After initial wins, transgender rights in India are now moving in the opposite direction

By Yashi Jain 

The Transgender Persons Bill, 2016 (the Bill) which was instituted in the Lok Sabha in August 2016 is set to be re-introduced during the winter session of parliament. The Bill that is presumed to be progressive and help bring about gender equality is, in fact, paddling backwards.

Legal position

In a landmark judgment in 2014, the Supreme Court of India, for the first time acknowledged the right of transgender people to determine their own gender identity. It declared that transgender people must have the right to self-identification, and no medical examination is required. This judgment was welcomed by all stakeholders and termed to be a revolutionary step.

Along with the verdict, the apex court passed some directives on affirmative action, public health, social welfare and others, to improve the lives of the third gender. It had asked the central government to ensure the implementation of these directives within six months.

Journey of the Bill

Soon after, the government filed a petition through the Ministry of Social Justice and Empowerment (MoSJE) regarding the directives and their implementation, which led to the initial delay. Subsequently, Dravida Munnetra Kazhagam (DMK) Member of Parliament (MP) Tiruchi Siva introduced a private members’ bill in the Rajya Sabha which was passed unanimously. Before this private bill on transgender rights could reach the Lok Sabha, the MoSJE introduced their own bill. In December 2015, a draft of this bill was introduced amongst the public for feedback. According to Sampoorna, an organisation working towards equality for transgenders, the bill introduced in the Rajya Sabha was the most effective and comprehensive bill amongst all the bills tabled in the parliament.

After consultations on the draft bill, various human rights organisations and activists suggested potent changes to the draft. However, the bill that was tabled in the parliament in August 2016, had none of the suggested changes and was, in fact, a regressed version of its own draft, along with being in contradiction to the directives of the apex body. For a year, the bill was critiqued, leading to a few amendments. However, the government has decided to reject all recommendations and present the original 2016 Bill during this session.

Dangers of the proposed Bill

The Bill not only violates the Supreme Court directives (of a trans person having the right to decide their gender and introduces a district level screening committee to do the honours), it also does not delineate the definition of a transgender right. A transgender is someone who has been socially, legally and medically categorized a gender but possesses a mismatched self-identity.

The Bill has got this completely mistaken and even said all transgenders are intersex, while this may not be true for all. The definition in the Bill reads “A transgender person is someone who is neither wholly female nor wholly male, or a combination of female and male, or neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans men and trans women, persons with intersex variations and gender queers

The Bill has criminalised begging, a move which has not been welcomed well, as it plays a role in criminalising a large part of the trans community as they struggle to make a living. The community that has been marginalised and stigmatised for so long, has also not been provided with affirmative action in education and employment, both of which were promised to them in the directives by the court.

Societal reaction

Sampoorna and a lot of other institutes and transgender persons are not happy with the protection provided to them, as well as the health care provisions in the Bill. They would like to see strict punishments for the human rights violations against the trans community. Their dissatisfaction with the Bill led them to start a campaign against it which has garnered huge support even from international organisations, which are now requesting the Indian government to bring much-needed amendments to the Bill. The campaign has received widespread support, showcasing a consensus view of the government’s faults.

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