The nationwide lockdown in India due to the coronavirus pandemic has resulted in substantial economic loss and disproportionately affected Indians belonging to the low-income category. Members of the transgender and intersex community are among the worst-affected sections in the lockdown. These communities now also face a precarious situation.
On 18 April, the Narendra Modi government released the draft rules for the Transgender Persons (Protection of Rights) Act, 2019. And set 30 April as the last date for submission of comments. As a result of mounting public pressure, the deadline has been extended to 18 May.
The timing of commencing the public consultation process during a pandemic has rightly come under serious criticism from the community. This move shows that the Modi government has not drawn any lesson from its experience of drafting the parent law — the Transgender Persons (Protection of Rights) Act, 2019.
Further, the language of the draft rules is highly insensitive, and the proposed framework fails to account for the socio-cultural reality and diversity within the transgender and intersex community. The Modi government must suspend the consultation process on the draft rules until the lockdown ends.
Ill-timed consultative process
The Covid-19 crisis has thrown up monumental challenges for the transgender and intersex community in India. Several media reports have documented the disparities faced by the community during this lockdown.
Census 2011 had already pointed out the low literacy and employment rate within the community. The data revealed that literacy rate was 46 per cent — way below the national average — and the employment rate was as low as 38 per cent. In addition to such socio-economic conditions, the gender-variant communities are living with increased risk to their personal safety. In such times, starting a consultative process on a crucial legislation is ill-conceived.
Even worse, the government has failed to follow its own pre-legislative consultation policy, which mandates that 30 days must be given for the submission of comments to the draft law or sub-ordinate legislation. It is even more disconcerting that it would choose to go ahead with the drafting of the rules while the constitutional challenge of the parent law is pending before the Supreme Court. Already, a notice has been issued to the Union government to defend the constitutionality of the law.
Language barrier in the consultative process
India is a multi-lingual country and it is difficult to explain why, even though the Constitution recognises 22 ‘official’ languages, English continues to be used almost exclusively in the public consultation stage.
The linguistic barrier in the consultation process marginalises queer Indians who do not know English. It means that without the aid of civil society organisations, the marginalised communities do not stand a chance in participating in the lawmaking process.
Cementing a flawed-legislative framework
Earlier this year, Parliament enacted the Transgender Persons Act, 2019. Even during the drafting of the law, the public consultation process was ignored. Consequently, the Act faced criticism from the community because it went against the mandate of the NALSA judgment that directed the government to pass such a law. Similarly, the new draft rules suffer from serious conceptual flaws.
The requirement to submit a report from a psychologist to obtain the certificate of identity under Rule 4 goes against the provisions of the parent law and the NALSA judgment, which guaranteed the right to self-perceived gender identity. Under Section 6 of the parent law, the certificate of identity can only record the gender as ‘transgender’. Homogenisation of diverse identities into a single umbrella — ‘transgender’ — violates the dignity of individuals and goes against traditions of the transgender community in various parts of India. Further, an intersex person cannot be identified as a transgender person.
Nowhere in the draft rules is there any mention of the qualifications required for the psychologist. Further, there is no provision for training of public servants on issues related to gender identity and sex characteristics even though they are supposed to appreciate reports from medical experts while granting identity documents.
Rule 6 prescribes the procedure for obtaining an identity certificate for change of gender under Section 7 of the parent law. This particular rule mandates submission of a certificate with regard to the surgery. Currently, there is no medical protocol in India, with respect to gender affirmative healthcare services for transgender persons, which includes sex reassignment surgeries. Still, the draft rules do not contain any provision for engagement with the Indian Council of Medical Research or the Indian Medical Association on this issue. While Rule 10 prescribes a series of measures to check discrimination, there is no express mention of reforms required in medical education to end pathologisation of transgender and intersex persons.
The most egregious error in the draft rules is in the ‘Form of Identity Card’ as given in Form-5 and Form-6. Much like the Transgender Persons Act 2019, the draft rules have repeated the blunder of conflating intersex children as ‘transgender’. It shows that legislative mechanisms in India continue to conflate ‘gender identity’, which is a social role, and ‘sex’, which is a biological identity. This anomaly was given legislative sanction when ‘persons born with intersex variations’ were defined under the term ‘transgender’ in the Transgender Persons Act, 2019.
Ironical moment for the community
The coronavirus pandemic and the release of the draft rules have coincided with anniversaries of two significant milestones in the queer rights movement in India. On 16 April 2020, the transgender community celebrated six years of the landmark judgment of the Supreme Court in NALSA v. Union of India. The judgment recognised the right to self-determine gender identity and directed the government to come up with a comprehensive law for protection of rights and welfare of transgender people. On 22 April 2020, the intersex community celebrated the first National Intersex Human Rights Day. On the same day last year, the Madras High Court delivered a landmark judgment for intersex children in India, recognising their consent rights and the right to bodily integrity.
In a society where we are made to think about biological sex in the binary of male and female, this judgment added a new strand to our understanding of biological sex. Regardless of these milestones, it is clear equal rights are a distant reality for members of transgender and intersex community in India.
Prashant Singh is a Delhi-based lawyer and Executive Director, Srishti Madurai- LGBTQIA+ Student Volunteer Movement Gopi Shankar Madurai is the elected Intersex Representative and Executive Board Member of ILGA Asia. Views are personal.