The Transgenders Persons (Protection of Rights) Bill, 2016: Why We Need To Talk About It And Oppose It
In a country, where gender binaries between the male and female are already so concretized, the transgender and queer community are further marginalized when it comes to being part of the collective and further having access to livelihood opportunities. The social, economic, cultural barriers, all add to the factors which push transgenders to a life characterized by violence and discrimination in the society. The stigmas and stereotypes attached make them more vulnerable to naming and shaming in public spaces. It is at this junction, that the significance of the bill lies in both the recognizing their rights as citizens of this country who are equally to abide by the fundamental rights and duties of the constitution and to intervene in the larger set of perceptions about them as social beings in the social order.
Census of India, assessed the number of transgender people for the first time in 2011 which amounted to a population of 4.88 lakh. It is hard to overlook the fact that the transgender community in the country is one of the most marginalized with very few avenues for employment available to them. As a society, we need to immediately move to a state where the transgender people in this country are given the space to live a life of dignity and the role of the state is crucial in providing the same.
A writ petition was filed in the Supreme Court with National Legal Services Authority of India (NALSA) to claim rights of equality and justice. The judgment in April 2014 was welcoming as it recognized the right to self-identify one’s own gender, granted legal recognition and legal as well as constitutional rights, directed the Government to ensure reservations in education and public appointments and identified as the social and educationally backward class. In December 2014, Rajya Sabha passed the bill affirming NALSA provisions. But in 2015, the bill brought in the Lok Sabha by Ministry of Social Justice, Government of India proposed points in opposition to the NALSA verdict. In 2016 again, the said ministry modified the bill making it more regressive in nature. A standing committee was formed in 2017 by Central Government of India which has made valid suggestions for the bill as scheduled to be tabled in the soon approaching winter session of the Parliament beginning from 15 December.
Problems with the Bill in its current form:
The first problem lies in the definition of a transgendered person which says, a person who is “neither wholly female nor wholly female, a combination of female and male and neither female nor male” and “whose sense of gender does not match with the gender assigned to the person at the time of the birth”. To this, Standing Committee recommends a transgender to be defined as, "a person whose gender does not match with the gender assigned at birth, and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc), gender-queers, and a number of sociocultural identities such as kinnars."
Second, the 2016 version of the bill suggests that “a transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person”. The application will be forwarded by the district magistrate to the district screening committee which will be constituted by the Government “for the purpose of recognition of transgender persons”. It will add to the humiliation and problems in the issuance of identity cards especially in the remote areas where factors such as bribe, corruption, and power nexus delay the bureaucratic functioning of the government offices. The multilayered procedures do not make any sense, the provision of district screening committees shall be removed. It also violates transgender person’s rights under Article 19 and 21 of the Constitution.
Third is the criminalization of enticement to beg. Given the unequal state of employment opportunities and education access, the standing committee recommends “gender-based internal reservation for transgender people and a strong anti-discrimination provision with penalties, for educational and employment access”. The state should without any delay provide for employment opportunities to individuals belonging to the transgender community.
Fourth is low penalty for violence against transgender people. Given the fact, that transgender people face various forms of harassment or violence, the standing committee recommends penalties for sexual violence equivalent to penalties for sexual violence with women and proper definition of specific atrocities faced by transgender and intersex people.
Fifth, the placement of a transgender person in a rehabilitation center if the immediate family gives away the care of the person is problematic as it violates the constitutional right to freedom of residence of the transgender person. The bill does not consider the violence with the transgender person inside a familial structure or by the family members. The standing committee recommends expanding the definition of family as well to a family of “choice, adoption, partnership, marriage, friendship etc.”
Sixth, National and State Trans Rights Commission instead of National Council for Transgender persons.
The demand of the civil society and the concerned groups is to accept the recommendations of the Standing Committee. The citizenship rights along with Universal Human Rights stands violated if the bill as proposed now gets passed in the parliament which will reflect the collective failure of us, as a society along with the regressive step in the history of the nation.