Waves of disappointment swept across the LGBTQI community when the Transgender Persons (Protection of Rights) Bill 2016 was recently approved by the cabinet and made public on 20 July this year. The bill disregards the landmark National Legal Services Authority v. Union of India (NALSA) judgment delivered by the Supreme Court on 15 April 2014. This judgment had affirmed that transgender individuals have the right to decide on their self-identified gender.
Ostensibly aimed at empowering the transgender community, the new bill in fact dilutes several key provisions from previous versions, while injecting new language that could undermine protections extended for transgender persons in the country.
Transgender people have been at the receiving end of stigma, violence and discrimination by society on the grounds of their non-conforming gender identity. The NALSA judgment had taken cognizance of this fact and referred to gender identity as a person’s “deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.” This affirmed the right of a transgender person to have the option of choosing to identify themselves either as a “man,” “woman” or “transgender.” The judgement further went on to explain and destigmatise transgenderism as a “benign normal variant of the human experience akin to left-handedness.”
The bill is a far cry from NALSA, which was applauded for its progressive stance on gender affirmation through an individual’s self-identification. It limits an individual’s right to self-identify by defining a transgender person as someone who is “neither wholly female nor wholly male”, “a combination of female or male” or “neither female nor male.”
On 11 August, I spoke to L Ramakrishnan, the vice president of Saathii, a non-governmental organisation working to curb the spread of HIV. As we discussed the bill shortly after it was released, Ramakrishnan told me that “by defining transgender individuals in terms of combinations of ‘male’ and ‘female’, the bill conveys the impression that transgender individuals are somehow incomplete.” He further explained how such language denies the individual agency by not recognising the right of transgender individuals to identify within the gender binary, only outside of it through the “Transgender” identity available for them. So if a man wishes to transition to a woman and not a transgender, that option seems to not exist under this bill.