Supriya Raman, on why the Trans community is so upset with the 2016 Trans Bill
In April 2014, the Supreme Court delivered a landmark decision in the case of National Legal Services Authority v Union of India and others (NALSA). The Court stated that transgender people have the right to decide their self-identified gender. It also directed the Centre and state governments to grant legal recognition of this gender identity such as male, female or as third gender, and take specific steps to address the discrimination faced by the transgender community.
In April 2015, the Rajya Sabha MP Tiruchi Siva proposed a private member’s Bill that aimed at protecting and providing rights for transgender people. The Bill was passed and had 58 clauses in 10 chapters dealing with different aspects ranging from social inclusion, rights and entitlements, financial and legal aid, education, skill development to prevention of abuse, violence and exploitation. It provided for creation of welfare boards at the Centre and State level for the community, Transgender Rights Courts, two per cent reservation in government jobs and prohibited discrimination in employment. It also made provisions for pensions and unemployment allowances for members of the community.
The government however assured the House that it would work towards bringing an updated Bill in the Lok Sabha, as it felt that there were some “impractical clauses” that needed to be addressed and removed from the private member’s Bill.
In December 2015, the Ministry of Social Justice, Government of India, introduced a new draft for the Bill in the Lok Sabha, which included the right to self-identification and reservation for transgender persons under the Other Backward Classes category. At the same time, this new Bill did away with the remedial measures of dealing with discrimination against transgender persons by making National and State commissions, as well as transgender rights courts. But the ministry did consult heavily from the civil society and legal experts.
This Bill was then sent to the Law Ministry and a heavily watered down version of it was introduced in the Lok Sabha in 2016 as The Transgender Person Bill, 2016.
According to a statement issued by the Trans Community, the 2016 Bill, “added some extremely draconian, violative and regressive provisions and was met with widespread resistance. The Central Government formed a Standing Committee to better understand the issues, which brought out a broadly progressive report in 2017, but also indicated the largely negative response of the Ministry of Social Justice to its own recommendations. Media reports have also indicated that the Ministry plans to disregard the Standing Committee report, and the regressive 2016 Bill is set to be tabled in the winter session of the Parliament starting on 15 December.”
Some of the most problematic features of this bill include, the definition of transgenders as being “partly female or male; or a combination of female and male; or neither female nor male.” The problem with this definition is that it completely does away with the NALSA guidelines and self-identification, focusing only on a very un-scientific, socially stigmatic definition. According to the standing committee, a transgender can be defined as,”a person whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as – kinnars, hijras, aravanis, jogtas etc.”
What is a further cause of humiliation is the fact that, according to this new Bill, individuals need to submit themselves to a medical examination by a District Screening Committee, comprising of a Chief Medical Officer, a psychiatrist, a social worker, as well as a member of the transgender community. Besides ignoring the right to self-identification as directed in the NALSA judgment, this screening process also violates the transgender persons’ rights under Article 19 and 21 of the Constitution.
The Bill states that, “whoever compels or entices a transgender person to indulge in the act of begging.. shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” Unless there is equal opportunity for employment for trans- people, this law will only be used to harass them further and take away their limited sources of employment.
One of the major focuses of the original Bill was the employment of trans- people; the Bill specified reservations to create equal opportunity. The new draft has no such provision for reservations or quotas to help the community move ahead. The 2016 Bill has also done away with transgender rights courts and National and state commissions for the community to address grievances and ensure their welfare.
The Transgender Persons (Protection of Rights) Bill, 2016 is slated to be re-introduced in winter session of Parliament which starts on December 15, 2016 and as it opens up on the Lok Sabha floor again, A National Protest Rally is being planned in Delhi on the 17th of December at Parliament Street, where transgender persons, hijra persons, intersex persons and other gender non-conforming and queer persons shall join to claim their rights and speak against the government’s rejection of NALSA.