How the Transgender Bill discriminates against the very people it claims to protect

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.

By forcing a statutory definition for what constitutes gender, the bill creates a binary resulting in a person being either “wholly male or wholly female.” This lacks all nuance for transitioning identities or those people who do not prescribe to such a binary. Tripti Tandon, the deputy director of Lawyers’ Collective—a non-governmental organisation providing legal assistance to women, children and other members of marginalised groups—said that “Non-compliance with NALSA runs throughout the text of the bill, specifically in terms of defining who qualifies as a transgender person.” For self-identity to be out of the hands of the person themselves goes against the trans-rights movement.

The NALSA had clarified that a person could have their self-identified gender identity without mandating sex re-assignment surgery (SRS). It stated that “any insistence for SRS for declaring one’s gender is immoral and illegal.” This decision was progressive and aimed at putting a halt to the egregious practices of subjecting transgender persons to intrusive medical examinations to ascertain their gender. The new bill asks that transgender identity be verified by a District Screening Committee, which would comprise a medical officer, and psychiatrist or psychologist. According to Ramakrishnan, this “opens the floodgates to widespread pathologization of transgender identity and human rights violations.”

This draft of the bill does not take the complexity of transgender identities into account. Since the law in India is based on the paradigm of the gender binary of male and female, addressing how trans persons would use certain laws should have been the major concern in the bill.

For instance, there is no clear answer to the following scenarios: if a female-born person, who holds a government job, chooses to identify as a man, will the person lose their job? Can a pre-operative transman legally marry a cisgender (whose identity conforms to their biological sex) woman or risk running afoul of Section 377? Can a transwoman legally adopt a child? Can transwomen apply for jobs for women if they identify as women and not transgender? Can the Domestic Violence Act be used by transwomen?

The bill also does not extend equal fundamental rights to transgender persons as are enjoyed by cisgender persons. A closer look at the bill exposes the inherent discrimination that would be perpetuated once it becomes an act.

Section 19(d) of the bill states that whoever “harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The bill does not specify the punishment for aggravated sexual crimes against transgender persons. Jayna Kothari, a lawyer and the founder of Centre for Law and Policy Research—a Bengaluru based non-profit organisation on public policy research—told me, “When it comes to sexual offences, the bill does not define the acts that constitute sexual offences, sexual assault or rape.” She added that it was important to provide a clear definition of rape is in the case of transgender persons. The bill’s failure to define the terms “abuse” and “endanger,” makes both the crime and its sentencing unclear. Kaushik Gupta, a lawyer at the Calcutta High Court who works on LGBTQI rights, said, “Aggravated crimes would not account for anything if the term ‘endanger’ is used so frivolously.” While the bill claims to protect the rights of transgender persons, it conflates sexual abuse with other forms of abuse, with punishments extending to just two years and an undefined fine.

The bill does little in addressing the need for the care and protection of transgender children. The only mention of children in the bill is in Section (5). This stipulates that for a certificate of gender identity, a transgender person has to approach the District Magistrate. In the case of a minor, such applications are to be made by a parent or guardian of the child. However, the bill does not take into consideration the fact that it would be highly unlikely for a parent to request for a legal transgender identity for their child given the prevalent transphobic atmosphere.

The bill should instead have had a provision that allowed a social welfare organisation, a human-rights NGO or a child-rights lawyer to make these applications on behalf of the children. There is also no mention of the role of a Child Welfare Committee (CWC) in the bill so as to address transgenderism in children. Tandon told me that the right to identify as transgender was an inherent right and not one that could only be realised after a certain legal age. She went on to say that the lack of conversation around transgender children was in violation of the fundamental rights of children with gender non-conformity and went against NALSA. When I conducted interviews with gender-rights activists, they often mentioned cases in which a transgender child had run away from home to escape abuse and violence, only to be picked up by the police, who would take the child to the CWC. The CWC, failing to recognise trans identities would dutifully direct the (in some instances, born male) child to dress and behave “like a boy” and put the child in a rehabilitation home for boys. The activists recounted terrifying stories of the abuse that gender nonconforming individuals were subjected to in such institutions. The bill’s failure to involve the CWC to address such issues is irresponsible and reeks of the inherent stigma around transgenderism. “If the bill is seeking to address discrimination then it should amend various other laws such as the POCSO (Protection of Children from Sexual Offences Act 2012) in the case of children to mention aggravated crimes sexual crimes against gender non-conforming individuals,” said Gupta.

The bill speaks of “inclusive education,” and recommends providing students with scholarships, free-waivers and textbooks. It also calls for all educational institutions to have an anti-discrimination cell to monitor discrimination against transgender students. However, it does not address the need for gender-neutral bathrooms and uniforms in schools. The inclusion of these within the school confines would reduce discrimination among students, including bullying as well as the sublimation of their gender identity.

The right of residence under Section (13) of the bill is also extremely discriminatory and conflicting with its own subsections. While the section ensures the right of transgender persons to reside in the homes of their parents or family, it contradicts itself in 13(c) by stating “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.” This section takes away the right of residence of the transgender person and mandates that the court would have the authority to take a decision in “the best interest” of the person. Nowhere in the section is the consent of the said person—regardless of their age, mentioned. This could potentially give the family the leeway to harass and discriminate against the person and exclude them from their property. It also makes the courts the moral guardians for deciding the fate of the transgender persons by sending them to a rehabilitation centre.

Gupta believed that the bill should be redrafted keeping in mind The Protection of Women from Domestic Violence Act, 2005. This act provides the aggrieved woman the right to reside in the house and removes the alleged abuser from the household. A similar clause, he said, should be included in this bill for the protection of transgender persons from abusive families.

The bill does not grapple with relevant issues like inheritance and property rights which concern transgender persons who are often banished from their families owing to their non-normative gender identity and sexual orientation and consequently, their property.  The bill does not provide for the right to marry and to adopt, thus depriving transgender persons of fundamental rights under Article 14 of the Constitution available to cisgender persons. The bill remains woefully silent on the issues of reservations for trans persons, something that the NALSA had addressed and does not introduce anti-discrimination provisions. The NALSA had recommendations that asked to develop policies and legal frameworks to avoid ambiguities and grant basic civil rights such as access to health and public services, right to vote, right to contest elections, right to education, inheritance rights, and marriage and child adoption.

Section 19(1) of the bill seeks to penalise anyone who “entices” a transgender person to beg. Spence Jones, a researcher at the Human Rights Law Network, Mumbai, believed that the bill remained deliberately unclear on legally ascertaining how “enticing” is carried out, putting Hijra gurus in danger. These gurus run gharanas (schools) which are akin to family units for Hijras and some of them beg as a traditional profession. Such a law “disregards the stigmatic nature of begging, and the sociocultural systems that keep it in place, as a last resort for transgender persons who are denied access to employment in nearly all spheres of public and private life,” Jones said. In fact, provisions such as these could give immunity to the police to exert force on transgender persons.

The application of such laws are reminiscent of the Criminal Tribes Act of 1871—which had declared around 150 tribes as criminal, giving the police wide powers to arrest and monitor their movements. As recently as 2011, the Karnataka Police Act was amended to include section 36A, “Power to regulate eunuchs.” This criminalised the Hijra community and gave the police similar sweeping powers similar to the Criminal Tribes Act, including greater surveillance and harassment. In November 2014, close to 200 Hijras in Bengaluru were arbitrarily picked up by the police and detained at the Beggar’s colony in the outskirts in Hoysalas. “The Beggar’s Colony, is an infamous ‘rehabilitation’ centre with deplorable living conditions and where unnatural deaths have been reported,” said Gee, a human rights activist based in Bengaluru. Sexual minorities remain the target of a number of laws, with charges ranging from public nuisance and theft to sex work, trafficking and begging.

The constant harassment and discrimination of trans persons has become a common narrative in their lives. This scenario needs to be combated through progressive laws and policies, which provide equal citizenship rights to persons with non-conforming gender and sexual identities by breaking the hegemonic codes of binary in law and society. This bill could have incorporated recommendations from NALSA in order to ensure equal citizenship rights to the trans community. Instead, it has ignored and trampled upon the Supreme Court’s judgement in NALSA, where it observed that the “moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions.”