In April 2015, when the Rajya Sabha passed a private member’s Bill protecting and providing rights for transgender persons, it looked like a welcome anniversary celebration of the landmark NALSA judgment, or the National Legal Services Authority vs. Union of India judgment.
The judgment gave broad directives to the central and state governments on affirmative action, public health, social welfare and other services to be made available for transgender people.
Where the Supreme Court’s decision had laid out a charter of possibilities for transgender rights in the country, this new Bill, drafted by the office of MP Tiruchi Siva, began to concretise the rights framework.
It was an unwieldy draft with a number of loopholes, but at the very least, it served as a crucial initiation of a much needed conversation.
This dialogue continued in December 2015 when the social justice and empowerment ministry made available its own draft Bill. They took the original Bill as a template and made some crucial additions, such as including a right to self-identification and a provision of reservation for transgender persons under the Other Backward Classes category. Most importantly, the ministry also actively solicited comments from civil society on the draft.
The ministry’s call was followed by numerous civil society consultations in the limited time that was provided and by the submission of a number of significantly detailed comment documents.
What the subsequent conversations were and what transpired within the halls of the ministry is unclear. What we know for sure is that the result, The Transgender Persons (Protection of Rights) Bill 2016, which was recently approved by the cabinet is an utter travesty that threatens to strip away the core of the NALSA judgment.
Flawed understanding of transgender identity
The biggest shock comes towards the beginning in the definition section of the Bill. One of the most significant aspects of the NALSA judgment was its expansive understanding of the transgender identity by how it embraced individuals who wanted to traverse the male-female identification binary and those who wanted to identify outside of it.
The former version of the transgender Bill honoured this understanding through a broad definition that included those who identified themselves by a gender other than the one assigned to them at birth. That definition affirmed the right of a transgender person to have the option of choosing to identify themselves either as a “man”, “woman” or “transgender”.
The current Bill completely eliminates the option of identification as either male or female. On top of it, the Bill reinforces injurious stereotypes about transgender persons as being part male and part female.
According to the draft, a transgender person is one who is:
(a) neither wholly female nor wholly male; or
(b) a combination of female or male or
(c) neither female not male.
Even though the NALSA judgment has remained far from being ideally implemented, the principle of self-identification and its broad understanding of gender has opened a space for transgender persons to obtain documents that identify them by the gender of their choice. With this provision, that space stands to be firmly shut.
Chapter three of the Bill goes on to provide a mechanism for the recognition of identity. This segment at least has the virtue of outlining a seemingly clear process. A transgender person may apply for a certificate of identity to the district magistrate, who will then refer the application to a district screening committee, which will issue a certificate of identity to the person.
This certificate will then be used as the basis for recording gender in all official documents and will be the basis for conferral of rights as a transgender person.
The basis for this provision comes from the report of an expert committee constituted by the social justice ministry in 2013. The issue here is that providing for such an onerous procedure stands in violation of the self-identification principle. It is a mechanism that has been strongly contested in various civil society suggestions submitted to the ministry.
Transgender groups have argued that such a certificate could be used for the specific process of channeling entitlement to individuals. However, to make it the very basis for otherwise recognising transgender identity in any given document again strikes at the heart of NALSA.
Moving to the question of recognition of discrimination, the Bill once again falls short. The single-section chapter on discrimination forbids discriminatory treatment across a number of spaces, including educational institutions, healthcare services and employment. What it fails to do, however, is provide a definition of discrimination to begin with.
The former draft of the Bill did in fact have such a definition. It understood discrimination as a distinction, exclusion or restriction on the basis of gender identity, which had the purpose or effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an equal basis with others, and also included denial of reasonable accommodation.
Such an understanding of discrimination would provide a guide to effectively interpreting the duties against discrimination, which otherwise stand as hollow admonishments.
Rendering them further hollow is the truly baffling lack of enforcement provisions in this Bill. This is a problem that has plagued earlier iterations of the law as well and even constant advocacy from civil society on this front seems to have left no mark on the government.
There is simply no punitive mechanism in place as far as potential violation of the duty against discrimination is concerned. There do, however, exist a number of offences correlated with penalties that don’t represent community needs. For instance, the Bill criminalises enticing a transgender person to indulge in the act of begging.
This not only ignores the ground reality that begging is one of the few income generating options available to a large number of transpersons, but provides another avenue for the misuse of the law. There have been a number of instances where transgender individuals have been disproportionately targeted under the general law related to beggary.
There are a number of other omissions – the provision of reservations for transgender persons – which were promised by NALSA and appeared in the former draft of the Bill, but have now disappeared.
A massive bureaucratic apparatus in the form of a National Council for Transgender Persons has been created, but has also been rendered toothless without any significant powers. Male pronouns are used instead of the language of gender inclusiveness that a law of this nature would at the very least warrant.
As far as civil society is concerned, the only suitable reaction to this proposed law would be to greet it with contempt – the very sentiment that it seems to have been drafted with.
Danish Sheikh is a lawyer based in Delhi.