The Transgender Persons Bill misses key demands of the community
On December 17, 2018, almost exactly a year after we had mobilised a nationwide protest against the Transgender Persons (Protection of Rights) Bill, 2016, I was notified that the Lok Sabha was debating the Bill with 27 amendments proposed by the government. The debate could hardly be heard over the din, but what was clear was that the government’s amendments were passed with barely enough time given to objections raised by opposition party members. This Bill is now pending before the Rajya Sabha, along with the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 — both are a source of serious concern for the transgender community.
At the heart of our disappointment is the Bill’s contravention of the 2014 Supreme Court National Legal Services Authority (Nalsa) vs Union of India judgment, which upheld the right of transgender persons to self-identify their gender, and directed states to uphold this without mandating any form of bodily transition like surgery or hormonal therapy.
The current Bill, however, mandates that people first apply to their local district magistrate to be recognised as transgender, and that this change must reflect on all identity documents. The application is to be scrutinised by a District Screening Committee that includes local government officials, a psychologist and a single representative of the transgender community. It is preposterous that transgender identity — an identity emerging from the functioning of the brain, not from medically visible morphology — be assessed by someone else.
The Bill creates a two-tier system within the transgender community, where everyone must first apply to the magistrate to be recognised as transgender, and only those who are recognised as such may apply to be recognised as man or woman, the latter contingent upon providing proof of sex reassignment surgery. This means a denial of documents for persons who live and self-identify as men or women (and not as transgender), who may not want or be able to afford surgery, even if hormone therapy has largely changed their appearance.
The Bill represents a failure of the government to listen to our voices despite sustained efforts by the transgender community and our allies. Over the past few years, scores of depositions were submitted and gatherings were held, first targeting the social justice ministry when it drafted the Bill, and then the standing committee of both houses to whom the Bill was referred. The hope now is that the Rajya Sabha, which is expected to debate the Bill in the winter session, will direct a select committee to take on board the standing committee’s recommendations in light of the NALSA judgment, as well as the excellent provisions of the Private Member’s Bill proposed by Dravida Munnetra Kazhagam Member of Parliament Tiruchi Siva. This was drafted in consultation with the transgender community, and was passed by the Upper House in 2015.
A key demand missing in the 2018 Bill is that of reservation. Do you know of any transgender people who have been allowed into standard workspaces, or even informal sector jobs such as domestic work, anganwadi work and health work? Transgender people face widespread discrimination when it comes to employment, and must take legal recourse simply to access jobs despite being qualified. For example, Shanavi Ponnusamy, a transwoman and engineer who faced an unprecedented number of job rejections, was finally informed by Air India that they did not have jobs for people of her “category”. Her case against them for discrimination is now being heard in the Supreme Court.
Many transgender people face pressure to conform to their assigned gender and many are kicked out or run away from home during their early years, with no birth or education certificates. Those who have education certificates but change their appearance and name or gender identity markers on other identification documents find that employers are unwilling to employ them due to incongruent documents. It is in this context that many join traditional hijra occupations of mangti or badhai toli, which society fails to distinguish from begging. Some engage in sex work. The Bill seeks to criminalise “enticement” to beg, as does the Trafficking Bill with punishments of up to 10 years of jail time, and the community’s concern is that this will enhance the police persecution they already face.
The Bill does not even define or penalise discrimination, while being discriminatory in how it penalises sexual violence against transgender persons with jail time ranging from six months to two years in duration, in comparison to the punishment of seven years to life term for sexual assault on cis-gender women (someone who does not identify as transgender) in the Indian Penal Code.
The future of the transgender community is being held hostage by a poorly drafted bill. We fervently hope the Rajya Sabha will not pass this Bill into law.
Karthik Bittu Kondaiah is associate professor at Ashoka University, and a member of the Telangana Hijra Intersex Transgender Samiti
The views expressed are personal