Is this the Transgender Persons “Prohibition of Rights” Bill 2016?

The Transgender Persons [Protection of Rights] Bill 2016 was subsequently (read background box above) drafted and presented in the Lok Sabha yesterday. It is a shockingly distorted and reductionist version of their own previous Bill! I can find no other explanation for this other than that, the officials at the Ministry of Social Justice and Empowerment are on some serious psychedelic substances.

A critical look at The Transgender Persons [Protection of Rights] Bill 2016 —

Definitions

The latest bill completely does away with the important definitions of abuse, discrimination, stigma, exploitation and violence apart from many other definitions that were drafted in the previous MSJE bill.

Apart from this, let us look at the definition of transgender given –

The Transgender Persons [Protection of Rights] Bill 2016 says:

“transgender person” means a person who is—

(A) neither wholly female nor wholly male; or

(B) a combination of female or male; or

(C) 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 MSJE has clearly bought into the popular culture narrative of trans people as phantasmagoric beings who are half man- half woman, or neither male/female. The latest definition given by them is biologically determinist and would apply more, to people with intersex variations who identify as gender queer or a section of trans people who identify as third gender but not the whole spectrum. So, what happens to the trans and intersex people who identify as male or female? The use of “and” instead of “or” effectively means A,B,C are the only options.

In comparison to this, the earlier MSJE bill of 2015 says

‘Transgender Person’ means a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as — kinnars, hijras, aravanis, jogtas etc. A transgender person should have the option to choose either ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/ hormones.

It is plain for anyone to see that from a Bill that recognizes the right to bodily integrity of any person to self identify their gender, irrespective of medical interventions, it has regressed to a Bill that relies heavily on biological determinism. It is tragic that the MSJE is trapped in their understanding of what our bodies look like.

If trans people are to be treated equally and without discrimination, we should be allowed the same legal process that is allowed to non trans people to change their identity. And if non trans people do not go to the District Magistrate and a Screening Committee which certifies their change in name, we should not be asked to do so either.

RECOGNITION OF IDENTITY OF TRANS-PERSONS

After stating that a person recognised as transgender shall have a right to self-perceived gender identity, in direct contradiction to this statement and the Supreme Court NALSA judgement, the Bill 2016 says —

5. A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed:

Provided that in the case of a minor child, such application shall be made by a parent or guardian of such child.

6. (1) On the receipt of an application under section 5, the District Magistrate shall refer such application to the District Screening Committee to be constituted by the appropriate mGovernment for the purpose of recognition of transgender persons.

6. (2) The District Screening Committee referred to in sub-section (1) shall comprise—

(a) the Chief Medical Officer;

(b) District Social Welfare Officer;

(c) a Psychologist or Psychiatrist;

(d) a representative of transgender community; and

(e) an officer of the appropriate Government to be nominated by that Government.

7. (1) The District Magistrate shall issue to the applicant under section 5 a certificate of identity as transgender person on the basis of the recommendations made by the District Screening Committee in such form and manner, within such indicating the gender of such person as transgender.

When I changed my legal gender markers, I had to get a psychiatric certificate, surgery certificate, publish in two newspapers with a legal affidavit stating my intention of changing my name and gender. All documents including passport could be changed with these documents.

When a non trans person changes his/her name, you have to advertise in two newspapers with a legal affidavit.

So now, with this Bill, the MSJE recommends that trans people go to the district magistrate with ‘prescribed documents” [they haven’t disclosed what the prescribed documents are], who will then refer us to a district screening committee to certify that we are who we say we are.

See what they did here? Welcome to a bureaucratic process that is in direct violation of article 14 and 15 of the Constitution and the Supreme Court judgment. Article 14 says “Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India “

Article 15 says that “the state shall not discriminate against only of religion, race, caste, sex, place of birth or any of them”.

So, if trans people are to be treated equally and without discrimination, we should be allowed the same legal process that is allowed to non trans people to change their identity. And if non trans people do not go to the District Magistrate and a Screening Committee which certifies their change in name, we should not be asked to do so either.

 

WELFARE SCHEMES

The Bill fails to name any welfare schemes for trans people and in very vague terms says , “The appropriate Government shall take such measures as may be necessary to protect the rights and interests of the transgender person, and facilitate their access to welfare schemes framed by that Government.”

The charitable Ministry however, does want to “ take steps for the rescue, protection and rehabilitation of transgender persons to address the needs of such person.”

Many recommendations sent to the earlier Bill by trans groups demanded for a change from the language of rehabilitation to a language of rights. Clearly, the Ministry was snoozing through it all.

At this point, I would say, the only “rescue, protection and rehabilitation” we need, is from this Bill.

CHAPTER V

OBLIGATION OF ESTABLISHMENTS AND OTHER PERSON

It says that no establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues. They have also set up a redressal system —

Every establishment consisting of one hundred or more persons shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.

Establishment is defined as – “establishment” means—

(i) any body or authority established by or under a Central Act or a State Act or an authority or a body owned or controlled or aided by the Government or a local authority, or a Government company as defined in section 2 of the Companies Act, 2013, and includes a Department of the Government; or

(ii) any company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency, institution;

In comparison to this, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has broad definitions of employee, workplace and specifies that women should compulsorily head workplace harassment committees. Local complaints committee can be approached by women working in organisations under 10 people, unorganised sector workers including domestic workers.

Clearly, the MSJE has not visited the garment factories of Tiruppur, or urban settlements where trans people do unorganised sector labour and are ignorant about the number of trans men who work as cab drivers, unorganised sector labour , or even NGOs with staff of less than 100 people!

We know that most young trans people leave their given families due to the violence we face and form alternate families of our choice. The matrilineal hijra family is one such support system. Imagine if every trans mother, who has no recourse/access to the legal system has to fight for custody battles for her daughter/s?

Again there is discrimination in the process of addressing discrimination between women and trans persons. Why couldn’t the definition of workspace for an anti-discrimination clause not be adopted from Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which has put in place a very comprehensive definition of workspace and a process for those who are organized and unorganised workers as mentioned above?

13 (1) No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person.

The Transgender Persons [Protection of Rights] Bill 2016 also says that “ Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in a rehabilitation centre”.

The earlier MSJE draft bill of 2015 which was much more progressive in comparison reads-

13 (1) No child who is a transgender shall be separated from his or her parents on grounds of being a transgender except on an order of competent Court, if required in the best interest of the child.

Right to Home and Family

9 (2) Where the immediate family is unable to care for a transgender child, the competent Court shall make every effort to place such child within his or her extended family, or within the community in a family setting.

Explanation—‘Family’ means a group of people related by blood, marriage or adoption to the Transgender Person

So “child” becomes “person” in the latest bill and a broad definition of family which recognized adoptive families is done away with.

This is a direct attack on the hijra family system and the right of trans people to live with family/lovers of their choice. We know that most young trans people leave their given families due to the violence we face and form alternate families of our choice. The matrilineal hijra family is one such support system. Imagine if every trans mother, who has no recourse/access to the legal system has to fight for custody battles for her daughter/s? This will also be used against trans men and their lovers who leave their homes. This is in direct violation of the constitutional principles of right to equality, liberty and fraternity.

CHAPTER VI

EDUCATION, SOCIAL SECURITY AND HEALTH OF TRANSGENDER PERSON

The earlier Bill , 2015 mentioned “sex reassignment surgery, free of cost” became “(b) to provide for medical care facility including sex reassignment surgery” in the Bill of 2016. Nothing for free, then? Or even subsidized?

Dear MSJE, nobody “entices” anyone to beg. It is out of lack of employment opportunities due to social/ physical disabilities, poverty, structural exclusions that people beg. This will be an additional section that will be potentially used to criminalise trans women who beg on the streets and their trans gurus/mothers.

CHAPTER VIII

OFFENCES AND PENALTIES

a. compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour public purposes imposed by Government;

In November 2014, many trans women in Bangalore were randomly picked up from public places and illegally detained in the infamous “Beggar’s Colony”, a “rehabilitation” centre for beggars where unnatural deaths and deplorable living conditions have been reported. They were taken under the Karnataka Prohibition of Beggary Act, 1975 [which interestingly, exempts “religious mendicants” who beg from criminalization].

Dear MSJE, nobody “entices” anyone to beg. It is out of lack of employment opportunities due to social/ physical disabilities, poverty, structural exclusions that people beg. This will be an additional section that will be potentially used to criminalise trans women who beg on the streets and their trans gurus/mothers.

A new section on offenses has thus been added, but only to potentially criminalise already vulnerable trans families. News reports which said that there would be protection in the re-drafted Bill against atrocities committed against trans people such as fording trans people to leave a village/residence or forcibly removing clothes and parading naked have been completely done away with. The Bill in effect provides negligible protection for trans people against various hate crimes, atrocities and offenses.

Important provisions from earlier version of Bill that are missing now

1. Necessary amendments in IPC to cover the cases of sexual assault on Transgender Persons
2. Those Transgender Persons who by birth do not belong to Scheduled Caste or Scheduled Tribe may be declared as Backward Class and be entitled for reservation under the existing ceiling of OBC category. Provided that those Transgender Persons who by birth belong to Scheduled Caste or Scheduled Tribe would be entitled for reservation under their respective categories as per the existing Rules. Provided that Transgender Persons are not to be prevented from competing for seats which are not reserved for them.
3. Criminal and disciplinary action against delinquent police official in cases of violation of human rights of Transgender Persons
4. Government should provide scholarship/entitlements, fee-waiver, free textbooks, free hostel accommodation and other facilities at subsidized rates for students belonging to this group.
5. All the educational institutions/universities should establish an anti-discrimination cell to monitor any form of discrimination against the transgender community.
6. The Appropriate Government and local authorities shall ensure participation of Transgender Persons in adult education and continuing education programmes on an equal basis with others.

An amount of 15 crore rupees has been allocated as budgetary expenditure for the transgender scheme. I request the Indian government to get all trans people the psychotropic substance that the people who drafted this Bill were on, so that we can also be deluded to think that this Bill is for our protection and not our prosecution.