The Transgender Community Is Up Against The Trans Bill 2019, And You Should Be Too

“It was hot, so hot, before the eunuchs came 

To dance, wide skirts going round and round, cymbals 

Richly clashing, and anklets jingling, jingling 

Jingling… Beneath the fiery gulmohur, with 

Long braids flying, dark eyes flashing, they danced and 

They dance, oh, they danced till they bled…”

The poemDance of Eunuchs” by Kamala Das best describes the image of the transgender community in India, as those who are looked upon by the society with aversion and abjection. Das visualised a world of vacant ecstasy and sterility when the eunuchs “beat their sorry breasts on a hot day.” They are pictured as folks with painted faces begging to earn a livelihood. Though the poem was published in the anthology “Summer in Culcutta” in 1965, social apathy towards the transgender community has only persisted through the 2000s.

Transgender communities in India are widely recognised under various names like hijra, Kinner, Jogappa, and live as a society with their own rules and regulations. Cultural anthropological studies by scholars like Serena Nanda (1990), and Gayatri Reddy (2006) locate the traditional community life of hijras in India, some of who worship Bahuchara Mata.

They cross-dress and undergo the nirvan (a ritualistic removal of genital of a younger hijra person by and elder hijra person). They are understood by society as people who earn their livelihood through begging and prostitution. It is also believed that hijras hold a magical power to bless and curse, which is said to entitle them with the capacity to bless newborns and newlywed couples. They sing and dance on such occasions and receive alms (badhai).

However, they have been discriminated against for quite a long time by mainstream society. They have been harassed, sexually abused, and denied their human rights. Hence most of them have been left to face illiteracy and poverty. 

‘Transgender’ is a term widely used in the Western context to address a person for whom their gender identity is at odds with the biological sex ‘assigned’ at birth. The scope of the term has expanded and many subgroups of people have been brought under this. 

Image source: Devesh Khatu/Facebook

In the current scenario, transgender people prefer changing the sex assigned to them at birth and be recognised as their gender identity through surgery or cross-dressing. There are transgender people who prefer to be known by gender-neutral pronouns like ‘they’ or ‘hir’. However, due to the strongly-held patriarchal notions of Indian society, transgender persons are often forced to hide their identity for long and face harassment from family and society for their gender non-conformity. 

Along with activism coupled with protest and celebration, efforts to legally recognise the rights of transgender identity is being undertaken by the government of India. According to the 2011 census data, around 4.8 lakh people in India belong to the transgender community and the necessity of legal measures to protect their rights has been raised as a major concern by the transgender community, NGOs for transgender welfare, and activist groups.

A private member’s Bill had been drafted in 2014 after the recognition of their legal rights by the Supreme Court of India in the NALSA Judgment of 2014. Later the Transgender Persons (Protection of Rights) Bill, 2016 was introduced in the parliament, and people from the transgender community found it to be discriminatory on several grounds. After around 27 amendments to the draft, it was passed by the Lok Sabha. But, before it was approved by the Rajya Sabha, the Parliament was dissolved. 

The new Transgender Person’s (Protection of Rights) Bill, 2019, was introduced in the parliament on July 19, 2019. But, there continues to be much confusion surrounding it even though it has been passed by both houses of the Parliament. Since it is only waiting for assent by the President, it seems like now the community is left with no option other than to protest in the streets and over social media.

Image source: Grace Banu/Facebook

The transgender community has pointed out that the draft Bill is regressive, and it does more harm than any good. Activists like Grace Banu have stated that the new Bill is like “killing transgender people in India“. “For us, this Bill is just an empty white paper. It does not change the lives of trans people. We gave a list of demands but this government as usual ignored it. With this Bill, they have proved that they are against minorities. We are totally disappointed and we will mark this as a ‘Gender Justice Murder Day’,” she said.

What are the key features of the new Bill passed by the parliament?

  • The Bill defines a transgender person as one whose gender does not match the sex assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
  • The transgender person has to make an application to the District Magistrate for a certificate indicating the gender as ‘transgender’.
  • The Bill seeks to prohibit any discrimination against transgender persons, unfair treatment and denial of service including education, employment, health care, access to the enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent or otherwise occupy property, opportunity to hold public or private office, access to government or private establishment under whose care or custody a transgender person is. 
  • The Bill also seeks to establish a National Council for Transgender people (NCT).
  • It is stipulated in the Bill that all crimes against transgender people will attract a punishment of imprisonment between 6 months to two years with fine.   
Image source: Devesh Khatu/Facebook

The following are the major grounds where the Bill is at odds with the wishes of the transgender community:

  • The transgender community rejects the certificates of identity in the bill, as it breaches their right to self-recognition of gender identity as promised in the SC verdict 2014. If a magistrate denies the certificate of identity to a transgender person, then it could be observed as a violation of the fundamental right for self-recognition of gender identity.There is also a lack of clarity regarding the procedures of how the District Magistrate examines the applicant of transgender identity. It is also a violation of their privacy.
  • There is also a provision in the Bill that a person’s identity as a transgender is valid whether or not they have undergone sex reassignment surgery (SRS), which is in contradiction with the point about receiving identity certificate from the District Magistrate as proof for SRS.
  • The mechanism to enforce the legal prohibition against transgender people is also flawed. The Bill pronounces lighter sentences for several criminal offenses met by transgender people, such as “sexual abuse” and “physical abuse”. It is out of sync with the existing penal provisions of rape. This indicates that the Government is totally insensitive to transgender people’s welfare and rights.

  • There is no affirmative action for employment or education of transgender people in the new Bill. And also there are no provisions to approach the court against those people who discriminate against a transgender person in educational institutions and workplaces.
  • The Bill also conflates the identity of intersex as well as transgender persons. It cannot be asserted that all intersex people are transgender people and vice versa.
  • The transgender community also argues that they were never consulted with when the Bill was drafted and the lack of their representation make the Bill arbitrary.
  • The Bill is silent on the issues of reservation.
  • There is no mention of marriage rights, adoption rights, social security, and pension of transgender people in the Bill. 
Image source: Collegetimes/Facebook

Transgender people should be the decision-makers about their lives. When a majoritarian government discusses and debates on a Bill that deals with the issues of people belong to a gender minority, the heteropatriarchal assumptions underplay strongly. As the activists’and transgender community demands, the Bill should be sent to a select committee and reconsider the flawed provisions in the before it is enforced.

As observed by Sasha R, a trans woman who is pursuing LLB in Delhi, “This Bill gives power to everyone, but us to determine our future and our lives- The District Magistrate, the Chief Medical Officer, and the Court. It essentially legalizes humiliating us in the name of ‘recognizing us’ and make sure that we trans people are not equal in the eyes of law”  

In order to become a progressive state, the government should ensure the welfare of all communities in the state by properly addressing them. Though silenced for a long time, the transgender community is now up against all atrocities through their struggles, they seek the fundamental rights and legal citizenship idealized in the constitution, and it is the duty of the state to provide that.

In the issue as it currently stands, before giving his assent, the President should return the Bill to a select committee to amend the biased and unjust provisions. With proper consultation with the transgender community, and only after getting their consent, it should be considered for enactment.

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