By Mihika Poddar and Archismita Raha
In August 2016, the Central government introduced the Transgender Persons (Protection of Rights) Bill, 2016 (‘the Bill’), in Lok Sabha. It aims to provide for a comprehensive framework for the protection of transgender persons, in pursuance of the affirmation of their socio-political rights by the Supreme Court’s NALSA judgement (‘NALSA’). It is currently pending before the Parliament. However, it needs massive revisions in order to be in compliance with both constitutional and international law.
Further, it imperils several of the rights guaranteed by the Supreme Court in NALSA. This path-breaking judgement, despite its flaws, gave legal recognition to transgender persons. It recognised the spectrum of different gender identities, as well as their rights and entitlements as equal citizens.
In this blog, we present an overview of some of the most troubling provisions of the Bill, that undoes much of this progress.
Reinforcing Gender Binaries
NALSA’s expansive definition of the transgender identity allowed individuals to identify outside the male-female binary. The 2014 version of the Bill also included the internationally accepted definition of transgender, which affirms the right to identify as ‘male’, ‘female’ or ‘transgender’. The Bill however, does not allow for identification as ‘male’ or female’, reinforcing stereotypes about transgender individuals being part man and part woman. It nullifies the SC’s recognition of the right of self-identification and defines a transgender as:
(a) neither wholly female nor wholly male; or
(b) a combination of female or male or
(c) neither female nor male.
Thus, evidently, the Bill defines a transgender through the same lens of binary that queer identities tend to disrupt. Again, the Bill makes it mandatory for every person with non-normative gender identity, including gender queers, to identify as a transgender; thereby negating the claim to protection of any transgender person who identifies as male or female or a gender queer person who does not want to identify as a transgender.
It is suggested that at the very least, the Bill should have used gender inclusive pronouns, instead of male pronouns, as has been used, especially given the subject matter and nature of the law.
While the Bill provides for the right to perceived gender identity, it also makes it mandatory for every such transgender person to apply to a District Screening Committee (Section 6), comprising the Chief Medical Officer (CMO), the District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community and an officer of the relevant government. This Committee would conduct an inquiry and ‘certify’ transgender identities for applicants. That a supra-constitutional body would determine the identity of transgender people amounts to a gross violation of human rights and constitutional principles. Involving a CMO for screening also means that the members of the third gender would be subject to arbitrary medical examinations and allied humiliation and that is sanctioned by the state.
The procedure is tedious and unsettles the principle of self-identification. In as much as it may be used for particular ends like channelling entitlement to individuals, making it the sole basis for recognition of the transgender identity. This is in complete contradiction to NALSA.
Further, from an international human rights-based perspective, such procedures are in violation of the right to legal recognition and self-determination under the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, expanded by the Yogakarta +10 principles.
The underlying principle remains that there cannot be a state entity that will examine a person’s identity, and based on any prescribed procedure, validate or invalidate it.
Minors and the question of autonomy
The Bill makes it mandatory for transgender children to make the application before the screening committee through their parents or guardian. This reflects the lack of understanding on part of the lawmakers as to the lived realities of children with non-normative gender identities. For most children or adolescents convincing their parents and family becomes one of the hardest tasks in the course of transforming/coming out and instances of being denounced by their families are widely known. Interestingly, the fact that the parents of a child with non-normative gender identity may not be supportive of the child has also been envisaged by the drafters of the current bill. This acknowledgment comes through the provision for having institutional care facilities for transgender children who cannot be supported at their homes.
Thus, greater autonomy to minors under the legal framework should be given where minors should also have the right to identify with their perceived gender.
Toothless Protections and Watered Down Rights
The exclusionary definitions and limited scope could still have been pitted against a robust framework of substantive protections and rights. However the Bill’s substantive guarantees are a disappointment. It does not even reaffirm the entitlements recognized by the NALSA judgement.
This Bill, for instance, does not provide specific provisions for transgender health care. The Tiruchi Siva Bill of 2014 mentioned free gender reassignment surgery and allied medical treatment for transgenders.
Moreover, the Bill again falls short in not providing a definition of discrimination; unlike the Tiruchi Siva Bill that defined discrimination as a ‘distinction, exclusion or restriction’ on the basis of gender identity, which had the purpose or effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an equal basis. Such a definition would have strengthened the anti-discriminatory provisions by guiding the interpretation of duties not to discriminate.
Without providing for any enforcement mechanisms for anti-discriminatory obligations, it penalises enticing a transgender person to beg. This is in complete ignorance of the prevalent reality that, due to centuries of social exclusion and stereotypes, begging is one of the very few income-generation avenues available to many members of the community.
Further, the Bill does not recognise the right to family or inheritance for transgender persons. A comprehensive protection framework needs to ensure equal marriage, parenting, partnership, custody and inheritance rights as others. This is necessitated by the fact that almost all laws have been framed in a way that deals with a ‘man’ or a ‘woman’, either directly or through terms like ‘son’, ‘daughter’, ‘brother’, ‘wife’ and so on and so forth. This excludes the lived experiences of millions who do not fit squarely in these terms or at least the socially constructed of these terms.
The penalty clause in the bill provides that a maximum of two years of imprisonment shall be given to a person who ‘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’ (Section 19). Juxtaposing this with provisions of the IPC we arrive at a position where the punishment for sexually abusing a cis woman can even be death but the punishment for sexually abusing a trans woman shall not be more than two years.
This draft of the Bill led to oppositional movements within the country and attracted criticism internationally. An updated draft was supposed to be tabled soon. The Bill has now been sent to the Cabinet for final consideration after an inter-ministerial committee finalised nine amendments in March this year. These amendments are in line with those suggested by the Parliamentary Standing Committee and include a proposed change in the definition of the term ‘transgender’.
While the exact content of the proposed amendments are yet to be made open to public view, we hope that the revised Bill affords substantive rights and protections to transgender persons, replacing the current draft, which is nothing short of a mere political eyewash.
(Mihika Poddar and Archismita Raha are final year students of the WB National University of Juridical Sciences)