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Everything That’s Wrong With India’s New ‘Progressive’ Transgender Rights Bill

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Two years ago the Supreme Court of India’s NALSA verdict laid out a charter of possibilities for the rights of the transgender community – a community which has been ostracized for centuries. Protecting those who survive outside the man-woman construct was the heart of the verdict and it was followed by two bills on the same issue – Tiruchi Shiva’s Private Member’s bill on protection of rights of transgender people which was, in an unprecedented move, passed by Rajya Sabha in April 2015; and the Ministry of Social Justice and Empowerment own draft bill that was made available in December 2015 for further consultations from the transgender community, activists and civil society.

So last week, when Union Minister Thaawarchand Gehlot, presented the Transgender Persons (Protection of Rights) Bill, 2016 in the Lok Sabha, the initial satisfaction and joy of Indian LGBTQ community, especially the trans community, was akin to being told “Congratulations! You won the lottery!” But the party-mood ran out soon enough. As it turns out, the ministry’s “valuable” consultation with the transgender community and other civil society activists was finally translated into a futile bill which threatens to strip away the rights of transgender individuals ensured by the Indian Constitution and the Apex Court.

A Flawed Bill With Many Loopholes

According to the draft bill, a transgender person is someone who is: (A) neither wholly female nor wholly male; (B) a combination of female or male; or (C) neither female nor male. Is it too tough for our policy makers to understand that what they defined as ‘transgender identity’ is essentially used to define the biological sex of an ‘intersex’ person? The ministry has again bought into the popular narrative of transgender individuals as alien beings that are neither male/female. There is no room for confusion between biological sex and psychological sex (gender identity) of a person. A person can be wholly ‘male’ or wholly ‘female’, and can still very much be transgender!

The effort of the Supreme Court and the activists to distinguish ‘sex’ and ‘gende. r identity’ has thus been intentionally whittled down to a level where one’s genitals would decide their gender identity. Furthermore, in Chapter III, instead of using gender inclusive pronouns, male pronouns were used which, considering the nature of this law, is uncalled for.

And The Right To Self-Identification?

The most important aspect of the NALSA verdict was its provision for self-identification of one’s gender which this bill has ruined quite successfully.

The Supreme Court made it undoubtedly clear that insisting on Sex Reassignment Surgery (SRS) for identification should be seen as an act of violence. It is true that many transgender individuals undertake surgical procedures in order to develop the traits of the ‘sex’ they identify with, but for various other reasons many also choose not to and that decision definitely doesn’t prevail over their sense of gender. So, a biological male can identify herself as a woman – for example, many kothis identify themselves as women, and instead of challenging their gender identity, the State’s duty is to respect such person’s feelings and protect their rights.

In accordance with NALSA, the ministry’s last bill was of the opinion that every person should have the liberty to identify themselves as “man,” “woman” or “third gender” which, quite mysteriously, is missing in this bill. As a consolation prize, part III of the revised draft bill provides very vague mechanism of recognition of identity: “A transgender person may make an application to the district magistrate” and then outlines a very complicated process. But the question remains – what measures will the government take if one doesn’t wish to make an application to the district magistrate?

Not A Right, But A Humiliating Obstacle Course!

The process depicted in part III of the draft bill requires many bureaucrats in a “screening committee” to verify whether a person is transgender or not. Wait a minute! Do all cisgender persons now have to prove their “cis-genderness”? If this process, which demands peopleprove their sense of gender to others, is not humiliating and discriminatory then nothing is. Also, if one decides to go with screening procedures in order to establish who they are, can the State ensure that there will be no further humiliation or stereotyping or violence involved? And, what if the result of the screening committee is erroneous? Can such persons still identify themselves as transgender?

The involvement of Chief Medical Officer to determine whether one is transgender or not reminds us of the shameful practice of stripping, and subjecting transgender persons to intrusive body searches and medical examination to declare their gender. The question is why the government, instead of respecting one’s sense of privacy, wants to know what one has inside their inner wear. We can surely do much better than those frisk-loving airlines security personnel appointed at various US airports.

Silent Or Vague About The Most Important Issues

This bill also doesn’t provide a clear understanding about discrimination and how it affects the human rights and dignity of the already marginalized trans community. It also maintains its silence about the police violence that many trans people face on a daily basis. It is true that Chapter II of the draft bill mentions that no transgender person should be discriminated against when in custody, but lest we forget, transgender persons and those associated with them are constantly ill-treated by the police before taking them into custody, that too on false charges. Failure to mention any method of enforcement, and talking only about discrimination sounds like sending lots of prayers to someone who is in urgent need of blood when the blood bank is out of stock.

Chapter IV of the draft bill lists a few state welfare measures, again without going into detail, and makes no mention of provisions pertaining to reservation. So the Government expects all those who have been regularly persecuted by the State and non-State actors to compete with those who have been enjoying all the privileges provided by the State and reverse-colonize everything? Very interesting!

This draft bill’s suspicious silence on accessing a broader series of rights of transgender individuals in their private sphere such as marriage, inheritance, adoption, resembles a half-baked cake where one can still smell the rotten eggs used in it.

And what about the family of transgender persons? Here’s what Chapter V of the draft bill says: “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person…” So what happens if the violence comes from within the family? – NALSA had squarely recognized the family as a site of violence and discrimination, which this bill fails to acknowledge. Waiting for the court’s decision to rescue the victims in such cases is not an option considering the sluggish judicial system of India. The jurisdiction of Indian Government doesn’t cover “life” after one’s death. The revised bill further says: “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.” But a quick fix like placing someone in a rehabilitation centre is not appropriate. Any kind of detention even if purported to be for the benefit of a person, is unacceptable.

The creation of the National Council for Transgender Persons or providing free medical consultation to those who want to undergo sex reassignment surgery are indeed welcome, but not without criticism. Without having any power and method of enforcement, the proposed Council will act like the toothless Election Commission where– everyone knows that it exists but nobody is sure why.

Also, by placing emphasis on medical procedures this bill suggests transgender identity rests on surgery. The idea rather should be, “Hey, do you want to undergo surgery? Cool, we got it covered. You don’t want to go for SRS? We got your back as well.” The government must remember that this bill, apart from safeguarding the rights of transgender individuals, is supposed to protect more than 1.2 billion Indians’ sense of gender and the way they want to express it. We are not playing “trick or treat” with the authorities where they may run out of candies. We are demanding our Constitutional rights which unfortunately cannot be guaranteed through a publicity stunt like this revised draft bill.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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