Transgender Bill 2019: State-Sanctioned Discrimination Under The Guise Of Protection?

A Critique On The Transgender Persons’ (Protection of Rights) Bill 2019

The attempts of the government to address Transgender rights in India have been a blue flunk. Though the NALSA judgment of 2014 was the first major attempt to address Trans persons’ rights in the country whereby it laid the foundation, since then, the past five years have been disappointing.

Fast forward to 2019, the momentum against the proposed Act, which is nothing but state-sanctioned discrimination under the guise of protection, seems to have regained, with the recent speech of the Samajwadi’s Jaya Banchan in the Rajya Sabha.

Since this is neither an essay that attempts to trace back nor comment on the history of transgender rights in the country, I will not ponder too much on what has happened over the past five years; which obviously hasn’t made any difference in the advancement the rights of sexual minorities and the marginalised.

In states such as Meghalaya, transphobia and discrimination against sexual minorities is ubiquitous. And tribal institutions, like the autonomous District Councils and their CEM’s, have a history of defying and nonchalantly bypassing central acts and laws, such as the NALSA judgment, which recognises the third gender to the Street Vendors Act of 2014. Thus, it is especially important to remind ourselves, that even though there are laws in place which supposedly protects sexual minorities from discrimination, they do more harm than good.

First and foremost, the major problem with The Transgender Persons’ (Protection of Livelihood) Bill  2019 it that it was made without consulting any person belonging to the Transgender community! Neither was there a transgendered member of parliament nor were the stakeholders included in the discussion of the bill. Consequently, there is an incongruity between what the proposed Act provides and what Transgender people actually need.

Secondly, the proposed Act is in direct violation of the NALSA judgment “that affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery (SRS). In fact, NALSA had clearly directed that “any insistence for SRS for declaring one’s gender is immoral and illegal.”

The Bill does not grapple with the realisation of civil rights, such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and constitutional guarantees. Image source: Instagram

However, according to this Bill, before a person can “officially’’ be considered as a transgender, they have to apply to the District Magistrate’s Office for a certificate of recognition, after which they have to be examined by a District Screening Committee, to decide whether or not they are eligible to be “recognised’ as transgender. Thus, the gender of a person ends up being decided by the state!  Furthermore, there is no mechanism for appeal included in the Act, which means that due to prejudice, any foul playing government employee can meddle in the process, and there would not be any opportunity to appeal.

Thirdly, dealing with the economics and livelihood of Transgenders, the Act criminalises begging, failing to take into consideration the age-old traditions and socio-cultural context of begging by the “hijras”, “kinner”, “aravani” and “jogta”. Though it prohibits begging, the proposed Act does not create new livelihood alternatives but only vaguely strengthens them from discrimination at work.

Fourthly, it can be observed that the present laws in place avail the use of binary gender and pronouns that are male and female. For example, provisions in the Indian Penal Code (IPC), Factories Act, Hindu Succession Act, etc., only considers two genders. If these laws are to apply to the “third-gender” as well, they must shift from the monotonous use of binary pronouns and widen to a more inclusive spectrum.

When it comes to sexual offences, the Act fails to extend protection to transgender persons who might be victims of sexual assault or rape, as the Indian Penal Code recognizes rape in strict terms of men and women as perpetrator and victim, respectively. While the Act makes “sexual abuse” punishable, with a disproportionate punishment of imprisonment only up to two years, it does not define the acts that constitute sexual offences, making it complicated for transgender persons to report such crimes and access justice.”

Thus, it is discriminatory to see that that there is disproportionate punishment when it comes to sexual offences, where the maximum punishment for sexual offences to cis-gendered women and animals is life imprisonment, whereas, for Transgenders, it is only up to two years.

Moreover, the Bill does not grapple with the realisation of civil rights, such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and constitutional guarantees.

Though the proposed Act is not entirely negative, for it does include provisions of opportunities and protection from discrimination in some aspects, such as sex reassignment surgery, separate HIV/AIDS surveillance centres, comprehensive insurance schemes. Comparatively, these are secondary when it comes to the crux, such as the aforementioned issues; i.e.basic recognition.

In conclusion, there is no denying that The Transgender Persons’ (Protection of Rights) Bill 2019 was a hasty piece of legislation, that overlooked and left out more important clauses. What the allies and fellow LGBTQIA+ members need to do is to push for and demand amendments.

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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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