When social justice minister Thaawarchand Gehlot tabled the transgender rights bill in the Lok Sabha on Tuesday, it appeared to be the glorious culmination of a long struggle by one of India’s most marginalised communities.
But within hours, as copies of the draft bill was circulated, it became clear that the legislation diluted several key provisions of previous versions of the bill, while injecting harmful new language that could undermine protections extended for transpersons in India.
Activists and lawyers complained the bill encouraged corruption, was full of provisions open to abuse and directly opposed the spirit of a 2014 Supreme Court verdict that recognized the third gender and called for a raft of rights and measures for transpersons.
“It is difficult to be calm and hopeful reading the bill. It stinks of callousness and ignorance,” said activist Vyjayanti Vasanta Mogli.
“By the looks of it, the transgender community and allies may have to gear up for a long struggle.”
Many now want the government to revert to what they call a better bill on the issue by DMK member Tiruchi Siva, which was passed by the Rajya Sabha last year.
The first chapter of the bill seeks to define a transgender and lays down three main criteria — neither wholly female nor wholly male; a combination of female or male; neither female nor male.
This, activists say, insults transgender people and propagates the bias that trans identities aren’t “whole” by themselves.
“The LS bill is perpetuating the very violence/discrimination it seeks to address,” said Nadika N, a non-binary writer from Chennai.
The provision might stop many from identifying as just men or women — contradicting the right to self-determination of identity guaranteed by the Supreme Court. “What is a complete male?” asked Delhi-based lawyer Danish Sheikh.
Moreover, throughout the bill, the pronoun used is “his” – a slip that many have objected to.
“If this provision is interpreted literally, it leaves most trans people out of its ambit,” said Karthik Bittu Kondaiah, a professor at the University of Hyderabad.
Absence of Key Provisions
The top court had called for reservations as other backward classes for transgender people but that provision is wholly missing from the bill.
Safeguards in education and employment are also vaguely lumped together under a welfare provision.
“Employment and education discrimination are mentioned in one liners with nothing remotely concrete,” Kondaiah said.
What’s worse is the lack of clarity of who to approach in case of harassment or discrimination. “There is not even a single mention of what justice a trans person can seek,” said Nadika.
Chapter 8 of the bill lists out four types of offences ranging from denial of right to public spaces to sexual assault, but says the punishment cannot be more than 2 years. This is discriminatory, activists say.
“The bill has no definition of discrimination. It is unclear if a transperson gets fired, who they should approach to file a complaint,” said Sheikh.
The bill does not also mention police violence. “This is a huge gap since so many transgender persons face police violence,” said Bengaluru-based lawyer Gowthaman Ranganathan.
Contrary to Supreme Court Guidelines
One of the highlights of the 2014 apex court verdict was the right to self-determination of identity.
This meant that people could identify their own genders without having to seek certification and was meant to do away with years of oppression and torture at the hands of state actors who refused to recognize transpeople.
It also aimed at smoother delivery of government benefits — such as ration cards — to transgender people without the bottleneck of gender certification.
But the new bill appears to replace that with an elaborate structure comprising the district magistrate and a screening committee — that will have doctors on board — to be constituted by an “appropriate government”.
This has infuriated activists, who say the provision encourages gatekeeping of identities, will lead to corruption and favouritism as many will be forced to compete for meagre resources.
“Who on earth is “appropriate government” and why should it usurp individual autonomy and right to self-identify gender?”Mogli asked.
Many fear that the elaborate structure will intimidate people and the thousands of transgender people who have sought gender certificates from smaller districts in the past two years may be stranded.
“The gatekeeping will exclude many transpeople, including those who haven’t yet or don’t want to undergo operations,” said L Ramakrishnan from the NGO Saathii in Chennai.
“The Supreme Court said transgender is not about body parts. This is a draconian provision open to abuse.”
Two provisions have angered activists in particular.
The first constitutes “enticing” transgender people to beg as an offense. This, activists, say will lead to police targeting working-class transgenders as many of them are involved in beggary and could even be used to jail Hijra gurus or leaders.
“What other employment opportunities are being created? We have seen in Bangalore how the prohibition of beggary act is used to criminalise trans women,” said Bengaluru-based Gee Imaan Semmalar.
The second provision is a stipulation that transgender people cannot be separated from their families, a tricky ask in a world where the family or home is the source of discrimination, violence and denial of identity for a transperson, activists say.
The provision makes it impossible for people to be removed from abusive families without moving court.
“The ministry has clearly not understood that for most trans people, families are sites of violence and many leave home in their adolescence due to torture,” said Semmalar.
Activists have now reached out to the government and demanded a radical overhaul of the bill and a return of several provisions of Siva’s bill.
The new legislation negates much of the progress made since 2014 and may not have any effect once it becomes law, lawyers say.
“The terms, phrasing and wording of the bill — very ignorant, ill-informed and inadequate — are things to worry about, and may hurt the transgender community more than it helps,” said Nadika.