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.”
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.