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.
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.
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?
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.
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.