Why the bill falls short of expectations of the community

Definition of Transgender

protesting against the bill in Bengaluru.

Right to self-identify

‘No reservations means no inclusivity’

Family and Transgenders

Transgender and the IPC

NEW DELHI: The Transgender Persons (Protection of Rights) Bill, 2016, which was hurriedly passed by a voice vote amid din in the Lok Sabha on Monday has come under the scanner for being regressive and discriminatory towards the Trans-community. The bill was passed with 27 amendments that were recommended to the proposed draft bill.Despite multiple interventions by the community, the bill failed to include measures which are necessary to make society more inclusive, since the community has long been shunned and denied job opportunities. Furthermore, the bill criminalises ‘begging’, which has long been the primary source of income for major constituents of the community. Hence, the bill effectively takes away their source of living without providing a sure alternative.In addition, some say the bill violates the Supreme Court’s landmark National Legal Services Authority judgment of 2014, which recognised the right of transgender persons to identify their own gender.A transgender person was, as per the original definition in the bill introduced earlier, ‘“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.”But the definition was later amended to read - “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”While the second definition is clearer, it isn’t without its own set of confusing statements. "Gender is a construct, and an internalised identity. Hence it would make more sense to state that for a Transgender person, ‘’their sense of gender doesn’t match the gender assigned to them at birth’’. Why do I need someone to affirm my gender? Why are we medicalising the process?’’ argues Abhina Aher, associate director: Sexuality, Gender & Rights at India HIV/AIDS AllianceAbhina adds - "The bill assumes that an intersex person is a Transgender. This is not true. Any intersex person is free to identify with the gender assigned to them at birth, or can alternatively choose to identify as a Transgender. To impose an identity on them is illiberal and coercive.’’To be identified as a transgender, a person has to get a certificate of identity from the district magistrate, which will be issued on the basis of recommendations made by a District Screening Committee, consisting of a chief medical officer, a psychologist or psychiatrist and an officer nominated by the government, a member of the transgender community and a district social welfare officer.As aforementioned, the bill takes away a transgender person’s right to self-identify, an aspect which was the cornerstone of the NALSA judgement. ‘’It (the bill)enforces our identification to be subject to screening, which could be a harrowing experience, considering the discrimination faced by us in the society at present. I am at their mercy,’’ Abhina argues.Keeping in view the often harrowing experiences faced by the community, it would’ve been prudent to provide for them reservation in jobs and education. But this is not the case, much to the chagrin of the Trans-community. Furthermore, begging has been criminalised, and the bill prescribes a jail term of six months to two years for anyone who makes any transgender person beg. This is in variance with the practices of the Hijra gharana, which has for eons been seeking alms by going from door to door. The community feels the bill impinges on their customs and seeks to alter their mode of living without guaranteeing inclusivity in the society.Abhina speaks about how the bill does not take into account ‘adopted families’ and only talks about birth families. Many transgenders have a Master and Disciple relationship, that is essential to their traditional way of life. The bill does not take into account traditional businesses and only highlights mainstream professions that the community can, or should partake in. It effectively delegitimizes transgender community ties.Referring to the clause in the Bill that states how the State will ensure the “rescue, protection and rehabilitation” of transgender persons, Abhina opines that “trans people do not need rehabilitation, they need equality and empowerment.”Another major problem area for the community is that the demand for robust anti-discrimination clauses and proportionate penalties for sexual offences committed against transgender persons, in line with section 375-376 of the IPC was unheeded. Clauses 3 (prohibition of discrimination) and 19 (offences and penalties) of the Bill were passed without any changes.As a result, there is no effective remedy for discrimination and sexual violence will be treated like a ‘petty crime’, punishable with six months to two years imprisonment — thereby clearly violating the constitutional guarantee of equality before law, says Abhina. “Our call for a gender-neutral law with respect to rape laws has not been answered. There is no justice if a trans-woman is raped, within the law. It is discriminatory and devoid of equality.The Bill does not refer to important civil rights like marriage and divorce, adoption, etc., which are critical to transgender persons’ lives.’’With only four MPs addressing the debate which lasted less than the time allotted of two hours, the community’s perception is that there is no tone of support in the entire bill. Whether it will be passed by the Rajya Sabha or not, or will popular dissent force the government to rethink its approach, is for time to tell.