By Anureet Watta:
The Transgender Persons (Protection of Rights) Bill has been recently passed by the Union cabinet. The bill, at face value, aims to prohibit discrimination of trans people and empower them through the clause of self-identification of gender. However, there are several problems that lie beneath its ‘righteous’ surface.
The Bill has been critiqued by trans activists across the nation and has led to vehement protests last year in various pockets of the country (long with those against the flawed Anti Trafficking Bill). This Bill, which was annulled due to the termination of the central government’s tenure, has once again resurfaced in the parliament with no actual amendments being made. Several glaring loopholes existed in its 2018 draft and all of them still stand. The Bill, in the guise of a protector of the community does a lot more harm than good.
Firstly, it belies the basic principle of self-identification of gender as laid out by the NALSA judgement of 2014. The proposal of a screening committee at the district level—which will attest pre- and post-op trans individual and classify the former as merely ‘transgender’ and the latter solely as ‘male’ or ‘female’—violates the NALSA judgement’s stance that surgery, hormone therapy, and all other such interventions cannot be determinants of gender identity. Taking into account the Indian healthcare system, where there is a dearth of medical investment in trans healthcare, the sensitivity and training required to identify dysphoria, dysmorphia, and gender incongruence is questionable.
Second, it lays undue influence of biological family in trans people’s lives. It fails to recognise alternative family structures—it dismisses how the hijra or jogta and such communities have played greater and more positive roles in trans lives. Biological families, at their core, remain largely abusive and orthodox for many trans people. The Bill fails to address this issue.
Third, the criminalisation of begging, and the Anti Trafficking Bill (which prohibits sex work) takes away from trans people methods of financial sustenance which have predominantly been the only ones with any security for the community.
With the wave of pink capitalism, which is accompanied by the rejection of trans people and trans expression in most employment spaces, this mechanism does more harm than good. The Bill merely brushes upon the concept of affirmative action, be it in healthcare, employment, education or access to public goods. This is the Bill’s fourth loophole. It provides no real remedy or mechanism to integrate trans people into public spaces and improve the quality of their lives.
Fifth, the anti-discriminatory policy referred to in the Bill does not have any real consequences, as there is no concrete recognition of discriminatory acts against trans people. With this and lack of any affirmative provisions, the Bill is miles away from recognising this community as marginalised and undoing this marginalisation.
And lastly, the Bill does not take into account any of the suggestions made by NGOs, CBOs, activist bodies, and other groups which grew out of personal experiences and collective advocacy.
In the words of Sandhra Sur, a non-binary person “Get your governance off of my body“. Yet the existing mechanism, they believe, fails to do just that and much more. According to another person belonging to the community, Bhavya, “This regressive bill has pushed us multiple years back. What’s most infuriating is that it is being hailed as an ‘inclusive’, ‘progressive’ move by media when in fact it is quite the opposite. The future of trans folks in India has never been this uncertain and under attack. The lack of awareness in the queer community is also disheartening. I am scared for my people and stand strong against this decision.”
Thus the Bill comes as a huge blow to the progress of the trans movement in India and negates the progress made by NALSA 2014. While termed as being progressive and adequate for trans people across the country, it is far from actually realising and recognising trans struggles. As of now, no apparent changes to it have been brought to light and its actual progress (or setbacks) are yet to be realised.