Coercion under the guise of protection - Transgender Bill 2018


By Geetika Srivastava

Sumitra and Jahnvi, a mother-daughter duo from Karnataka, were one of the several hundreds of protesters that were present at New Delhi's Jantar Mantar premises to raise their voices against the Transgender Persons (Protection of Rights) Bill, 2018 this Friday. Abandoned at a young age by her biological parents, Jahnvi was adopted and raised within the transgender community. "We don't care if there is no bill at all, but we cannot stand this bill, in its present form, to be passed", her mother says. This is the scale of fear and worry that the bill has caused to members of the community- they would rather they have no rights than have this law come into place.The Bill was passed in the Lok Sabha last week, and is yet to be tabled at the Rajya Sabha. Along with the duo, several other members of the transgender community descended to raise their voices against what they deem as a draconian measure that will deprive them of their basic rights and livelihood. Opposition party leaders such as Derek O Brian from the Trinamool Congress were also present to address the gathering.

The bill was introduced in the parliament all the way back in 2016, in the aftermath and to bring effect to the NALSA judgment given by the Apex Court, which affirmed the freedom of self determination of one's gender. It was then referred to a standing committee for further consultations with the LGBTQIA+ community. However, other than a more sensitive definition of who can be pronounced a transgender, the bill hardly contains any modifications of its original form.

State, not self, determines gender
LGBTQIA+ activists have often argued that gender is a construct, and that sex assigned at birth and gender are two different things. This view was also endorsed by the Supreme Court in the NALSA judgment back in 2014, where the court unequivocally granted the right to citizens to self-identify and determine their gender. The court stated the following:

"Gender identity refers to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual's self-identification as a man, woman, transgender or other identified category."

The bill in its present form is argued to blatantly violate this right granted by the Apex Court, as it provides for the constitution of a Screening Committee which shall determine the gender of the person on receipt of an application made to the District Magistrate.This means one needs the state's approval and certification in order to identify oneself as a person of a third gender, which seems inherently unconstitutional and blatantly violative of the Supreme Court's judgment that states that "any procedure for identification of transgender persons' which goes beyond self-identification and is likely to involve an element of medical, biological or mental assessment, would violate transgender person's rights under Article 19 and 21 of the Constitution."

"When my own biological parents didn't understand what my gender was and what I felt, how can the state tell me what my gender is?" says Jahnvi. Moreover, this has also risen fears in the minds of many as to the kind of examination that would be held in order to determine one's identity, which may also include the horror of stripping in front of medical professionals to determine one's gender. Moreover, if someone wants to identify themselves as male or female, they will have to compulsorily go through gender reassignment surgery. This reduces gender down to only a binary.

Rights but no implementation mechanisms
While the bill clearly states its aims and objectives, it never mentions a single mechanism through which the government can go about implementing these steps. While the bill does mention certain steps that it would take towards providing sufficient healthcare, it is almost silent in the area of education. The bill states that educational institutions shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons. However, one can question the need for such sensitisation when the government hasn't even ensured the presence of the stigmatised trans community in educational institutions (The NALSA judgment directed the government "to extend all kinds of reservations in cases of admission in educational institutions and for public appointments" to transgender persons.) No affirmative action in the form of reservation has been provided. Another disturbing aspect is that there is no clear definition of "discrimination" or it's scope, leaving much room for gaps and loopholes that can be misused.

Livelihood criminalised
The bill in its present form has also criminalised the act of "enticing someone to beg." This particular provision has left the trans community helpless and unsure about what they can do for a living. In India, where the trans community depends on alms in exchange of blessings as an age-old tradition, they are left with no alternate avenue to earn a source of livelihood. While the bill mentions 'vocational training', it is unsure and unclear when and how that might happen. However, if the bill becomes law, it will lead to the criminalisation of begging immediately, leaving the community with no choice.

The Bill states that the State will ensure the "rescue, protection and rehabilitation" of transgender persons. This leads wide and ample powers with state mechanisms to harass various persons under the garb of their "rehabilitation" as was seen previously in terms of begging.

Unequal justice, ambiguous laws
According to the bill, a transgender person who has undergone the torment of being physically or sexually assaulted will not be held up to the same standards as a cisgender woman. The maximum punishment for the same is 2 years, as opposed to the rape of a woman, that can attract a maximum imprisonment for life. There seems to be no logic to this differentiation.

Moreover, several other laws, including marriage laws, inheritance laws, even criminal laws, have used specific pronouns such as "he" or "she." The applicability of these laws to transgender persons is also unspecified, and therefore, unclear.

It is quite apparent that the bill contains various provisions that are of widespread concern to many. Transgender rights activists are hoping to resort to state advocacy and in case the bill is passed, legal remedy. One hopes that the government would listen to what the people have to say and allow changes to be made, keeping in mind the best interests of the community.

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