This subsidiary and secondary approach towards deliberating and drafting a Bill for transgenders will result in a half-hearted implementation, leading to forged data and stereotypes
The trans-community is not happy with the Transgender Persons (Protection of Rights) Bill, 2019 and some of its provisions are being widely debated, criticised and opposed by it. “Some may see it as positive socio-cultural change but the legal aspect of this Bill is bad,” says Anirudh Gupta, an activist and member of the trans-community. Is the Government listening to these voices?
What has majorly upset the trans-community is that the Bill was drafted without taking any inputs from it and there are many loopholes that need to be plugged.
The right to self-identification: The main concern of the community is that the Bill doesn’t grant it the right to determine gender. Instead, its members have to present their cases before a District Magistrate (DM) to get certified as a transgender. Prior to applying for an identification certificate, the Bill mandates them to secure a medical certificate from the area’s Chief Medical Officer confirming their orientation. This, the community believes, is in gross violation of the 2014 Supreme Court verdict in the National Legal Services Authority vs Union of India case. The ruling had directed the Central Government to allow transgenders to determine their own gender irrespective of hormonal or surgical interventions. This is also contrary to another provision of the Bill that they would have the right of self-identification.
Shanthi Muniswamy, a member of the community, says, “How can a screening committee be authorised to confirm whether or not I am a transgender? The lawmakers should be sensitive. What if they need to prove their genders to officers and confirm it with a certificate? There is no such law for a male and female. Then, is it justified to make it a rule for the third gender?”
No room for appeal or review after rejection by the DM: As per the Bill, if the DM refuses to acknowledge the medical certificate, the appellant will not get the certificate of identification. The application will not be reviewed after that. The fact that the petitioners will not have any forum to appeal to has the trans-community up in arms. This provision is unjust to an extent where it will not only deprive these individuals of their basic rights but even their identity. The trans-community has fought this battle of identity since birth and hasn’t succumbed to societal pressure. But as this battle goes legal, its members will legally have to live with the same situation and same identity for the rest of their lives. Lawmakers need to acknowledge the fact that the rejection of a person not being a transgender can be due to several reasons, including corruption and medical negligence. In all legal matters, the Constitution accords every person the right to appeal to higher authorities and even to the Supreme Court (SC). The Government assigns a public prosecutor for alleged criminals. So the question arises why this basic right is being denied to the third gender?
If this Bill is for the emancipation of transgenders, then why are their basic rights differing from that of other citizens on the basis of gender? This in a way, violates Article 15 of the Indian Constitution, which prohibits discrimination on grounds of race, caste, sex or place of birth.
Sex work is an issue which the Bill fails to address: Isn’t sex work a harsh reality of our society? The streets of Central Delhi at midnight are flooded with sex workers, including transgenders. The Government has failed to address this issue. The extent of exploitation of transgenders in this trade is beyond imagination. They are beaten up, sexually assaulted and thrown into the streets. Their complaints are barely registered in such cases as a transgender getting molested or raped is not something that society wants to accept.
A major explanation of this negation by society lies in the argument that the sex trade is exploitative, irrespective of the gender. But when we talk of women in prostitution and rehabilitating them, then why aren’t we talking and thinking about transgenders the very same way? How can there be such a stark demarcation of exploitation and brutality based on gender? Have we found a new category that we can discriminate? It is important to accept that trans people are marginalised in layers. More than a mere drafting of a Bill, the Government needs to empower transgenders economically and socially.
Discrimination over the complaints of sexual harassment between women and transgenders: The Transgender Persons (Protection of Rights Bill), 2019 states the period of punishment for sexual harassment and assault on a transgender to be six months which can exceed up to two years in prison with penalty. A period of one to five years is the least imprisonment when the same cases are lodged for an assault on a woman.The punishment for sexual assault, harassment and bonded labour is comparatively stringent in case of heterosexuals as compared to transgenders.
Definition of family: The Bill doesn’t recognise hijra households where they all feel protected and find a sense of belonging. The Bill defines a family as a group of people related by blood, marriage or adoption. The community does not find this in consonance with the reality of their lives, where trans-children are mostly abandoned and disowned at a tender age. Grace Banu, a transgender woman from Tamil Nadu, said “that my family got me admitted in an asylum after knowing about my gender.” Since then, she herself has adopted seven trans-kids. Stories like these are neither rare nor unreal. Therefore, how can the definition of the family be so unreal and incomplete?
Awareness in households, public offices, educational institutes, hospitals and police stations: Despite making laws and drafting Bills, there have been a number of cases where transgenders have been harassed and discriminated in Government institutions.
The case of Shanavi Ponnusamy, a trans woman from Tamil Nadu, comes to mind. She was allegedly denied the job of cabin crew by Air India despite clearing the exam. Another widely known case is of K Prithika Yashini, the first transwoman Sub-Inspector in India. It took an order from the Madras High Court for the Tamil Nadu Recruitment Board to appoint her.
Unfortunately we have a huge number of cases like these where the basic opportunities of education and livelihood of the transgenders have been questioned. Therefore, there is a huge demand of sensitisation in all walks of public and private sphere.
The question arises, Are the Ministers themselves ready for this Bill? Why is this issue being discussed amid some or the other scuffle? The history of this Bill reflects the loopholes every single time it is drafted. The Transgender Persons (Protection of Rights) 2018 consisted of many lacuna such as illogical and narrow defining of the transgender which was, “Somebody as not neither wholly male nor wholly female.” It criminalised begging on the streets exclusively for the transgenders. The National Council for Transgender Persons was to have a psychiatrist in the panel along with the DM. How then are the Government and the so-called policy makers any different from any other ill-informed person, who sees it as a mental illness which is to be treated by a psychiatrist. If the aim is to pass a Bill just for the sake of having another law in the country, then it will face the same fate as many other pre-existing laws. For instance, despite decriminalisation of Article 377, recently Rasika Gopalkrishnan and Shivani Singh, two females in their early twenties, were thrown out of a Chennai hotel late at midnight for holding hands and hugging. It is one of the trillion examples of the flawed implementation of laws.
This subsidiary and secondary approach towards deliberating and drafting a Bill for transgenders will result in a half-hearted implementation, leading to forged data and stereotypes. It is crucial to realise that rights and justice have lately been denied to the “Third Gender” despite being recognised in 2014. It is high time for the Government to pay the required attention while deliberating the rights of these individuals. This is a matter of identity, life, right and fight of a huge part of society. The realisation that it is not just any other issue will help the Government in taking all concerns into account which will ensure better possibilities of the law being implemented on the ground.
(The writer is post graduate scholar, Department of Political Science, University of Delhi)