Why Transgender Bill 2018 is a Regressive Step for Trans Rights

The trans community took to the streets of Delhi, resisting the Transgender Persons (Protection of Rights) Bill.

The transgender community protest the Transgender Persons (Protection of Rights) Bill 2018 across India.

(Photo: The Quint)

Hundreds of persons from the transgender community took to the streets of Delhi at Jantar Mantar on Friday, 28 December, resisting the draconian provisions of the Transgender Persons (Protection of Rights) Bill, 2018 that was recently passed by the Lok Sabha on 17 December and is pending consideration by the Rajya Sabha.

Congress MP Rajeev Gowda attended the protest and pledged his support for referring the Bill to Select Committee. TMC MP Derek O’Brien addressed the rally and vowed to stand with the transgender community and fight the Bill as well.

Transgender, intersex and gender non-confirming communities from across the country have together opposed the amended Bill, which apart from an improved definition of the term ‘transgender,’ continues to violate most of their fundamental rights. The trans community feel that it should more appropriately be renamed the ‘Transgender Persons (Violation of Rights) Bill, since it violates more than it protects.

The amended Bill is the latest in the series of Bills drafted after the landmark Supreme Court verdict in National Legal Authority vs Union of India (NALSA, 2014), which upheld the fundamental rights of transgender people and affirmed self-determination of gender identity. A retrograde step, it stands in stark violation of the NALSA verdict, progressive provisions of the Tiruchi Siva’s Private Member Bill (passed by the Rajya Sabha in 2015 and pending before Lok Sabha) and even the recommendations of the Parliamentary Standing Committee.

What’s Wrong With the Bill?

Except for adopting a more reasonable definition of transgender persons, the amended Bill has retained most of the problematic aspects of the previous versions.

This includes District Screening Committee for approval of gender, lesser punishments for perpetrators of offences on trans persons vis-a-vis cisgender persons; criminalisation of traditional Hijra livelihoods, conflating intersex and gender non-conforming persons with transpersons and constituting National Council instead of a Commission at Central and State level, without adequate representation of the gender-diverse community, autonomy and powers to enforce its directives.

The Problematic Screening Committee

The concept of the District Screening Committee and what it’s supposed to do, is the most problematic aspect of the Bill. It creates a two-tier system within the transgender community, wherein persons who have not had sex reassignment surgery (SRS) can only be identified as transgender and not as male or female.

That’s not all, the identification as transgender depends on scrutiny and certification by a District Screening Committee. This validation from a Screening Committee is not only completely against the letter and spirit of NALSA, but also provides immense scope for abuse.

“The whole problem of the Screening Committee emerges from the fact that the government has not understood the concept of gender itself. Gender is the innate experience of an individual, unique to every person. It can’t be approved by an extraneous agency. It takes away the very notion of gender.”

Meera  Sanghmitra, Activist, National Alliance of People’s Movements

Criminalisation of Enticement to Beg

Section 19 of the Bill states that, “whoever compels or entices a transgender person to indulge in the act of begging... 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.”

It is known that most transgenders are harassed or booked under begging prohibition laws, even when they are not begging and are merely present at public places. The clause is, thus, likely to be used against trans persons, in the garb of protecting them and jeopardises the traditional livelihood of Hijras and Kinnars.

Second Class Citizenship Continues

The Bill specifies lighter consequences and penalties for specific discrimination and assault of trans people compared to cisgender people. Penalties for sexual violence upon transgender persons in Section 19 are not equivalent to existing penalties for sexual violence against women. Penalties for physical, verbal, emotional and economic abuse are similarly not commensurate with the punishments for such acts under the existing laws.

That’s not all, the amended Bill says, that trans persons should be sent to a rehabilitation centre when their family is unable to take care of them. In a country, where the cisgender people have the freedom to live where they please, this amendment is a violation of their fundamental rights and curtails the movement of transgenders.

“The criminalisation of transgender people for begging, living away from their native home, while not offering any opportunities or reservations in employment, no anti-discrimination penalties for the kinds of discrimination that keeps transgender people away from mainstream workplaces, are other problematic aspects of the Bill.” 

Bittu Karthik, Gender transmasculine activist & member of Telangana Hijra Intersex Transgender Samiti

How the Transgender Bill 2018 Unfolded

While, it is repeatedly being claimed that 27 amendments have been made to the original 2016 draft of the Bill after extensive consultations, the transgender community is up in arms over non-inclusion of their recommendations even after elaborate meetings.

The Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill by DMK MP Tiruchi Siva and passed by the Rajya Sabha in 2015. The Bill which had been drawn up in consultation with the community, was reflective of the NALSA verdict and incorporated several progressive recommendations such as reservation in education and employment opportunities, right to self determination, special court for trans persons and more.

The Lok Sabha was expected to take up the Bill soon, but in December 2015, the Ministry of Social Justice and Empowerment came up with a draft of the Transgender Persons Protection of Rights Bill, 2016. The Bill received flak from the trans community for including none of the provisions of Tiruchi Siva’s Bill and for getting the very definition of the term ‘transgender’ wrong.

“Although there are certain aspects of the Bill which can be improvised, it would help if Tiruchi Siva’s Bill is taken as a benchmark to draft the Bill,” activist Meera Sanghamitra said.

The Road Ahead

“As a trans person who has been living on the margins of the society, one has always learnt to hope against hope and live against tide. We are not definitely not going to given up hope and will continue to struggle and assert our rights. We will increase our allies and solidarity from all across to ensure the rights of our community is safeguarded.”

Meera  Sanghmitra, Activist, National Alliance of People’s Movements

The trans community has been trying to reach out to all political parties, particularly non-BJP parties to lend them a helping hand in the Rajya Sabha, where the Bill will be taken up. As of now, they have received support from Congress, CMK, TMC and CPI.

Talks are on for support from NCP, SP and BSP as well. With elections around the corner, they hope that the opposition MPs willing to contest the Bill will increase to defend the Constitution and thereby also defend the rights of the transgenders.