New Delhi: The Transgender Persons (Protection of Rights) Bill 2019 was tabled in the Rajya Sabha Wednesday. The Lok Sabha passed the bill on 5 August this year, less than a month after Social Justice and Empowerment Minister Thawarchand Gehlot introduced it in the House.
A bill for transgender rights was first introduced in 2015, by then BJD MP Baijayant Panda. The main aim of the bill was to bring the transgender community, facing social stigma and ostracism, into the mainstream.
Known as the Rights of Transgender Persons Bill 2014, it became the first private member’s bill to be passed by the Upper House in 45 years. A private member’s bill is legislation introduced by a legislator who is not acting on behalf of the executive.
Many from within the community considered the bill to be “ideal”, saying it was compatible with the National Legal Services Authority (NALSA) judgment of the Supreme Court, which gave transgenders the right to “self-identification” as male, female or third-gender, and granted reservations in educational institutions as well as in jobs.
The 2019 version of the bill, however, has not gone down well with the community. According to them, it ignores many grievances, pays lip service to the ostracism they face, and makes few provisions to uplift them.
Since 2015, the bill has gone through many changes. ThePrint takes a look at these changes, what the current bill states, and the community’s reaction to it.
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Objections to the 2019 bill
The 2019 bill defines a transgender as someone whose “gender does not match with the gender assigned to them 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 and jogta”.
One of the main objections to the new bill is that it refers to intersex and transgender interchangeably, despite the inherent differences. 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, in an interview this August.
Kothazham uses the pronoun “they”, a practice among genderqueers or people who identify themselves outside the gender binary.
Speaking to ThePrint earlier this year, Delhi-based criminologist Sai Bouruthu said the bill “is actually our worst nightmare coming true because the bill only talks about regulation and re-regulation of the bodies of trans people and nothing about their rights”.
Another provision flagged by the community is that the bill allows courts to put a trans person in 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 also fails to state their nature or the training that will be given to employees.
The community has also raised objection to the fact that the bill only provides for a national-level council for the trans community, with no such agency at the state or district level.
“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,” Esvi had said.
Bill underwent several changes
After the Rajya Sabha passed the bill in 2015, it underwent several changes — first, when the government drafted its own version and introduced it in the Lok Sabha in August 2016 as the Transgender Persons (Protection of Rights) Bill.
This version of the bill was regarded regressive and in violation of the NALSA judgment. It was then referred to a standing committee in September 2016.
The committee furnished its report in 2017, and its recommendations included housing assistance schemes for transgenders, an umbrella scheme for their empowerment, and giving each individual of the community the option to identify as ‘man’, ‘woman’ or ‘transgender’.
On 17 December 2018, the Lok Sabha passed the bill with 27 amendments.
This once again triggered severe criticism and protests across India because the bill, as it stood, overlooked the recommendations of the standing committee and suggestions offered by the transgender community.
The main objection to the bill was that it criminalised begging, which many people from the transgender community have to resort to as they are abandoned by their family. It further mandated a district screening committee, comprising a chief medical officer, among others, to issue identification certificates to transgender persons, which means the bill did not give the community the right to self-identification.
“The bill is unscientific and goes against global best practices. It doesn’t prevent but encode discrimination,” said Karthik Bittu Kondaiah, an assistant professor at Ashoka University, who had earlier testified before the standing committee.
In the wake of the protests, the 2018 bill lapsed because it could not be passed by the Rajya Sabha before the 2019 general elections. It was re-introduced in the Lok Sabha in July this year.
In an interview to ThePrint earlier this year, Gehlot defended the bill, saying the ministry consulted many associations and individuals from the community while drafting it.
“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 minister had said.
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Self identification itself is unscientific. There has never been any valid science to back that gender identity is fluid and one could self identify. The only established science is that sex is determined by the chromosome (XX or XY) and gender comes from the brain depending on the ratio of grey to white matter. And this cannot change rapidly over a few hours or days so there is absolutely no science to back the claims for self identification.
Besides there are major risks to self identification. If it gets accepted then a man can enter a woman’s restroom claiming to identify as a woman and a woman can enter a man’s restroom, a man would be able to get free alcohol or entries into pubs that have gender-based entry/pricing (which itself is a bad practice and is banned in some progressive US states: California, Maryland, Pennsylvania and Wisconsin) simply by identifying as a woman, or worse tomorrow trans people will demand that being misgendered is an offence exactly like how it happened in Canada. And since gender is self identification then one could identify as different genders at different periods of time and anyone who misgenders them would be penalized. Ofcourse, these are a few examples but there are many issues that arise from accepting the pseudoscience of “self identification” and gender fluidity.