On Monday, December 17, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill 2016 sparking country-wide outrage from and on behalf of the transgender community. After efforts to get Section 377 scrapped, trans Indians find themselves in another political battle for their right to equality; a battle that could potentially strip them of rights and protections that were already granted to them in the Supreme Court’s NALSA judgment of 2014. If you’re confused about why a bill claiming to protect trans rights is being vehemently opposed by the LGBTQ+ community, here’s everything you need to know:
What Is The NALSA Judgment?
Today’s controversy around the bill can be traced back to April 2014 when The National Legal Services Authority (NALSA) was involved in legal proceedings against the government in the Supreme Court over the right for transgender Indians to identify as trans. NALSA is an organisation that provides free legal services to “weaker sections of society and to organize Lok Adalats for amicable settlement of disputes” in every state.
And in NALSA v. Union of India, a case that went to the Supreme Court, it did just that. In this case, a Supreme Court bench of two judges, Justices K.S. Radhakrishnan and A.K. Sikri, recognised transgender Indians as a “third gender” while pointing out that the transgender experience in India is wrot with discrimination in education, health care, employment, and more. Other than the trans community finally gaining some visibility, this judgement was extremely important because it declared that “no one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy as a requirement for legal recognition of their gender identity.”
Simply put: if you identify as transgender, you were considered so. Your word was enough proof of a trans identity in the eyes of the law.
The judgment also added that trans individuals are “entitled to equality before the law and the equal protection of the law without any such discrimination.” This was a landmark judgment celebrated by the trans community across India. Laxmi Narayan Tripathi, transgender activist and one of the petitioners in the case, told BBC News, “Today, for the first time I feel very proud to be an Indian.”
Were There Still Issues After The NALSA Judgement?
Yes, there were. While the NALSA judgment itself was well-received, it came on the heels of the Supreme Court criminalising gay sex in 2009 by reversing an order by the Delhi High Court that decriminalised it. So, in 2014, members of the LBGTQ+ community were in a peculiar situation– they were both recognised and protected by the Indian Constitution, but could be also criminalised for having consensual sex.
How The NALSA Judgment Impacted Section 377
Lawyers believed that along with the 2017 Supreme Court judgment ensuring the right to privacy in a case about Aadhar, the 2014 NALSA judgment could be used to argue for the scrapping of Section 377, a colonial-era law that labelled gay sex as an “unnatural offence” that was punishable with life imprisonment, a jail term of 10 years or a fine. And on September 6, 2018, India as we know it exploded in all colours of the rainbow when Section 377 was finally scrapped and the LBGTQ+ community was free to have sex with whoever they wanted in private.
So What’s The Problem Now?
To understand this, we need to go back to 2014 again for a moment. In the same year as the historic NALSA judgment, the Rajya Sabha unanimously passed the “Rights of Transgender Persons Bill” brought by Tiruchi Siva, MP of Tamil Nadu. This bill is called a “private member’s bill,” meaning it was introduced by a member of parliament who is not in the Prime Minister’s cabinet.
Siva’s bill addressed a number of issues that plague the transgender community: rampant violence, sexual abuse, and a severe lack of employment, quality legal advice, and education. Although Siva definitely got pushback from the BJP government, his bill was passed with bipartisan support and members of the Rajya Sabha unanimously voted in its favour. The Rajya Sabha entertaining a bill and actually taking action on it beyond debate is an extraordinary feat that hadn’t been accomplished in 46 years.
However, when Siva’s bill was introduced in the Lok Sabha, it did not pass. But the story doesn’t end here: trouble was spotted on the horizon when the Ministry of Social Justice and Empowerment proposed a new bill, the Transgender Persons (Protection of Rights) Bill 2016, claiming to “provide protection of rights” of trans people.
This bill was passed on Monday.
The Glaring Issues With The Bill
Well, in a nutshell, the government’s Transgender Persons (Protection of Rights) Bill 2016 violates not only the NALSA judgment but also fundamental rights overall.
The bill says:
You must apply for a certificate issued by a district screening committee to be legally recognised as trans. If a minor wants to change their gender, an application must be submitted by a family member. If you want to identify as either a man or a woman, you will have to go through medical treatments and submit documents as proof. Only then will a gender change be granted.
(1) This clause directly violates the NALSA judgment that said your word is enough proof. Having other people “certify” your identity not only takes agency away from you and your body, but also ensures bureaucracy and red tape.
(2) It assumes everyone wants to go through sex reassignment surgery (SRS) or hormonal treatments and has enough finances to do so.
(3) It effectively creates a “two-tier system” where people who have not undergone SRS can only identify as “transgender,” not male or female.
(4) Medical professionals often lack training and sensitivity when dealing with trans individuals.
The bill says:
When a parent or family member “is unable to take care of a transgender,” a court will order the person to be placed in a “rehabilitation centre.”
(1) The assumption that other family members must “take care” of a trans person who could be sent to a rehab centre likens trans identities to mental illness and further stigmatizes them.
(2) This shows a disregard for the fact that trans kids face domestic violence and intolerance from their families. It also ignores the fact that LGBTQ+ Indians have immensely strong bonds within the community that take the place of abusive families.
(3) There is no age specified here, so this can be used to control even those who aren’t minors.
The bill says:
The act of begging or forced or bonded labour is criminal with a maximum sentence of two years.
(1) This is extremely problematic for two reasons. First that it assumes transgender people have unrestricted access to employment and that there is no discrimination in or barriers to organised and legal workplaces.
(2) Second, it does not provide an alternative to begging or solutions for trans people who are already begging.
The bill says:
Anyone who physically or mentally abuses or sexually assaults a trans person is punishable for a minimum of 6 months and maximum of two years.
(1) In India, in a case of rape of adult women, the perpetrators are punishable by 7 to 10 years imprisonment, with a possibility of life imprisonment. For the rape of minors, the minimum punishment is 10 to 20 years or life imprisonment. Gang rape of a minor earns a sentence of imprisonment.
(2) Sexual assault, abuse, and harassment is rampant in the trans community. Yet, the maximum sentence for perpetrators of violence against trans individuals is two years.
The bill says:
Nothing on reservations and quotas in education or employment, which would be alternatives to criminalised begging. No elaboration on specific anti-discriminatory measures. Nothing on affordable healthcare.
Does This Bill Do Anything Right?
Yes. In one of the 27 amendments to the bill, the definition of transgender has been improved. It now reads: “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman... person with intersec variations, gender-queer and person having such socio-cultural identities as kinnar, hijra, aravani and jogta.” But this, of course, is not nearly redeeming enough.
Why Does This All Matter?
Well, to put matters into perspective: India has an estimated 25 lakh transgender people, but this number could be much higher because social stigma prevents people from coming out. A bill that impacts the lives of so many should be scrutinised and criticised, especially one that is as problematic and contentious as the Transgender Persons (Protection of Rights) Bill 2016 is.
When policies are implemented in a country as diverse as India, there are two important things to always keep in mind. Progressive action, while taken swiftly by governments and courts, does not trickle down to society overnight. However, “when [equality] is enshrined in the law, there is a basis on which you can fight for your rights… You can say that under the law of the land, you are not allowed to treat me differently. But if the law itself is discriminatory, how will redressal happen?” says Shreya Ila Anasuya, writer and managing editor of Skin Stories, a weekly publication on sexuality, gender, and disability at the non-profit Point of View.
It’s also important to keep in mind that whenever policies are made regarding a marginalised community, members of that community must be consulted because they have firsthand knowledge of their experience, problems, and the solutions that would serve them best. But, in the case of this bill, several trans rights activists have said that the government has not taken into consideration any of their recommendations.
“Nobody was consulted before the bill was drafted. After it was, many people in the [trans] community were able to be deposed in front of the Standing Committee. But all of our suggestions were rejected,” says Bittu Karthik, Associate professor of Biology and psychology at Ashoka University who is also a part of the Telangana Hijra intersex transgender Samiti and Karnataka janashakti.
Anasuya adds, “Trans collectives all over the country have continuously been engaging with the government and giving alternatives and suggestions. It’s not like people are angry and have said nothing. The community is very articulate.” Other activists like Aditya Bhatavia, board member of Transgender Welfare Equity & Empowerment Trust (TWEET), have said also the bill is “disrespectful and in direct contradiction with the NALSA judgment.”
So How Do We Move Forward?
Protests and press conferences have erupted across major Indian cities like Bangalore, Pune, Delhi, and Kolkata condemning the bill in its current form. Even today, a large protest is being organised in Tamil Nadu.
Karthik says that these demonstrations are a means to finally have the trans community’s voice heard in good faith. For now, opponents of the bill are attempting to mobilise members of the Rajya Sabha who the community is hoping will refer the bill to the Select Committee that can review it and make necessary recommendations and changes.
You can read the full bill here.
Feature image credit: Vox
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