Indian society, I believe, is a game of whack-a-mole, only with life and death at stake. Just as one glaring issue is knocked in the head, a new one appears in a trice with potential to destroy lives. It is beyond frustrating that this particular new challenge was entirely avoidable, and yet, we are faced with a deeply problematic Bill not too long after the positive Section 377 verdict (Navtej Singh Johar vs UoI), a Bill which is not too far from becoming the law of the land–The Transgender Persons (Protection of Rights) Bill, 2019.
Most (if not all) the recommendations of a Parliamentary Screening Committee, a Private Member’s Bill– introduced by Tiruchi Siva, passed by the Rajya Sabha (never to see the same fate in the Lower House)— and those from activist-groups, academics, sex-workers’ unions, NGOs and more were rejected in the drafting of this Bill in 2016. There was outrage. The reason for fiery protests breaking out is that after the Lok Sabha, it is now the Rajya Sabha that has passed the bill.
I, a trans woman and medical student, spent much of this year transitioning from male to female. While the journey has undoubtedly been terrifying and challenging, what has been most poignant is the discovery of just how far behind Indian society is in its medical, legal, and social understanding of who trans people are. The multifarious ways our lives are affected when legislation is created steeped in what seems like compassion-mongering seem laughably invisible to law-makers.
To say the very least, it is ironic that several of its provisions are not just in direct contradiction to the exemplary NALSA Judgement (Nalsa vs UoI) of 2014, but are, in essence, a stark contrast to the ethos of the Indian Constitution. Some issues are listed herein—
- Denial of the basic tenet of self-determination of gender, as elucidated by the NALSA judgement with the proposing of a screening committee at the district level, which will screen pre/non-operative and post-operative trans individuals, stating that the former is entitled only to the legal title of “transgender”, whilst allowing only the latter legal markers of “male” or “female” after screening. This violates the principle that surgery, hormonal treatment, any and all form of medical intervention is not indicative of gender identity, as upheld by NALSA vs UoI. The medical fraternity lacks medical training in trans health (more on this later), and despite being the most qualified members of said proposed screening committee, will lack the sensitivity and training to identify gender incongruence–a massive logical fallacy, in addition to ignoring the right to self-determination.
- Failure to recognize non biological/natal familial relations and structures within the local trans communities (Hijra, Aravani, Kothi, Jogta, and hundreds more) in addition to disrupting the same, by way of criminalising begging and sex work in conjunction with the Trafficking Bill. This necessitates that even adult trans people be housed with biological family, even if against their will. It places undue significant rights over trans lives in the hands of often unaccepting, violent, and abusive biological family, owing to which local trans communities continue to exist in marginalisation in the first place. The guru-chela system in a local trans community can’t be split into two–the trafficked and the traffickers—particularly when much of the sex work is not involuntary, for want of other options of livelihood and shelter.
- Failure to elucidate on reservations or affirmative action, access to jobs, healthcare, and anti-discriminatory measures. This, with the criminalsation of existing means of livelihood, leaves marginalised trans communities with little to no source of income.
- Anti-discrimination or punishment has been reduced and watered down regarding sentencing for the same crimes committed against trans people, with respect to cisgender individuals. This is, with stark clarity, a violation of the right to equality.
While this list is not exhaustive, attempts at describing every implication, perhaps, will never truly describe the complete bigger picture–this is how endlessly lives stand to be disrupted.
At the start of this year, I was denied girls/women’s hostel and any form of university housing save teachers’ quarters, and only if a family member were willing to (drop their lives/livelihoods to) live with me, practically in isolation from fellow students. The Transgender Bill was one of several (inadequate) reasons stated. It was clear to me from this that the Bill in principle or execution paves the way for a lack of clarity, an exacerbated denial of rights, and further isolation in the provision of education, employment, healthcare, and more. Further, issues of socio-economic status, caste, disability, inequitable healthcare, and religion intersect with gender extensively to create a dense web of oppression.
Speaking specifically of healthcare and medicine, the identification of Gender Incongruence (the discomfort caused by one’s gender identity being incongruent to their assigned sex and roles) is something a medical professional alone (specifically a mental health professional) should be able to do based on criteria in the International Classification of Diseases and suggestions by the World Professional Association for Transgender Health (WPATH)—and no one else, whether cis or trans. This identification alone should be enough to apply for all change of documents as stated by NALSA vs UoI, and it is why my Aadhaar Card states ‘female’ and did so even before I started hormones. I have, however, not undergone surgery, and several documents remain to be changed, such as my school certificates. Should the Bill be passed, must I and every other trans person then face the humiliation of being told by several cisgender people how valid our identities are based on physical and/or psychological denudation, before proceeding with our medico-legal transitions?
It is clear to me, having spent three years in medical college, that there exists, on multiple counts, a large amount of misinformation, misrepresentation, and pathologisation of trans and queer people in our medical textbooks and syllabus, even in the field of psychiatry. Training regarding care of trans and queer people is next to absent in medical training. I see hints of change on campus, like the inclusion of gender and sexuality as one of the topics of discussion in a Medical Humanities lecture series for first year medical students. But the same can’t be said for medical colleges across India.
Most trans people I have spoken to agree with me based on personal experience that even the most qualified doctor, mental health professional, or surgeon in India is oftentimes clueless about the existence of trans and queer identities, let alone the existence of respectful treatment of trans and queer patients in a hospital setting. This apart, sexual harassment of trans and queer people within the medical fraternity is rampant. There exists no formal medical association in India (a national equivalent of WPATH) to oversee transition medicine, mental health, and surgery, and no formal or specific guidelines to hold erring medical professionals accountable with respect to medical malpractice in the treatment of trans and queer people.
If the said screening committee is set up thanks to the Bill, to even assume that the most qualified of the screening committees will identify and reaffirm trans identities without error is highly illogical, and undue delays are bound to occur. Should it even function perfectly with respect to global medical standards, it is a barrier, a form of gate-keeping nonetheless. Further, what does an individual do if rejected? All of this is likely to make doctors even more hesitant to offer trans people the healthcare they rightfully deserve.
This Bill is a fairly accurate representation of centuries-old reluctance to break barriers and understand the workings of marginalized communities. Its direct and indirect implications in the integration and acceptance of trans people in society are troubling. Whether the Rajya Sabha will pay heed to the outrage and protest remains to be seen.