Transgender bill - to avoid or attract further discrimination?

The gender of a person will now be decided by a third party in India. Sounds like a cause to celebrate, isn’t it? Well, if you think otherwise, then the latest amendments in the Transgender Bill passed in the Lok Sabha on Monday is something that the government needs to revisit! The Bill, which was introduced in 2016, was passed with 27 amendments, including an amendment on the definition of “transgender”.

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The bill, which primary aim is to protect the transgender people from being discriminated, would cater to do the exact opposite. Many transgenders and gender non-binary activists are opposing the bill to get a green signal from the Rajya Sabha, as it would provide a new platform to actively violate their rights. 

The Act proposed to be called the Transgender Persons (Protection of Rights) Act, gives a new definition to transgender which was originally defined as ‘neither wholly male or wholly female, or a combination of female or male, or neither female nor male’.

As per the Act, ‘transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinnar, hijra, aaravani and jogta.”

Why the bill does not justify the rights of transgender:

Procedure for Transgender recognition. The recognition of the people will solely rely upon the certification by a District Screening Committee. The individuals who identify themselves to be a man or a woman will need to go through gender affirmation surgery (also known as sex reassignment surgery, or SRS). This clearly suggests that any Transgender’s identity lies in the hands of a third party gatekeeper and is subject to doubt until approved by them. This amendment also strikes out the Supreme Court’s judgment that the only thing required to acknowledge an individual’s gender is their word for it. This violation opens more doors to discrimination and harassment by the people responsible to entitle an identity to the trans people. Moreover, the Bill also fails to recognise that not every individual would either want to or can afford to opt for the ‘necessary’ test.

Shashi Tharoor has, in his Twitter post, criticised the bill and wrote, “Self-identification as transgender should be the only basis. My amendment expressly forbids subjecting transgender persons to a physical examination & ensures all transgender persons are protected against discrimination, even those who may not have a certificate of identity.”

6/8 Self-identification as transgender should be the only basis. My amendment expressly forbids subjecting transgender persons to a physical examination & ensures all transgender persons are protected against discrimination, even those who may not have a certificate of identity.

— Shashi Tharoor (@ShashiTharoor) December 17, 2018

 Right of residence. The bill states that no trans person can be separated from the family on the basis of their identity. However, what the bill fails to recognise is that this would force the family to be subject to harassment and violence. Many people strongly believe in living individually or with their chosen family, which they call their own community. The bill wrongly forces a trans person to be placed in a rehabilitation centre if any parent or a member of his immediate family is unable to take care of them. Moreover, the age of qualification is also missing. In a country where cisgender people (people who identify with the same gender identity they were assigned at birth) have the right to live according to their wish, granting special arrangements to trans people that they do not want or need, only brings them under the beam of discrimination. This is another way of putting their lives, to be hurdled, by controlling their every move.

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Inadequacy to address violence against trans. Many activists have debated that the bill fails to include or address the violence that the trans people are subjected to. Talking about the punishment for people who violate the rights of trans people, the release says as quoted by TheWire, “Penalties for sexual violence upon all transgender persons should be equivalent to existing penalties for sexual violence against women, while penalties for physical, verbal, emotional and economic abuse should be similarly commensurate with the punishments for such acts under existing laws. Specific atrocities that transgender and intersex people face must be defined and strictly penalized, including forced gender conformism, hormonal treatment and/or surgeries, aversion based pseudo-psychotherapies, forced marriages, stripping, etc., as well as custodial violence, dereliction of duty by state and medical authorities, and violence in educational, residential, medical and employment. All trans people should have the right to be handled by women police as per their choice and should be held in separate cells with access to gender-affirming healthcare, legal aid and education.”

Healthcare facilities. The bill does not address the gap regarding the lack of healthcare facilities provided to the transgender. 

In a landmark judgment, the Supreme Court in 2014 had recognised the transgender community as a third gender along with male and female. The Bench, constituting of Justices K S Radhakrishnan and A K Sikri, in separate but concurrent judgments, directed the Centre and states to take steps to treat trans people as socially and educationally backward classes and extend reservation for admission in educational institutions and for public appointments.

However, the latest amendments provide a platform to violate the essential Supreme Court original judgment.