The Transgender Bill, 2016, passed by the Union cabinet on 20th July 2016, was aimed at empowering India’s transgender community and address the various human rights violations faced by them. But the bill’s biggest flaw was right at the beginning in the definition section itself. According to the draft, a transgender person is one who is:
“(a) neither wholly female nor wholly male; or
(b) a combination of female or male or
(c) neither female not male”
It needs to be noted that the bill also includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ but the same have been conveniently omitted from the definition section of the bill.
One of the most significant aspects of the judgement in National Legal Services Authority v Union of India, in 2014 by the Supreme Court of India, was its broad understanding of the transgender identity by how it accepted individuals who wanted to be identified outside the male-female binary. The previous version of the Transgender Bill implemented this judgement through an expansive definition that included those who identified themselves by a gender other than the one assigned to them at birth. That definition affirmed the right of a transgender person to have the option of choosing to identify themselves either as a “man, woman or transgender”. The present Transgender Bill completely eliminates the option of identification as either male or female. On top of it, the bill reinforces harmful stereotypes about transgender persons as being part male and part female.
Even though the National Legal Services Authority v. Union of India judgment has remained far from being implemented, the principle of self-identification and its expansive understanding of the term ‘gender’ has opened a space for members of the transgender community to obtain documents that identify them by the gender of their choice. With this bill however, that space stands to be firmly shut.
Then comes the second fallacy of the Transgender Bill, 2016 – Recognition of Discrimination. The bill fails to include a definition of ‘discrimination’. However, the previous draft of the Transgender Bill had such a definition. It understood ‘discrimination’ as a “distinction, exclusion or restriction on the basis of gender identity, which had the purpose or effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an equal basis with others, and also included denial of reasonable accommodation”. Such a definition of ‘discrimination’ would provide a platform to effectively interpreting the duties against discrimination, which otherwise stand as hollow admonishments.
It is true that Chapter II of the draft bill mentions that no transgender person should be discriminated against when in custody but we need to realize that societal realities cannot be ignored. Transgender persons and those associated with them are constantly ill-treated by the police before taking them into custody, that too on false charges. Failure to mention any method of enforcement, and talking only about discrimination sounds like a utopian measure.
Rendering Chapter II of the Transgender Bill, 2016 further hollow is the lack of enforcement provisions in this draft of the bill. This is a problem that had plagued earlier iterations of the bill as well and even constant advocacy from the various welfare organizations on this front seems to have made no difference to the government. There is no punitive mechanism in place as far as potential violation of the duty against discrimination is concerned. There do, however, exist a number of offences correlated with penalties that do not represent the needs of the transgender community. For instance, the bill criminalises enticing a transgender person to indulge in the act of begging. This not only ignores the ground reality that begging is one of the few income-generating options available to a large number of transgenders, but provides another avenue for the misuse of the law. There have been a number of instances where transgender individuals have been disproportionately targeted under the general law related to beggary.
Chapter III of the Transgender Bill, 2016 goes on to provide a mechanism for the recognition of the transgender identity. This segment has the virtue of outlining a seemingly clear process. A transgender person may apply for a certificate of identity to the district magistrate, who will then refer the application to a district screening committee, which will issue a certificate of identity to the person. This certificate will then be used as the basis for recording gender in all official documents and will be the basis for conferral of rights as a transgender person.
The basis for this provision comes from the report of an expert committee constituted by the Ministry of Social Justice in 2013. The issue here is that providing for such an onerous procedure stands in violation of the self-identification principle. Transgender groups have argued that such a certificate could be used for the specific process of channelling entitlement to individuals. However, to make it the entire basis for recognising transgender identity in any given document strikes at the foundation of the National Legal Services Authority v. Union of India judgement.
There are a number of other omissions – the provision of reservations for transgender persons – which were promised by the Supreme Court ruling in National Legal Services Authority v. Union of India and appeared in the previous draft of the Transgender Bill, but have now disappeared into thin air. A massive bureaucratic apparatus in the form of a National Council for Transgender Persons has been created, but the same has been rendered a toothless tiger without any significant powers. Another important issue which has been ignored is the exclusion of transgender communities. It needs to be recognized that there exist several transgender communities, each with its own set of beliefs, practises etc. as opposed to only a transgender individual. This bill’s awkward silence on a broader series of rights of transgender individuals in their private sphere such as marriage, inheritance, adoption, gives the impression of a half-baked cake and leaves a lot to be desired.
- Cowart, D., “Transgender Prisoners Face Sexual Assault and Discrimination at Pittsburgh Jail”, ACLU, November 13 2017, https://www.aclu.org/blog/lgbt-rights/criminal-justice-reform-lgbt-people/transgender-prisoners-face-sexual-assault-and
- Hafeez, M., “Transgender tries to hang herself”, The Times of India, October 25 2017, https://timesofindia.indiatimes.com/city/mumbai/whatsapp-abuse-transgender-tries-to-hang-herself/articleshow/61209357.cms
- Mishkin, K., “After transgender victims are misidentified in local police reports, focus shifts to federal reporting standards”, Daily Press, April 4 2017, http://www.dailypress.com/news/crime/dp-nws-murder-suicide-20170404-story.html
- Imran, M., “Police official suspended after transgender community protests alleged harassment”, The Dawn, September 14 2017, https://www.dawn.com/news/1357443
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