New Delhi: The Modi government has brought in the Transgender Persons (Protection of Rights) Bill with the stated intention of redressing the concerns of a community that has long been discriminated against and marginalised.
But members of the community say the bill overlooks several grievances, pays lip service to the ostracism they face, and makes few provisions to uplift them.
They lament the absence of affirmative action and note how the government’s definition for transgenders confuses this identity with another from the vast gender spectrum. The “legally ambiguous” nature of the penalty for rape has been pointed out as well.
The government, however, has defended the provisions. Union Minister of Social Justice and Empowerment Thaawarchand Gehlot told ThePrint that the ministry consulted many associations and individuals of the transgender community in drafting the legislation.
“I personally met people from the community at least a hundred times,” he said. “I also met the leader of the community, Laxmi Narayan Tripathi. The two (controversial) provisions of the earlier bill which criminalised beggary and (pertaining to the screening committee) have been removed as per the requests.”
The debate will continue as the bill is presented in the Rajya Sabha, where opposition parties like the Congress, the Dravida Munnetra Kazhagam (DMK) and the Trinamool Congress are likely to oppose it, as they did in the Lok Sabha.
On the conclusion of this debate rest the aspirations of a community that has struggled for social recognition for centuries.
In a bid to understand the grievances transgenders have with the bill, ThePrint dives into the legislation and speaks to members of the community.
Running into 12 pages, the Bill discusses the need to ensure the right to residence for the trans community, prohibition of discrimination, inclusive education, protection at the workplace, and healthcare, but doesn’t list the exact steps to be taken.
This mandate has instead been given to state and central governments, with a ‘national council for transgender persons’ outlined to advise the administration on policy and redress the community’s grievances, among other things.
The bill was passed in the Lok Sabha on 5 August, the same day that the government presented the resolution and bill that abrogated Article 370 and bifurcated Jammu & Kashmir into two union territories.
By coincidence or design, as the two bills were presented before Parliament, the government referred to both J&K and the transgender community as “abhinn ang” or “inseparable parts” of the country.
The bill defines a transgender person as “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,
genderqueer and person having such socio-cultural identities as kinner, hijra, aravani
Here lies one of the main grievances of the community, that the definition mixes trans issues with those of the intersex community.
While trans people are identified as those who feel they were born in the wrong body, intersex are those born with physical characteristics that do not conform to the gender binary.
By including intersex in the definition for transgender, the government is essentially erasing the intersex identity and the long history of medical violence against them, said Esvi Anbu Kothazham, a Mumbai-based transgender who uses the pronoun “they”, a practice among genderqueers, people who don’t identify as either simply male or female. And identify outside the binary.
One of the intersex community’s most widely-recognised demands is to end non-consensual surgeries on children, which the bill does not address. “Not all intersex people identify trans,” they said.
“The essential point is for the state and society to recognise sex and gender as separate,” Esvi added, “And that there are as many variations in sex characteristics as there are in nature, and as many gender identities as there are people.”
Though used interchangeably colloquially, sex and gender spell different meanings in conversations on gender identity. While sex refers to biological identity, gender is wider in scope and includes personal perceptions.
‘Rights not discussed’
Delhi-based criminologist Sai Bourothu said the problem with “this bill is that rights have not been discussed”.
According to her, since there is already a law to prevent discrimination, any special law crafted for the community should elaborate on the mechanism to punish violations, which the bill does not.
“It is actually our worst nightmare come true because the bill only talks about regulation and re-regulation of the bodies of trans people, and nothing about their rights,” she added, “Transgenders are seen as passive recipients of a benevolent state.”
For Esvi, too, the main problem “with this bill is that it is not based on the principle of self-determination”.
Esvi was referring to a provision that empowers district magistrates to issue certificates of identity to transgenders, which activists allege strips individuals of their right to self-determine their gender identity.
“What is being done is that the government is trying to legislate without taking into consideration the history of marginalisation and discrimination which the transgender community has faced,” they said, “It is 2019 and our community has nothing.”
Bouruthu said many in the community thought they would be allowed to declare their gender in a personal affidavit. Another problem, she added, is that this provision only allows a person to identify as transgender. To identify as either male or female, an individual would have to first undergo sex reassignment procedures.
The bill, she said, does not talk about healthcare aid either, or whether the cost of reassignment surgery is covered under the bill.
‘No provision for affirmative action’
Sowmya Gupta, a deputy programme manager at Humsafar Trust, which works with the LGBTQ+ community, pointed to the penalty for rape in the bill: six months to two years.
Bouruthu said the logic of legislators here was that the bill is over and above Section 375 of the Indian Penal Code, which criminalises a woman’s rape by a man, and sets out a maximum punishment of life imprisonment.
“The problem is that there is absolutely no precedent to include trans people under Section 375 and time and again we have been told that it is not a gender-neutral law,” Bouruthu added, “So, the question is, how will this be judiciable?”
“It is important to understand that the bill within itself is just the basic structure,” she said. “However, how it will be implemented is very different, and, frankly speaking, will be very problematic.”
“The main problem goes a lot beyond this bill, which is that India has approximately 4.88 lakh transgender people and the only data source is the 2011 Census,” added Gupta.
“That is a data gap of about eight years,” she said, adding, “There is very little information on what the income sources, education level, social conditions and economic status of the trans community are. It is important to get the data and then make a policy or law.”
Another problematic provision for members of the community is one that allows courts to put up a trans person at a rehabilitation centre if their family refuses to care for them.
The concept of rehabilitation homes, said Bouthoru, is not elucidated in the bill, which doesn’t state their nature or the training that will be given to employees.
“In India, rehabilitation homes are not very different from prisons,” she added.
Esvi also noted the absence of any provision for affirmative action. “The main point is that we need a comprehensive reservation policy — in education, employment and political representation, which addresses the needs of all sections of the transgender community,” they added.
The other issues which have been highlighted are: The presence of only a national-level council for the trans community, with no such agency at state or district level.
It is in light of these grievances that many activists labelled 5 August ‘Gender Justice Murder Day’.
Minister Gehlot, however, said the bill would serve its purpose. The government had drafted a very good bill that will help bring the transgender community into the mainstream, he added.