministry’s ignorant farce

• Definition of transgender persons

The ministry has pinned down the definition of transgender persons as –

(A) neither wholly female nor wholly male;
or
(B) a combination of female or male; or
(C) neither female nor male.

The portion of the draft bill which included a definition of “those whose sense of gender does not match with the gender assigned to that person at the time of birth and include trans-men and trans-women, persons with intersex variations and gender-queers” has been struck down by the Ministry. They cite the reason that any person could claim that their gender doesn’t match that which is assigned to them and the screening committee would have no way to judge or certify.

They claim that widening the scope of the definition would open it up to misuse! Why any person would fake being a trans person given that there are no real welfare schemes being proposed and given the many social disabilities that come with such an identity is indeed baffling. 

• Process of issuing gender identity certificates

A trans or intersex person would have to apply to the District Magistrate, who, on the recommendation of a district screening committee following a physical examination [constituted by the Chief Medical Officer,District Social Welfare Officer with 5 years experience working with trans communities/renowned person in the field of transgender welfare in that district, a Psychologist or Psychiatrist, a representative of transgender community and an officer of the appropriate Government to be nominated by that Government] will be certified only as transgender. On the basis of this certification, it is proposed that all the identity cards like voter id, adhaar card etc will be changed, effectively making us all carry the burden of being trans everywhere, all the time. Needless to say, this denies the right of trans people who identify within the binary our basic constitutional right to equality and liberty, a right that is upheld by the NALSA judgment.

The committee in the report, points out that a physical screening process is demeaning and in violation of the Supreme Court judgment and the constitution, but then, quickly backtracks and agrees with the ministry when the latter insists on this humiliating procedure as being necessary to prevent misuse.

“In case the person requires a re-issue of the certificate after gender affirming surgeries, on production of certificate from a competent Medical Officer regarding their SRS, the District Magistrate shall, suo-motu, issue them the revised certificate regarding their being either a trans-man or trans-woman.” On the second revision of the certificate, post surgery, the committee recommends that a physical examination need not be done again. The committee says transgender persons “no doubt, are reluctant to undergo physical examination in front of the District Screening Committee for obtaining a certificate of a transgender person in the first instance. The Committee wonder why will then the same person would apply again for a certificate and undergo the same procedure which he went earlier.” It is clear that the committee understands that physical examination is a gross violation of our bodily autonomy and that we would be “reluctant” to say the least. But still, like a school child who has no option but to agree with the authoritarian teacher, they continue to nod farcically and agree with all the regressive methods proposed by the ministry. Who would moreover, voluntarily go through this process a second time to change a certificate which is issued as “transgender only” to “trans man/ trans woman”? What practical sense does that make?

• Conflation of trans and intersex categories

The recommendation of the committee to rename the bill “The Transgender and Intersex Persons (Protection of Rights) Bill, 2016 was shot down by the Ministry which believes that “Transgender is an umbrella term which includes intersex persons also. Re-wording the title of the Bill would not serve any purpose“. The committee is quickly convinced by this view and agrees with the Ministry in the report. This, inspite of hearing a brilliant, in person deposition by Sampoorna working group team, intersex activist Chinju Ashwathi in which he patiently answered intrusive and inappropriate questions from the Parliamentary standing committee in December 2016. This, inspite of multiple attempts both in person and in writing to educate the standing committee on the differences and overlaps between trans and intersex categories.

• Definition of discrimination and grievance redressal

Though the standing committee has recommended that a definition of discrimination be included and its scope be expanded to include acts by public and private institutions and for a proper redressal mechanism to be put in place, the Ministry has cited the toothless, advisory body of the proposed National Council of Transgender Persons as the grievance redressal authority. To add insult to injury, it says “the mechanism of Indian Judicial system is robust for taking care of any violations of the Act either by a person or an Establishment.” There is a glaring absence of any laws to protect trans communities and justice under the current brahmanical judiciary is inaccessible for oppressed sections like dalits, adivasis, lowered caste/class muslims, Kashmiris fighting for self determination and trans people across caste. Given this scenario, the ministry is surely inhabiting a parallel universe to call the judicial system a “robust” one.

• Discrimination in employment

The bill says that no transgender person should be discriminated in any matter relating to employment, and provides for the setting up of a Complaint Officer in every establishment (with 100 or more persons). There was no response from the ministry on what the powers of the complaint officer would be or for bringing the private sector and unorganised sector under the purview of the bill. When asked why organisations under 100 member strength could not be brought under this provision, the Ministry opined that “It is not practically feasible for small establishments to designate a Complaint Officer. However, the mechanism of police system is robust in India for taking care of such grievances“.

The ministry thus callously brushes aside recommendations that have been feasible on paper for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. So clearly, the issue is lack of will and not feasibility. The mechanism of the police system in India is “robust” in only murdering trans women like Tara and criminalising and raping trans women. It seems like a cruel joke to call those very perpetrators our protectors.

• Retention of transgender/gender non conforming children with immediate family

The bill states that transgender children be allowed to stay only with natal families and that if the immediate family is unable to care for the child, on the order of a competent court, the child should be placed in a rehabilitation centre. The committee recommended that hijra families of adoption should be recognised as a lot of young trans people leave natal families due to violence and have only hijra families for support. The ministry however struck down the recommendation by claiming that “parallel systems” cannot be allowed to exist and that if this is allowed the bill will have no meaning for the transgender community! The ministry also further said ,”as long as Transgender Person is a child, he/she should not have a choice to reside other than the household where parent or immediate family reside as it would increase the chances of his physical and sexual abuse”. It would be naive to believe that the ministry is not aware that the most sexual abuse across genders are instances of incest within natal families. To claim that there would be increased chances of physical and sexual abuse in a matrilineal hijra system than in natal families is an improbable and ignorant hypothesis. Of course, there may be hierarchies and instances of violence within hijra families like any other, but to de-legitimise as “parallel systems” our families of choice that exist as sole survival, support systems when traditional ones have failed us miserably is brutal.

• Livelihood schemes and employment opportunities

When the Committee asked for specific schemes and programmes in the Bill which are being provided by the Government to support livelihood of the transgender persons, the Ministry replied that “it is not possible to put everything in the Bill as the same is derivative in nature”.

• Education, social security and health of transgender persons

The committee recommended a definition of inclusive education, acts that discriminate trans students in educational institutions, an obligation on the part of private educational institutions akin to Right to Education Act, 2009, educational programmes on trans issues, employment schemes, career counselling, review of medical curriculum and health insurance coverage among other things. However, there was a deafening silence from the Ministry to all these points.

• Criminalisation of begging

The bill states – “Whoever, compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The ministry voiced its concern that though “well intentioned”, this might be used to harass and criminalise trans people who beg of their own volition or due to lack of employment opportunities. The ministry however responded in an off handed manner that skill training will be given once the Bill is passed.

• Reservations under economically and socially backward category in employment and education.

The committee has mentioned this under the miscellaneous section at the end of the report inspite of it being clearly stated in the Supreme Court judgment that trans people should be considered socially and economically backward and must receive affirmative action. Several trans led groups had also asked for a caste based reservation within the proposed trans reservation to ensure the more marginalised among us are not further sidelined. But there was no comment from the Ministry for this point among many others like penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants, marriage, adoption, partnership rights etc.

• Proportionality in punishment for crimes

The bill provides for a punishment of only imprisonment for a term which shall not be less than six months but which may extend to two years and with fine for whoever denies trans persons public passage or access to public places, forces a transgender person to leave a house-hold, village or other place of residence or harms/injures/endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. In a broad sweep, the bill mentions a range of crimes,makes no mention of relief amounts or whether the crimes are bailable/non bailable. In comparison, The Criminal Law (Amendment) Act, 2013 details a wide range crimes against cisgender women and greater punishments. But this law will not protect even the trans people who identify as women if they are all certified as proposed by the committee as “only transgender”. Two days back, there were reports of a court letting off all four accused of gang raping a 19 year old trans girl in Wadgaon Budruk, Pune citing that neither sec 377 [under which the case against the accused was filed] which criminalises “carnal intercourse against the order of nature with any man, woman or animal” nor IPC 376 which is the anti rape law which mentions women as the victims/survivors is applicable to a victim/survivor who is trans identified.

The question then remains, why this farce?

 

---

Acknowledgements:
A condensed version of this article appeared in The News Minute here. Thanks to Gee Imaan Semmalar for sharing the full critique here.

Further Reading on Orinam:
Full text, community critiques and legal analyses of The Transgender Persons (Protection of Rights) Bill 2016: https://orinam.net/resources-for/law-and-enforcement/trans-persons-protection-rights-bill-2016

Full text and community critiques of MSJE Rights of Transgender Persons Bill 2015: https://orinam.net/resources-for/law-and-enforcement/msje-rights-of-transgender-persons-bill-2015

Full text and media coverage of Tiruchi Siva’s Rights of Transgender Persons Bill 2014: https://orinam.net/resources-for/law-and-enforcement/rights-of-transgender-persons-bill-2014/

Full text, media and community reviews of the Supreme Court ruling on Transgender rights in NALSA vs. Union of India and ors. 2014: https://orinam.net/resources-for/law-and-enforcement/nalsa-petition-tg-rights-india/