On November 26, 2019, the Indian Parliament passed the Transgender Persons (Protection of Rights) Bill which provides us with the definition of a transgender as ‘someone whose gender does not match the one assigned at birth’. It also allows the self-perception of gender identity and criminalises begging. The entire process, presentation, amendments, drafting, and passing of the bill faced varied opinions from the public sphere as well as the entire community of LGBTQIA in India.
The bill prohibits discrimination against transgenders in educational institutions, government establishments, while using public services, etc. It also allows the right to ‘self-perceived’ gender identity. The policymakers argue that the bill leads to the development of the community with the formation of a National Council for Transgender Persons (NCPT) that will help and advise the government on formulation policies for the community, monitor implementation, address grievances, etc. There have been many instances where families disown their children when they come out about their identity at home. The bill will, hence, provide rehabilitation centre placement for transgenders whose family is unable to take care of them. This enforces a minor’s right of residence of compelling any trans person below 18 years to cohabit with their natal family.
However, the communities and the people opposing the bill feel that it is straight-up against the right to dignity and bodily autonomy of transgenders. Grace Banu, a Dalit transgender rights activist, said that the bill was a “murder of gender and justice” and it did not uplift the community. According to gender activist, Harish Iyer, the Bill is regressive in nature.
Transgender Persons (Protection of Rights) Bill was passed without approaching anyone from the community of transgenders. The process to obtain a transgender certificate has many fallouts. Apart from being an expensive procedure, it raises questions of violation of privacy. Also, there is no classification on how District Magistrate will examine the person based on their documents. The bill does not specify the ‘kind’ of surgery it is expecting because there is more than one type. This also contradicts 2014 NALSA (National Legal Services Authority v. Union of India) judgment by the Supreme Court that gave the right to self-identify and did not mandate surgery. Reflecting upon the lack of education, the bill conflates transgenders with intersex people. It fails to define what sexual abuse is. Even the punishment is not fully justified. In case of the rape of a woman, jail of 7 years or life sentence is given as punishment to the person who committed the crime, whereas, if the same happens with a transgender, a minimum of 6 months of jail which can be extended to just 2 years has been defined under the bill. There is no mention of marriage rights, property rights, and reservations for those who belong to disadvantaged groups, social security, or pension. This is nothing but deprivation of basic fundamental rights to the community, I feel.
On a personal note, I would like to address the problem with rehabilitation centre provision in the bill. Domestic violence has prevailed against transgenders and is clearly evident through examples from the past and present. Here’s what will happen now. A person will be forced to come out to their family which will not only violate their right to privacy but will also lead to mental pressure of how things will turn out. The intensity of ‘what ifs’ is something that cannot be measured by someone who is not facing anything close to this and in a country like India, domestic households do not operate with same ideologies and beliefs for immediate acceptance due to many reasons, lack of education being the primary factor in this case. People join LGBTQ groups or NGOs because they find a home away from their own. If a person in today’s situation wants to leave home then they will be placed in a rehabilitation centre without choice. This denies the rights of a person to join the trans community.
And lastly, the bill makes a feeble attempt at understanding the concept and difference between sex and gender.
This entire process of the bill- from its presentation to its implementation- didn’t make to the headlines as it was concealed by other headliners in the news. When the bill was presented in Lok Sabha, it was overshadowed by the revocation of Article 370 and 35A in the Indian Constitution. When Rajya Sabha passed the bill, the political crisis of Uddhav Thackeray being elected as the new Chief Minister of Maharashtra on November 28, 2019, took over the media platforms. By the time the bill came into effect, the novel coronavirus disease took most of the headliners in news. Although through the efforts of independent media organisations, online social media coverage, art and activism, and voices from the trans communities, LGBTQIA groups and NGOs did grab the attention of the public of India. Some of them feel that Transgender Bill 2019 is transphobia in action. It is a direct violation of the Supreme Court judgment that was passed in 2014 (NALSA vs UOI) that acknowledged the fundamental rights of transgender people in India. The bill reduces the people to just their bodies.
Without a doubt, the stigma towards transgenders is prevalent in the Indian society, and when an act like this is passed without consultation of the very people it is designed for, the country as a whole takes a step backwards in its development process.
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