On Constitution Day, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019 after a motion to refer it to a Select Committee of the Rajya Sabha was defeated. The Lok Sabha had passed the Bill on August 5 this year.
The transgender community has opposed the Bill vehemently, with activists calling Constitution Day a ‘Gender Justice Murder Day’ for the community.
Earlier, there have been widespread protests against the bill by trans, intersex and gender non-binary persons and communities across the country.
This year July, Human Rights Watch had asked that the government ensure that the bill follow the 2014 Supreme Court ruling on the rights of transgender people. “This bill is unclear on a transgender person’s right to self-identify, which India’s Supreme Court recognized in a landmark judgment in 2014,” it said in a statement.
The Sampoorna Working Group , trans activists collective explains the issues with the Transgender Bill 2019:
The issue of identification
According to this Bill, only a person identifying as transgender has the right to “self-perceived” gender identity. Such a person should apply for a certificate to the District Magistrate, who on the basis of as yet unnamed procedures and documents, will issue a certificate to the person as a transgender person.
If a person wants to identify as male or female, surgery certificate has to be issued by a Medical Superintendent or Chief Medical Officer of the hospital, in the prescribed format [yet to be formulated] and submitted to the District Magistrate for revision of the identity to male or female.
This is a gross violation of the Supreme Court NALSA judgment passed in 2014 that granted the right to self-determination of gender as male, female or third gender irrespective of surgical or hormonal interventions. In fact, the judgment clearly states that “any insistence for SRS for declaring one’s gender is immoral and illegal” (Pg 110 of the SC decision)
Issue of Change of Name
According to this bill, a person who has been issued a certificate of identity as transgender or a revised certificate as male or female can change “the first name in the birth certificate and all other official documents relating to the identity of such person”. Trans activists fail to understand why such a provision has been included specifying only the provision for change in the first name! Does the govt want to not give Transgender the option to change Trans people’s last names because, in the Indian context, last names very often denote caste? When there is provision for cisgender persons to change their last names also due to marriage or change in religion why has this been denied to trans persons?
Issue of Intersex Persons
The Bills states: (k ) “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations,genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
The Bill continues to conflate the intersex persons as transgender, despite the warning from the World Professional Association of Transgender Health [WPATH].
The Supreme Court judgment has clearly stated that trans persons must be considered socially and economically backward and affirmative action in cases of admission in educational institutions and for public appointments must be extended. However, the Bill is silent on this crucial issue inspite of them demanding consistently for horizontal reservations to be implemented.
Attack on hijra households
The Bill defines “family” as “a group of people related by blood or marriage or by adoption made in accordance with law.
Additionally the Bill states: ”Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre”.
By these measures, the Bill denies the continuous demand since the earlist version of this bill, to recognise hijra households as ‘family’, since historically these have been the only protective space for trans, intersex and gender non-binary people, who were disowned by their natal families.
Not redefining the concept of ‘family’ and forcing such persons to be placed in rehabilitation centres, is a violation of Transgender people’s fundamental rights and historical right to chosen families.
Nominations for National Council of Transgender Persons
The clause states that the National Council for Transgender Persons is to “have five representatives of transgender community, by rotation, from the State Governments and Union territories, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government”.
No democratic mechanisms and structures have been proposed in the formation of this National Council. As a result, the National Council of Transgender Person is going to be massively disproportionate towards Government presence. Out of at least 25 such nominated members, only 5 trans persons are to be onboard. In addition, the most worrying aspect regarding the constitution of this Council is that all nominations are in the control of the Government. Even the NGO representations onto this Council are mandated to be made by the Government.
Given this level of control by the Government, it is clear what kind of corruption and sycophancy this will unleash and how only the powerful groups who are aligned with the Central Government will be nominated to these posts. It’s also clear that any dissenting voices will be kept out, as has been happening in various sectors of public life, in the last term of this government.
Problematic language of “rehabilitation”
Under Chapter IV, Welfare Measures by the Govt, it says “The appropriate Government shall take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such persons”. Transgender have previously pointed out the issue with this language of rehabilitation. It is unclear what the government wants to “rescue, protect and rehabilitate” Transgender from!
Lesser punishments for crimes against trans people
The Bill says, anyone who “harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse,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”. Since 2016, Transgender have raised the issue of the Bill proposing lesser punishments for perpetrators of crimes against trans persons. There must be proportional punishments for crimes against Transgender if this is indeed a Bill that will uphold the right to equality, dignity and life.
Attack on legal rights
The Bill says “No suit, prosecution or other legal proceedings shall lie against the appropriate Government or any local authority or any officer of the Government in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act and any rules made thereunder.”
The right to contest the law is a fundamental right granted to all citizens. By including this provision, the government is attempting to take away the Transgender community’s right to contest provisions and violations under this Bill and its implementation.
Moreover, the Bill also states that the Central Govt can by order, published in the Official Gazette, make such provisions, for expediting or removing any difficulties arising out of this Bill, provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.