Why Is The Transgender Bill Upsetting The Community?
The newly constituted Lok Sabha passed the Transgender Bill on Monday. This bill had been previously tabled in the 16th Lok Sabha which had passed the Transgender Persons (Protection of Rights) Bill, in 2018 but the bill did not reach the Rajya Sabha and therefore had lapsed. The Bill was passed by voice votes even as members of Congress, DMK and TMC opposed it. The Minister for Social Justice and Empowerment, Thawarchand Gehlot proposed the Bill in the LS while Minister of State for Social Justice, Rattan Lal Kataria took queries on it and responded to them.
The Bill describes a transgender person as anybody who relates to a different gender than the gender at birth. The bill allows trans-persons the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy. However, this would only hold value if that person goes through a district magistrate and district screening committee to get certified as a trans-person. Persons with inter-sex variations, gender-queer, and a person having such socio-cultural identities as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’ are also termed as Transgender in the Bill. A controversial provision criminalising begging by the transgender community has been removed from the Bill.
The Hoax Of The Screening Committee
While Kataria claims that are 27 amendments done on the previous bill that was first introduced in 2017, the trans-community strongly believes that only two recommendations have made it to the final Bill. They have opposed the Bill on several fronts including non-reservation for the trans-community, lesser punishment for the offender of sexual assault against the trans-people, etc. Trans-rights activist Raveena Bariha, member of ThirdGender Welfare Board, Chattisgarh govt. expressed her discontentment with the Bill and told SheThePeople.TV, “While there is a bit of joy knowing that the government is thinking about our community, the sad part is that the holistic development promised to us through this Bill does not come through. It is not a strong Bill.”
She elucidated on the areas where the Bill fails to aid the trans-community as she said that earlier it had a provision of district committee which has now been removed from the Bill. We protested against the screening process being used in the committee but not the committee itself. We just wanted to get rid of the screening process but they removed the committee itself. The meaning of having a committee in the district is involvement of local people and that the initiatives will be implemented in an active manner but with the committee gone now we don’t have that clarity, stated Bariha.
Activist and founder of Trans Rights Now Collective, Grace Banu spoke about the screening committee. She said, “It is true that they have removed the screening committee but it still says that if you want a transgender identity card, one can go to the District Magistrate and apply for it. After that, if one wants to change their gender from male to female or vice versa then one should go to the medical officer who will provide a gender certification—this counts as a screening committee.”
“If a trans person wants to live with their biological family or the community family, it is the court that will decide that. This is totally cruel. There are lots of trans-people committing suicide because of family discrimination every year but there is no clause to protect them. This is totally against the community and not a solution for the transgender community. If you really want to solve the issue of discrimination then why not begin from the grassroots?” she added.
The majority of the trans-community believes that the Bill does not cater to their needs and that it’s not made to help the community combat the stigma they face in the mainstream at all. Rachna Mudraboyina, Director of LGBTQI’s response, Human Rights Law Network (HRLN) reflected on the removal of the begging clause from the Bill. “There is no positive change we can see in the Bill. Even if they have removed the criminalisation of begging but they have only truly interchanged it with bonded-labour. Even with the identification of the transgender people, we won’t be declared the gender we prefer until there is an unspoken screening that happens.”
She stated that this Bill contradicts the provision of the NALSA judgment and states that even if this is passed in the Rajya Sabha then they would challenge it in the Supreme Court. She says, “It is an attack on the autonomy of the transgender community. If this Bill is passed, the entire Hijra community will be left unsettled. For the past year, the Hijra community has been asked to dissolve completely. Under the Bill, there is a separate law criminalising the hijra system under which the Gurus will be penalised and the Chelas will be victimised and will be rehabilitated.”
Under-representation of the community
Bariha elaborated on the fact that there is not a single committee at the state level. “In the national transgender council, there will only be five members. All the transgender persons of 29 states will be represented by five people max. How can five people represent the members of all states and their challenges and aspirations? Can we not have representation from all states?” she said.
She also raised the issues of validation of marriage of two trans persons and adoption by trans persons and said that there are no provisions to legalize that. Trans persons also believe that it is an injustice that sexual assault and discrimination, which form a huge part of a trans person’s life, have been narrowed down in the Bill and understated. “While a sexual assault case against an offender of a woman penalizes a criminal to at least six years of imprisonment, two years is the maximum punishment for an offender of sexual crimes against trans genders,” shared Banu.
Founder of Transgender India, Neysara agree to Banu’s claim and said, “Transgender people are denied legal personhood in India, We are sub-human. Offenses and penalties section of the bill states that any crime against a trans-person, even endangering their life (Murder) is punishable by max two years in prison. For the Indian state and society, we have always been sub-human. But via this bill, the Indian government is proudly writing on the constitution of the country that transgender people are sub-human. Trans lives don’t matter. Killing a transgender person is a petty crime punishable with max two years in prison.”
Lawyer Who Fought Section 377 In Supreme Court Speaks
Jayna Kothari fought Section 377 in the Supreme Court last year and won the battle. She represented Akkai Padmashali and the transgender community in front of the Supreme Court’s Constitution bench. Kothari said, “This development of the 2019 Bill being passed in the Lok Sabha is not a very good development since this draft of the Bill is not ideal. This is not the law that the transgender and intersex community are asking for. There are many provisions of the Bill that are extremely problematic and hence it should not be passed in this form. It should be referred to a Standing Committee so that it can be substantially revised after consultations.”
“In Section 5 and 6 of the Bill, transgender persons can make an application to obtain an identity certificate and it has to be accompanied by documents that may be prescribed and also following such procedure as may be prescribed. This is problematic because the Bill does not state categorically that medical documents to show if the person has undergone sex reassignment surgery, are not mandatory and that there will be no physical screening in the procedure.
The Supreme Court has held in NALSA Vs Union of India that a person has the constitutional right to self-identify one’s gender identity as male, female or transgender and this is not dependent on whether the person has undergone any medical reassignment. Therefore the Bill should state this clearly. By stating that a person will have to produce documents and undergo the procedure, it leaves the door open for the rules to prescribe that medical documents can be required and a physical screening procedure can be imposed,” she added about the contradiction between the Bill and the NALSA judgment.
Further, she stated that the Bill does not have any provisions relating to reservation for transgender and intersex persons in public employment and education. “Without reservation, transgender persons cannot get access to jobs and education and their integration in the mainstream will be impossible. The 2016 Bill had a provision for reservation and even the Supreme Court has directed the government to provide reservation for transgender persons but the 2019 Bill does not contain any provision on the reservation.”
If a trans person wants to live with their biological family or the community family, it is the court that will decide that. This is totally cruel. There are lots of trans-people committing suicides because of family discrimination every year but there is no clause to protect them. This is totally against the community and not a solution for the transgender community – Grace Banu
On the provisions of the Bill that will help the community, she said, “The only provisions in the Bill that can improve the situation of transgender persons are the sections on the prohibition of discrimination against transgender and intersex persons, mainly Section 3. However, this section on discrimination is weak without reservations in employment and education.”
“Section 12 of the Bill which states that no child shall be separated from parents or immediate family without a court order is also highly problematic as it does not take into account the reality that many transgender children and young persons are forced to run away from home due to the violence meted out to them. In such a situation, for the law to state that no child can leave his or her family without a court order, it would be putting the lives of transgender children in danger. Hence for all these reasons the Bill should not be passed and needs serious rethinking,” explained Kothari.
Picture credit- The Pioneer