New Delhi: After the cabinet last week approved a version of the Transgender Persons (Protection of Rights) Bill, 2018, transgender rights activists criticised the move at a press conference on Tuesday at the Press Club of India.
Members of the transgender, intersex and gender non-conforming communities convened a press conference demanding that the full text of the Bill be made public.
They called for the “full text of the Bill to be made available, not just in English, but all the languages of the country so that the contents of the Bill receive wide circulation and dissemination.”
The activists also insisted that inputs from the community be sought and the relevant modifications subsequently included before the draft Bill is tabled at the Lok Sabha.
The activists said that the proactive concern on their behalf was owing to the government’s previous version of the Bill which was passed in the Lok Sabha but lapsed after it was not passed in the Rajya Sabha.
The Transgender Persons (Protection of Rights) Bill passed in December 2018 contradicted several of the rights and protections upheld by the country’s Supreme Court in the NALSA judgement of 2014 and the recommendations of the Parliamentary Standing Committee.
Discrepancies between the 2018 Bill and the NALSA judgement
The criminalisation of enticement to beg
The 2018 Bill criminalised begging and other forms of livelihood like sex work that serves as the primary source of income for many in the trans communities. However, in the same year, the Delhi high court struck down the application of anti-begging provisions in the capital. This gave transgender people one of their prime sources of livelihood back.
As pointed out by Shreya Ila Anasuya in her report on the transgender community’s anger over the Bill, the fact remains that by seeking to criminalise begging by transgender persons across India, the state eliminated the very basis in livelihood that many in the trans community depend on for survival, given that many of them do not have access to employment in ways other citizens do.
The aforementioned report, published in The Wire last December, highlights many of the issues which returned as focal points on Tuesday’s press conference.
Often transgender persons are arrested and subjected to harassment, illegal detention, custodial torture and disproportionate violence under the pretext of laws that criminalise begging.
The press release by activists stated that: “It is an open fact that most transgender persons are harassed or booked under the begging prohibition laws, even when they are not begging or merely present at public places.”
Horizontal reservations and affirmative action
Another key demand raised by activists from trans communities was the inclusion of a provision for reservations and affirmative action for trans, intersex and gender-nonconforming people in employment, education, and healthcare. “Between criminalising begging and sex work, and denying reservations, it outs our very lives at stake,” the activists noted in the press release while calling unequivocally for horizontal reservations for members of the trans communities.
The activists also drew attention to the point noted by the parliamentary standing committee saying that the “transgender community does not enjoy parity with other genders when it comes to alternative modes of employment” and recommended that gender-based internal reservation be instituted for trans people with a strong anti-discrimination provision for educational and employment access.
The NALSA judgement in 2014 too recognised the acute discrimination faced by the trans communities and called for affirmative action and reservations in education and employment for transgender citizens.
On the possibility of cis men utilising the opportunities and facilities reserved for members of the transgender community, trans activist Karthik Bittu Kondaiah proposed a “process whereby people applying for benefits be entirely community monitored by independent members of the body.”
Punishments for sexual violence against trans people
The 2018 bill also did not adequately address the issue of sexual violence committed against trans people. As pointed out by activists at the press conference, by stipulating a punishment of upto two years for sexual violence against a trans person as opposed to seven years of imprisonment for sexual violence against non-trans women, the 2018 Bill discriminated against against the Trans, Intersex and GNC communities and strips them of “dignity and equality”.
Calling for penalties for violence against trans persons to be commensurate with the punishments for such acts under existing laws, the activists also specified that atrocities that transgender and intersex people face must be defined and strictly penalised.
Amrita Sarkar, a trans activist, noted that “the Bill needs to punish rape and sexual assault of a transgender person with the same penalty as the culprits of rape against cisgender women.“
Family and residence
Another serious drawback incorporated in the 2018 Bill was the requirement for all transgender people to reside with their birth family despite the fact, as trans persons have previously noted, that birth families are often the first sites of violence against these individuals. The statement called the provision a violation of the “constitutional rights of trans persons to freedom of residence”.
Stressing that the provision illustrated a lack of understanding of the dynamics of violence in familial homes and rehabilitation centres, the activists noted that “the definition of family should also be expanded to legally recognise families of choice, partnership, marriage and friendship” as per the standing committee’s recommendations.
“Trans people are not children and as adults of over 18 years of age can take decisions on their own about whether to stay at their own homes or with members of their community,” said Vyjayanti, a trans activist at the press conference.
Regarding the provision of the Bill that calls for a trans member to, at the direction of a competent court, be placed at a rehabilitation centre, Vyjayanti said that, “It is universal knowledge that remand homes and rehabilitation centres are no better than state-owned police-run brothels of trafficking and that they merely transfer people from one form of trafficking, say, sex trafficking, to bonded labour trafficking.” She also made mention of the Bihar sexual abuse exposé which “denuded the dark underbelly of these remand homes and rehabilitation centres”.
Elimination of screening committees
The 2018 Bill also upheld the establishment of screening committees, comprised of district magistrate, psychiatrists, medical officers, and one trans person, which would have the power to determine whether or not an applicant qualifies as transgender despite the NALSA judgement’s explicit recognition of the right to self-determination of one’s gender identity. Trans activists pointed out that the “process of ‘proving’ one’s gender in front of a committee violates multiple fundamental rights, and is utterly humiliating.”
It has been argued that the very presence of screening committees and the need for medical certification leave transgender persons’ identities subject to doubt until ‘approved’ by external gatekeepers. This, as Shreya Ila Anasuya points out in the report, will also inevitably lead to more discrimination and harassment by people empowered to screen and scrutinise trans people’s lives.
In addition, the Bill also mandated a “surgery” as the basis for applicants to identify with a binary gender – a requirement which violated the principle of self-determination of identity for Trans, Intersex, and GNC people, and also disenfranchised those who would be unable to afford surgeries as well as those who do not desire any surgeries. The Bill, as highlighted here, assumed that all transgender people universally would either want to or have the ability to go through medical and surgical procedures.
In this context the activists called for the implementation of the standing committee’s recommendation “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 persons’ rights under Article 19 and 21 of the Constitution”.
While the apex court’s verdict directed the state to provide social support for sex reassignment surgeries, the 2018 Bill included no such provision to subsidise the procedure.
Activists also called for gender-affirming medical procedures, full insurance coverage and the choice of male or female or separate wards for trans people in hospitals in addition to the establishment of National and State Trans Rights Commissions to tackle grievances and issues surrounding welfare and benefits. They also stressed on the need to sensitise staff and employees at the grass-roots level to the concerns and rights of members of trans communities.
Note: The story has been edited to add attribution and links to Shreya Ila Anasuya‘s earlier reporting in The Wire on the same issue.