Transgender persons’ rights group highlights various shortcomings of the Bill.
New Delhi: The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2 this year, claims to “provide for protection of rights of transgender persons and their welfare and for matters connected there with and incidental thereto.”
Sangama and Reach Law have appealed for an amendment to be made, claiming that the 2016 Bill has entirely distorted the landmark legislation for transgender persons that was introduced in 2014. The organisation, collaborating with a number of other groups and communities across India, decided to petition the prime minister, asking him to intervene in parliament to ensure that the ‘reductionist’ Bill is suitably amended.
Nisha Gulur, who works for Sangama and identifies as a transperson, said the 2016 Bill is a violation of human rights and needs to be strongly opposed. Her main concern is that it limits the possibility of self-identification for transgender persons, falling back on biologically defined patriarchal binaries. The prevailing consensus among the speakers was that the language used in the Bill is particularly offensive in this context. The definition of who constitutes a transgender person, and therefore comes under the ambit of the Bill, they feel, is restrictive and even, counterproductive.
According to the 2016 Bill, a transgender person is someone who is:
i) neither wholly female, nor wholly male
ii) a combination of female or male
iii) neither female nor male
In their petition to the prime minister, Sangama has stated that they find the use of this language “inappropriate and derogatory.”
B.T. Venkatesh of Reach Law explained that limiting the legislation to such terms means that the government is deciding who can or cannot identify as a transgender person. The transgender person is therefore denied the right to identify themselves as they choose.
Gulur emphasises that this definition violates human rights, in that it inhibits the freedom of determining one’s own identity.
Christy Raj demonstrates exactly how restrictive this definition is: Raj identifies as a female-to-male transperson, and is worried that the definition is far too narrow and thereby, not adequately representative. Raj said that they had made changes to the 2015 Bill in Bangalore, where Sangama operates from, and discussed relevant issues with ministers. However, none of these changes or discussions have been used in the 2016 Bill. In particular, Raj is concerned that the 2016 Bill is far to centred on male-to-female transgender persons’ issues, and the issues of female-to-male transpersons do not feature.
Gulur, also worried about the question of representation, said that such bills are drafted by people in parliament who do not, themselves, identify as transgender, and therefore cannot hope to understand the issues that need to addressed. The complete lack of electoral representation is an extremely large obstacle on the road to legislative resolution for transgender persons. Consequently, the 2016 Bill, she said, does not clearly address social welfare.
Saying that not enough was being done to understand who a transperson is, Venkatesh feared that the language used in the Bill, instead of normalising the life of transgender persons, will lead to more stigmatisation. He stressed the need for engaging the public, and for sensitisation alongside legislation, given that transgender persons are among the most marginalised communities in India.
With regard to representation, he believes that visibility is a big problem. The idea of a transgender person in the Indian imagination is largely restricted to the image of hijras. It leaves out a whole range of people who identify as transgender people, such as Raj, for instance. Furthermore, the visible population largely consists of people belonging to lower classes, lower castes and minorities, while transgender persons from the upper classes remain invisible. There is also a rural-urban divide, he said. Transgender persons cannot survive societal structures in rural areas, especially caste structures, and therefore are forced to migrate to cities, living as beggars and sex workers.
Any legislation should therefore address the systemic discrimination that transgender people face everyday, and give them space to exist on an equal footing.
Legally, this won’t be possible, unless corresponding changes are made to other laws, such as the hugely controversial Section 377 of the IPC, that criminalises homosexuality. The Transgender Persons Bill cannot co-exist with Section 377, because they are necessarily antithetical to each other.
Section 326, that prohibits emasculation, is again, in contradiction to the Bill. Legal medical care is often out of reach for transgender persons because of this law, and they are forced to go to unskilled or unauthorised people for surgery, which often gravely escalates the risk of death. Overall, Venkatesh is concerned that the Bill does not recognise the various forms of abuse and violence that transgender persons face.
Sampurna Behura from Reach Law called the draft a “sugar-candy Bill” and said that it failed to recognise the rights given to individuals by the Supreme Court, especially with its landmark judgment in 2014, which upheld the right of transpersons to decide their self-identified gender.
Rajesh Umadevi of Sangama said that studies conducted by their organisation have found that transgender persons face the most violence from their families and the police, as a consequence of which, legal redressal for any kind of discrimination or abuse has never been much of an option. The studies will be made public next week.
Umadevi said that they are planning to launch a nation-wide campaign to press for amending the 2016 Bill.