Passed in the Lok Sabha on August 05, 2019:
The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in the Lok Sabha on July 19, 2019, by the minister of Social Justice & Empowerment, Minister Thawarchand Gehlot. After much discussion on the provisions of the bill, the Lok Sabha passed the bill on August 05, 2019. Tracing down a legislative solution for transgender rights, the bill was first introduced in the year 2015 an MP of the BJP, Baijayant Panda. It was stated on the floor of the Parliament before introducing the bill that according to the 2011 census, over 4.8 lakh (0.04%) people belong to the trans community. The government had a serious issue before it, and after discussions and consultations with expert committees, this bill was drafted. Ratan Lal Kataria, Ministry of Social Justice and Empowerment appealed to members to pass the bill on the floor of the house.
Since 2015, the aim of presenting a bill on transgender rights is to answer the social stigma and ostracism faced by the transgender community in Indian society. In 2015, it was also the first private member’s bill having been passed in the Upper House in the history of 45 years. A private member’s bill is the provision for any person not acting on behalf of an executive, to present a bill. The earlier (2015) version of the bill was considered to be ‘ideal’ and in consonance with the judgment of the Supreme Court in the case of National Legal Services Authority (NALSA). The bill gave transgender the right to self-identification as either male, female or the third gender. It also provided for reservation in educational institutions as well as at the level of employment.
‘Mere lip service’, says the trans community.
However, the 2019 version of the bill seems not to have attracted much support for itself among the concerned community. It has been said to be a ‘mere lip service’, ignoring grievances of ostracism with no provisions to uplift the current situation of transgender. Here is why the 2019 Transgender Bill is problematic!
The primary reason is that the passing of the bill went without any debate or discussion despite fierce opposition. The bill was passed on the same day as the abrogation of Article 370 in Jammu and Kashmir, came into the picture. There was an upheaval in the Parliament, and thus the bill did not see any discussion around it.
How do you define a ‘transgender’?
The 2019 version of the bill, defines a transgender as a person whose gender does not match the gender assigned to them by birth. This definition purports to include trans-man or trans-woman, people with intersex variations, genderqueer and other people with specific socio-cultural identities such as Kinner, hijra, arvani or jogta. It does not make any distinction based on whether or not such person has undergone surgery of sex re-assignment, laser or hormone therapy or any other similar therapy.
One of the significant objections highlighted in the bill is that it uses the words’ intersex’ and ‘transgender’, interchangeably. However, it is widely known about the inherent differences in these two terms. Transgender people are identified as someone born with the wrong body, while intersex is people who are born with the physical characteristic not aligning themselves to a gender binary. In objection to the use of words, while defining ‘transgender’, Esvi Anbu Kothazham, a Mumbai based transgender remarked in their interview that the use of the two distinct phrases as interchangeable is intentional. They go ahead to say that it is being done to erase the intersex identity and the long history of medical violence against people of the community. Like many others who identify themselves as outside the gender binary, Kothazham uses the pronoun ‘they’ as genderqueer.
The bill has been called the ‘worst nightmare coming true’. A Delhi-based criminologist Sai Boruthu said in a conversation with The Print that all the bill does is talk about regulation and re-regulation of the trans people’s bodies with no mention about their rights.
The concept of ‘rehabilitation’ for the trans:
The community has expressed deep anguish over how the bill is providing for the courts to put a trans person in the rehabilitation centre, in case the family refuses to take care. The concept of ‘rehabilitation homes’ has not been explained thoroughly in the bill and thus also fails to explain the nature of training which will be given to the employees of such homes were trans people would be lodged. There have been widespread allegations by a member of the community against the bill stating that there is only a provision for the national-level council for the city, with no similar set up in the state or district level.
The point that the bill is failing to address is that the trans community needs reservation policy, in education, employment and political representation. They say that reservation is the way to address the needs of all sections of the transgender community.
The bill has seen many versions since 2015. First, was drafted by the government itself, introduced in the Lok Sabha in August 2016 as the Transgender Persons (Protection of Rights) bill. This version of the bill was regarded as ‘regressive’ and to be in complete violation of the guidelines laid down in the NALSA judgment. Then the bill got referred to the standing committee, for its views in September 2016. The report of the standing committee was submitted in 2017. Among the many recommendations of the standing committee, some pertained to housing assistance schemes for the transgender, an umbrella scheme for their empowerment and the provision for self-identification as ‘man, woman or transgender’.
What does criminalization of begging means to the trans?
Following the recommendation, in December 2018 the Lok Sabha passed the bill with a total of 27 amendments. This attracted severe criticism and protests across the country. It was done as the recommendations of the standing committee regarding the passing of the bill was overlooked entirely. The primary objection which surfaced was that it criminalized begging, which is the last resort for many in the community when their families and the community deject them.
Right to Self Identification v. District Screening Committee
It further called for a district screening committee, which would comprise of a chief medical officer and other members. The task of the committee will be to issue identification certificates to the transgender. This went entirely against the said right of self-identification.
The bill was criticized as ‘unscientific’ and to do not align with the ‘global best practices’. It has been said not to prevent but rather encode discrimination in the letters of the law. The protests against the bill was so widespread that the Rajya Sabha could not pass it and thus lapsed in 2019. It was re-introduced in the Lok Sabha this year and passed in the last few days of the Parliament’s budget session. Social Justice & Empowerment, Minister Thawarchand Gehlot has defended the provisions of the draft legislation, by saying that the ministry has come up with the draft in consultation with many associations and individuals from the trans community. He said,
“The two (controversial) provisions of the earlier bill, which criminalized beggary and (about the screening committee) have been removed as per the requests,” the minister had said.