The following statement was released at the Press Meet held on Dec 3, 2019, at the Press Club, Chepauk, Chennai. The press meet was held concurrently with a postcard writing campaign addressed to the President of India, asking him not to give his assent to the Bill in its current form.

Click here for Tamil version of the Press Release.

Dec 3, 2019, Chennai:

We transgender community members, allies, and members of the Tamil Nadu Rainbow Coalition, a network of LGBTIQA+ groups, collectives and individuals in the state, express our profound dismay at the passing of the Transgender Rights Bill in the Rajya Sabha. The Bill, that was passed by the Rajya Sabha on Nov 26, 2019, is in gross violation of the Supreme Court of India’s NALSA verdict of 2014, and Articles of the constitution such as Article 21 (Right to Life and Liberty), Article 19(1a) (Right to freedom of speech and expression)

1. The primary violation of NALSA seen in the Transgender Bill 2019 is the principle of self-determination. Although the Transgender Bill 2019 does away with the Screening Committee, granting of transgender identity is based on approval of the District Magistrate who has discretionary powers to deny the application. Additionally, for a transgender person to identify as male or female, proof of surgery is required, which contradicts NALSA.

2. We take strong exception to the provision that the primary caregiver for transgender persons – even adults – should be the biological family, and the only alternative is government-provided rehabilitation facilities. There are two issues with this. One, the biological family is often the primary site of violence against transgender children, and trust in the biological family as primary caregiver is misplaced. Second, the Bill completely ignores alternative family structures within which transgender persons have the constitutional right to stay. An example is the traditional jamaat system that has provided shelter and support to transgender women for centuries. Other examples could be intimate partners, friends, etc.

3. The Bill does not contain any mention of reservations in education and employment for transgender persons. This is also in gross violation of the NALSA verdict.

4. Punishment for assault and other egregious offences against transgender persons is limited to a maximum of two years. This treats transgender persons as inferior citizens in comparison to cis women and children, crimes against whom merit more severe punishement. Additionally, clear operational definitions of stigma and discrimination are needed, to ensure that transgender persons are protected against these, and action is taken against offenders. We, additionally, needed an Act for Prevention of Atrocities against Transgender and Intersex Persons, on the lines of the SC/ST Atrocities Act.

5. The Bill confuses transgender and intersex. The Hindi translation of the Bill uses the term “Ubhayalingi” which means Intersex. While we ask that provisions for intersex persons be included in the Bill, we ask that transgender not be used interchangably with intersex. Most transgender persons do not have differences in sexual development (DSD).

6. Transgender identity cards that recognize the rights of individuals to identify within or outside the binary should be issued in all states, as is the practice in Kerala. These identity cards to encompass transmen, transwomen and third-gender individuals.

7. Transgender women should be brought within the ambit of ‘women’ in the Protection of Women from Domestic VIolence Act (2005), as has been recorgnised by the Oct 2019 ruling of a Delhi magisterial court.

8. Free gender-affirmation surgeries and hormone therapies should be made available across the country for trans men and trans women who need them.

Unless these changes are incorporated, we ask that the Transgender Rights Bill (2019) not be given Presidential assent.

We oppose “The Trafficking of Persons Bill 2018” because it replicates the existing discriminatory laws, brings into the ambit populations/sections that have different problems, gives immense powers to the police, creates additional unaccountable bureaucracy, criminalizes whole swathes of population, and lacks any credible model of rehabilitation as it does not allocate any resources. The Bill lacks key definitions (e.g. forced labour, exploitation). The Bill reflects illogical gradation of offences, New offences unrelated to trafficking (Section 41(2)); Vaguely worded offences with disproportionate sentencing; Anti-slavery provision re-incorporated though irrelevant; reversal of burden of proof and introduction of absolute liability offences; Introduction of strict liability offences; high levels of punishment and lack of clear sentencing policy; weak punishment for employers; violation of right to property; provisions relating to bail presume guilt rather than innocence). The Bill uses failed approach of institutionalized rehabilitation with inadequate commitment of resources rather than community-based rehabilitation. The United Nations Special Rapporteurs on Contemporary Forms of Slavery and on Trafficking have also expressed their displeasure with the bill.

We condemn “The Transgender Persons (Protection of Rights) Bill, 2018” as it violates more rights than it claims to protect. It is contrary to the Supreme Court NALSA verdict and violates the right to self-identity and constitutional rights, encodes discrimination, offers no reservations while criminalizing transgender community traditional livelihood of begging. It stands in stark violation of the fundamental rights of transgender persons enshrined in the Constitution as equal citizens, judgement of the Apex Court in NALSA vs. Union of India in 2014. For example, the Bill has created a two-tier system within the transgender community, wherein persons who have not had sex reassignment surgery (SRS) can only identify as transgender and not as male or female, and the identification as transgender depends on scrutiny and certification by a District Screening Committee; those seeking to identify as male or female need to have had SRS. This is completely contrary to the NALSA verdict. We note here that the concept of a District Screening Committee that seeks to validate the ‘authenticity’ of a transgender person’s identity is not only completely against the letter and spirit of NALSA, but also provides immense scope for abuse. The Bill is a retrograde step from previous iterations of transgender persons’ rights such as reservation, employment and education opportunities as iterated in the NALSA judgment, MSJE report, the Tiruchi Siva Bill, and the Parliamentary Standing Committee recommendations. The GOI Transgender Persons (Protection of Rights) 2018 Bill also seeks to destroy non-normative family structures and support systems that transgender persons in India have been seeking support from all these years. It also encodes discrimination with lower penalties for sexual and physical violence against transgender people.    

Furthermore, we call out the enormously bigoted, homophobic & trans-phobic The Surrogacy (Regulation) Bill 2018, as passed by the Lok Sabha is another institutional mechanism to control our bodies. It makes surrogacy available to exclusively heteronormative couples, impairing non-heteronormative couples from availing these methods to have babies.

We urge the Members of Parliament (Rajya Sabha) to conscientiously consider our appeal and send these Bills for a review by a Select Committee of the Indian Parliament. We extend our solidarity to the Jantar Mantar Protest, happening on 28th December, 2018 at New Delhi and to all the protest demonstrations that are happening across the country in opposition to these Bills.  We urge every citizen to join the protest at Jantar Mantar, New Delhi in our struggle for equal fundamental rights for all.

We plan to hold public discussions, rallies and talks simultaneously across campuses and cities on the day of the protest.  We call Individuals, student groups, queer collectives to join in demonstrations across campuses/cities against the Bills and other legislations against the marginalised groups such as transgender and queer persons, sex workers, migrant workers, domestic workers, etc,by creating literature regarding the political and legal issues faced by the queer community in India.

*Statement open for endorsement till the 27th December, 2359 hours*

Endorsements can be sent to

• Vaivab Das – dasvaivab1@gmail.com
• Ankush Gupta – ankush.gupta6414@gmail.com
• Aroh Akunth – akunth.15@aud.ac.in

List of Signatories:

1.TISS Queer Collective, Mumbai
2.Spectra, Pondicherry University
3.Jamia Queer Collective
4 Ambedkar University Delhi Queer Collective
5.Women and Gender Development Cell, TISS Guwahati
6. Uttarang, TISS Guwahati
7. The Gender Studies Cell, St. Stephen’s College, Delhi
8. Miranda House Queer Collective, Miranda House, Delhi
9. Queer Collective, Dehradun
10.Resistive Alliance for Queer Solidarity, Allahabad
11.Gender Issues Cell, K.C. College, Mumbai University
12.Abhimaan, Kolhapur
13.Hasratein, JNU
14. Orenda, IIT-Gandhinagar
15.TISS Queer Collective, Hyderabad
16.NLSQA : National Law School Queer Alliance, Bangalore
17. SavitriBai Intersectional Study Circle, NALSAR
18. Xomonnoy (Intersectional Queer Feminist Group, Guwahati, Assam
19.Lambda, IIT Guwahati
20.The Queer and Ally Network, Manipal
21. Queerythm, Kerala
22. Jadavpur University Queer Collective
23. NLU Delhi Queer Collective
24. NLU Delhi Gender Circle
25. Students coordinating from St. Edmunds, Shillong
26. Students coordinating from NIFT, Shillong
27. Students coordinating from IHM, Pusa
28. Students coordinating from Pune University
29. Students coordinating from NLUJAA, Assam
30. Students coordinating from Guwahati University
31. Students coordinating from University of Science and Technology, Meghalaya
32. Queer and Straight allies at IISC (QUASI)
33. Queerabad, Ahmedabad
34. LGBTQIA+ Students, Jindal Global University
35. Dr. Kimberly Walters, California State University, Long Beach
37. Awadh Queer Committee
38. LGBTQ Resource group at IIM Ahmedabad
39. Umeed – an LGBTQIA+ Collective, IIM Kozhikode
40. Ya_All: Queer and Allies Youth Network, Manipur
41. Pinjra Tod, New Delhi
42. Akshaya, the Queer Collective of Netaji Subhas University of Technology (NSUT)
43. Orinam Collective, Chennai
44. Feminist Collective, Ashoka University
45. Women’s Development  Cell, LSR

The Anti-Discrimination and Equality Bill, 2016 (“ADE”) was introduced in the Lok Sabha on the 10^th of March, 2017, by Dr. Shashi Tharoor as a private member Bill. Dr. Tarunabh Khaitan, Associate Professor of Law at the University of Oxford has advised with respect to the contents of the Bill. According to an interview by Dr. Tharoor, 4% of private member Bills move on to the discussion stage. As of now, we do not know whether the ADE will move to the discussion stage. The protections provided under this Bill will apply to many different kinds of social markers. However, in this short article, I will try to lay out broadly how the ADE would affect the LGBT (lesbian, gay, bisexual and transgender) community and those perceived to belong to this community. For the remainder of the article, any mention of the LGBT community should be read as including both these categories, as is also the intention of the Bill.

1. Protection from Sexual Orientation and Gender Identity Discrimination

The ADE is a comprehensive anti-discrimination Bill that seeks to provide all citizens of India protection from various forms of social discrimination (Preamble) from both the government and a set of private bodies (employers, landlords, shopkeepers, public contractors etc.). Therefore, several social markers such as caste, race, ethnicity, descent, pregnancy status, skin tone, food preference, HIV status, disability, marital status etc. which also form the bases of different kinds of discrimination in society are categorized as protected characteristics under this Bill. A protected characteristic is a characteristic on the basis of which one cannot be discriminated against. Sexual orientation and gender identity are also categorized as protected characteristics. Therefore, the most important feature of this Bill in the context of this article is that it provides protection from sexual orientation and gender identity related discrimination to citizens of India (S. 3(i) read with S. 14). Doubtless, it would include not only L, G, B and T persons but also persons who are gender fluid or gender queer, or do not identify with any particular identity category. However, by abundant caution, this Bill has stated that features which are, “either outside a person’s effective control, or constitute[s] a fundamental choice” are protected characteristics which cannot form the basis of discrimination.

2. Direct, Indirect and Aggravated Discrimination

A. Direct Discrimination

The Bill provides protection from direct, indirect and aggravated discrimination. Direct discrimination would arise when there is a rule or practice which is motivated by prejudice/stereotype or intends to harm people on the basis of their membership to a particular group (S. 6). For example, if a blood donation centre forbids gay men from donating blood because they assume that every gay man has AIDS, it would amount to direct discrimination on the basis of sexual orientation. This would be a case of direct discrimination even if the blood donation centre can produce statistical evidence to show that a large percentage of persons with HIV/AIDS are gay men, or that a large percentage of gay men have HIV/AIDS.

B. Indirect Discrimination

Indirect discrimination would arise when sexual orientation or gender identity do not form the direct basis of discrimination on the face of it (S.7). However, if one digs deeper, one will find that the LGBT community suffers a disproportionate disadvantage under the rule. S. 377 of the Indian Penal Code, 1860 (“IPC”) is the classic example. On the face of the law, it does not discriminate on the basis of sexual orientation or gender identity. As per S. 377, “carnal intercourse against the order of nature” is criminalized. However, S. 377 is seldom used against the sexual acts of a man and a woman. It is used primarily to harass members of the LGBT community (Naz petition, paragraph 5). Therefore, such a law although equal in words, treats people unequally based on their real or perceived sexual orientation or gender identity and disproportionately affect members of the LGBT community (Naz Decision, Delhi High Court, paragraph 113). Therefore, such a law would qualify as indirectly discriminatory under the Bill.

Another example may be surrogacy laws which restrict surrogacy to married couples. Apart from being directly discriminatory on marital status, such a law could also be indirectly discriminatory against the LGBT community if it is shown that surrogacy is one of the chief ways by which members of the LGBT community (esp. gay men) become parents.

C. Harassment, Boycott and Segregation

This Bill also protects the LGBT community against harassment, boycott and segregation. Therefore, any communication which has the purpose of creating a bullying atmosphere for actual or perceived membership of the LGBT community would be unlawful under this section (S. 8). The example present in the Bill itself is that if a boy is called a “sissy” for refusing to play sports, such name calling would amount to harassment.

Any call to boycott or ostracize someone on the basis of their actual or perceived sexual orientation or gender identity would be forbidden under the boycott provision of the Bill. For example, if the school principal in the example above-mentioned directs all students to stop interacting with the boy, the principal would have committed the act of boycott under this provision (S. 9).

Segregation is said to occur under the Bill when, by use or threat of force or manipulation, a person is prevented from interacting, marrying, eating, living, socializing, visiting, being friends with, etc. with a LGBT person (S.10). For example, if a landlord informs a tenant that their gay friends cannot visit them and if they do, the tenant would be kicked out of the rented property, such threat would amount to segregation under the Bill.

Further false complaints of kidnapping under S. 366 of the IPC also amount to segregation under the Bill (S. 10(2)). Therefore, if the parents of one of the partners of a lesbian couple file a false case of kidnapping against the partner of their daughter, it would amount to segregation under the Bill (in addition to the offence of false information under section 182 of the IPC). Furthermore, this Bill provides that in such situations, if the partner, whose parents have filed the case, makes a reliable statement stating that the complaint is false, such statement would be sufficient to prove that the complaint is false even if she later retracts from that (S.10 (3)).

Whether such a reliable statement should be sufficient to prove a false complaint case, or whether it should just establish a prima facie false complaint case and shift the burden on the other party (the complaining parents in this case), is something that the Parliamentarians may take time to consider in the discussion phase, in keeping with the realities of how these complaints are made in the police station and principles related to the apportionment of burden of proof in similar cases.

Finally, any encouragement or facilitation of violence against members of the LGBT community would constitute discriminatory violence under the Bill and any public servant whose duty it was to protect from such violence and fails to do so would also be said to have committed discriminatory violence (S.11).

3. Diversification Allowed

This Bill allows the adoption of any rule or policy that will encourage the participation of the LGBT community in government, local authorities or activities of private persons performing public functions (for example, public contractors). Such diversification measures can include scholarships, special training programmes etc. Such diversification techniques would not be to the detriment of affirmative action measures that may already exist (S. 13 read with S. 14 (6)). Additionally, public authorities while making a rule will be required to give due regard to ending discrimination and the promotion of quality and diversity (S. 16).

4. On Whom Does the Duty of Non- Discrimination Lie?

The duty of non- discrimination flows from persons belonging, or representing persons in, category A to, persons in category B. Persons in category A are 1. Employers, 2. Landlords, 3. Traders, 4. Service providers, 5. Public authorities; 6. Private persons performing public functions. Persons in B are 1. Employees; 2. Purchasers or tenants, 3. Consumers; 4. Consumers; 5. Any affected persons; 6. Any affected person, respectively (S.14). A, or representatives of A cannot discriminate, directly or indirectly, or use discriminatory violence or boycott, harass or segregate, B.

Therefore, a landlord cannot refuse to rent property to transgender persons on grounds that they are transgender. Similarly, for other categories of A and B. Additionally, the landlord must also ensure that their employees like the house help etc. do not discriminate against the transgender tenant (S. 14(3)).

Inversely, the duty to not discriminate, harass, boycott etc. does not flow from B to A. Therefore, for example, an LGBT support group can put out a call on their Facebook page to boycott a particular food joint that has homophobic graffiti inscribed on its walls.

The duty of non- discrimination does not lie in personal relationships. For example, LGBT persons are not protected from discriminatory attitudes from their family members at home or discriminatory remarks from their friends or other personal relationships.

5. How Can these Protections Be Enforced?

A. Remedies Available

The protections provided under this Bill can be enforced by approaching the State Equality commission, a body proposed to be set up under this Bill (S. 31). The range of remedies available under the Bill are, apology, abandonment of discriminatory practice, diversity training, damages, normal and exemplary (this can go up to Rs. fifteen lakh), protection orders (which are like restraining orders) etc. (S. 33 and 34). Breach of a protection order can invite an imprisonment term of up to one year (S. 35(1)).

B. Who Can Bring the Claim?

As per S. 37, the claim can be brought by 1. the aggrieved person; 2. relative; 3. sexual or romantic partner; 4. organizations that represent the aggrieved person; or 5. with the permission of the central equality commission, any one aggrieved person acting on behalf of other aggrieved persons who have the same interest (for example, an LGBT activist challenging a particular law on behalf of all members of the LGBT community).

C. What Does the Aggrieved Person Have to Prove?

The aggrieved person (plaintiff) has to make out a prima facie case of discrimination. This means that the plaintiff will have to show that a particular rule or practice does in fact, mete out different treatment on the basis of sexual orientation or gender identity. Once the plaintiff shows this, the burden shifts to the respondent (employer, trader, government etc.) to show that such a discriminatory measure was instituted in good faith and as a proportionate means to achieve a legitimate end (S. 6(2) and 7(2)). However, there is no defence provided for segregation or boycott in the Bill.

D. Will S. 377 Pose some Practical Problems to this Bill?

The presence of S. 377 may pose some practical problems to the enforcement of the guarantees under the Bill. For example, a landlord may refuse to rent out property to a gay couple not because they are gay, but because their sexual act means that they would be engaging in criminal activity under the IPC. A landlord may refuse to rent out property to persons engaging in criminal activities. However, S. 36 of this Bill allows the High Court to strike down other laws incompatible with the provisions of the Bill. This could provide an opportunity for High Courts to consider whether S. 377 should remain on the books and provide another avenue for challenging this section.

6. Concerns

While there are several protections provided to the members of the LGBT community, there are some concerns that the Bill poses to the LGBT community. I will try to lay them out here.

A. Segregation, Boycott, Harassment Flows Both Ways

Recall that the duty to not discriminate, boycott, harass etc. flows from A to B (see part 4). As the Bill is written, A comprises people who provide services and B comprises people who receive services. Imagine a situation of a shop which is owned by a lesbian couple. While this couple may not discriminate against potential customers, customers may discriminate against this shop. They may not like to purchase goods from this shop. No one may enter this shop. The Bill does not provide a remedy in this situation.

A previous version of this Bill, The Equality Bill, 2016 accounted for such a situation. S. 14(2) of this version forbade segregation by anyone. The proposed Bill could be amended to this effect. However, the following question may still require discussion: how would such a provision be enforced? How could an order of a court get people to start going to this lesbian couples’ shop and who would be responsible for non- compliance with this order? Perhaps, such a situation cannot be remedied by a law. Equality and diversity education might be a more effective tool in such situation.

Imagine, inversely, that the shop of this lesbian couple is flooded by customers all of whom make extremely derogatory and discriminatory remarks about the sexuality of the women. The Bill does not make a provision for these shop owners to segregate these customers on the basis of this homophobic verbal harassment. In other words, the shopkeepers cannot prevent these homophobic customers from coming in especially because both, they bear the duty of non- segregation and non- harassment (and not the customers) and also because there is no valid justification provided in the Bill for segregation.

A previous version of this Bill, S. 14 of the The Equality Bill, 2016 perhaps accounted for such a situation when it forbade discriminatory violence by all people against members of a protected group (the lesbian couple, in this case). Perhaps this latest version could be amended accordingly.

B. Freedom of Speech and Expression May Come in Conflict with the Provisions of this Bill

Our constitution allows a vast and expansive freedom of speech and expression fundamental right. Accordingly, as per S. 14(5)(iv) of this Bill, any form of speech and expression (among other things) which is allowed under the constitution does not amount to discrimination. In our constitution, hate speech, with the exception of the SC and ST (Prevention of Atrocities) Act, 1989, is not forbidden. This means that one can say hurtful and hateful things about members of the LGBT community and this is not forbidden under the constitution unless some other conditions are met. These conditions can be, for example, that the public order is threatened (Art. 19(2) of the Constitution of India). In such a situation where the freedom of speech and expression allows a wide freedom on the one hand, and this Bill forbids the bullying, harassment and segregation of LGBT persons on the other hand, a conflict may arise over the constitutionality of the bullying, harassment and segregation provisions. If such a question comes before the courts, they may have to find a way to reconcile these provisions with the constitutional freedom.

C. Discrimination in Regard to Religion Allowed

Inversely, freedom of religion under the constitution is subject to the provisions of equality (and other fundamental rights: Article 25). In this regard by allowing discrimination when it comes to religion or religious places of worship (Schedule), this Bill may have provided a constitutional concession where one may not be required. Perhaps, this provision could be looked at once again in the discussion stage to determine its suitability in the Bill.

D. Doubtful Whether Protection Extends to Foreigners

The preamble of the Bill states that the Bill is designed to, “ensure equality to all citizens” whereas “nationality” is also a protected characteristic under S. 3 of the Bill. Therefore, one cannot be discriminated against on the basis of nationality under the Bill. However, S. 3 also mentions that protected characteristics apply only to “citizens.” This gives rise to an apparent contradiction and leaves doubtful whether LGBT foreigners in India will receive protections of the Bill. However, this is a minor ambiguity in the Bill and can be rectified by an appropriate amendment.

“Words are magic things,” proclaimed pandit Nehru as the Constituent Assembly resolved, on the 13^th of December, 1946, to constitute itself into an independent sovereign republic and to give to itself, a constitution. In an unconnected context, but I daresay, in a similar allegiance to freedom, the Delhi High Court co-opted these words when it voiced the aspirations of many in its landmark judgment of Naz Foundation v. NCT of Delhi and Ors..[2] This judgment, albeit a High Court decision, stated that S. 377 of the Indian Penal Code which criminalizes “sex against the order of nature” was unconstitutional to the extent that it criminalized adult consensual “homosexual sex”[3] in private.

If it is magic that we are talking about, the proposed Transgender Persons (Protection of Rights Bill, 2016) hereinafter, the Trans Bill, 2016 has lost much of the magic of the Transgender Persons Bill, 2014 (hereinafter, the Trans Bill, 2014).[4] Gone from the 2016 Bill is the government’s commitment to reasonable accommodation for transgender persons[5], the right of transgender persons to live in community[6], their right to free legal aid, the commitment of the government to take proactive steps to protect transgender persons from violence and exploitation[7], concessional loan rates available to transgender persons, transgender persons’ entitlement to social security measures from the government in the form of community centres, shelter, water, pensions and unemployment allowance.[8] Gone are measures, perhaps carelessly called rehabilitation measures in the areas of health, employment and education.[9] Gone are affirmative action measures in the form of reservation of seats and posts in education and employment.[10] There are several other modifications of language in different sections that could limit government obligations– I have not mentioned them here.

This short article is not about that. After all, previous versions of Bills are not binding; they cannot be produced in court as obligations a judiciary must enforce. Yes, they can be produced in court as evidence of what the legislator once intended to say. By contrasting them with the passed version of the Bill (the “Act”), one may establish, what the legislator actually intended. After all, exclusion unius est exclusio alterius is a serious rule of statutory interpretation, taken seriously by the Indian courts. The rule means that if the legislator omitted to write some something, or if the legislator excluded something, they intended to do so. Therefore, if the legislator committed to reservation in one version of the Bill but omitted it in a later version, they intended to do so. So on and so forth. The courts cannot ignore this rule. Sure, they can find good reasons to not adhere to it but they would have to be overpowering reasons; reasons more urgent than the call of this rule. Judgments cannot, unless they open themselves up for criticism on this ground, proceed in disregard of this rule. However, this article is not about that.

This article is about a rule that can be argued in court. Article 141 of the Indian constitution states that the judgment of the Supreme Court is binding on all lower courts. Therefore, all lower courts must enforce Supreme Court judgments. Article 142 of the Indian constitution empowers the Supreme Court, to pass any order or direction which is enforceable as law, in the presence of a legislative vacuum on a topic.[11] As there is no legislation on the rights of transgender persons in India, the Supreme Court directions and rulings on the matter, are by force of Article 142, law. They are the law of the land currently. This of course, does not place any obligation on the legislative wing to translate these very findings into law, but in fact, it has been the practice in such matters, as Justice of the Supreme Court (Retd.) Ruma Pal[12] has noted, to incorporate the Supreme Court judgment into statues.[13]

Therefore, until the legislative wing actually formalizes the Bill into an Act, the Supreme Court judgement rules the field and must be enforced by lower courts (Article 141) and, by the authorities contemplated in the ruling, as per Article 142. Once an Act comes into being, the Supreme Court again has two choices. First, it can test the Act against constitutional guarantees.[14] It may find that some of the provisions of the Act deny fundamental rights to transgender persons and hold those provisions invalid. Second, in its exercise of the ‘complete justice’ provision, the court may by- pass the provisions of the Act and restore its prior directions/pass new orders.[15] Both these choices can be exercised together or independently.

This article contrasts the judgment of the Supreme Court of India in the National Legal Services Authority v. Union of India and Ors. [NALSA] case, which found that all fundamental rights extend to transgender persons, with the latest version of the Trans Bill; Trans Bill 2016.

1. Definition of Transgender

Trans Bill, 2016 defines a transgender person as “neither wholly female nor wholly male”; or “a combination of male and female”; or “neither female nor male”; and “whose sense of gender does not match with the gender assigned to that person at the time of birth…”[16] The positioning of the and seems to suggest that the Bill understands transgender as being a mix of biological and internal identity-based conditions. There is no necessary connection between biology and a deeply felt gender identity i.e. it is not necessary that one have intersex conditions such as be a “combination of male and female” or have ambiguous genitalia for them to feel that they truly belong to another gender. This is a myth. In fact, scholars such as Serena Nanda have found that most Hijra persons are born with genitalia such that by medical standards of sex-assignation they are assigned male at birth by doctors.[17] The Supreme Court understood this when it defined transgender purely in terms of a deeply felt gender identity.[18] The proposed definition of the Bill has the potential to exclude from protection of the law, several transgender persons who do not meet the biological conditions highlighted here.

Moreover, the Bill removes from the definition of transgender, references to several regional identities such as Hijra, Kothi, Aravani etc. all of which were included within the Supreme Court’s umbrella definition of transgender[19], and were included in the definition of transgender in the Trans Bill 2014.

2. Right to a Self-Identified Gender

The Supreme Court decision affirmed the right of a transgender person to their self-identified gender.[20] However, as per S. 4(1), Trans Bill, 2016, “a transgender person has a right to be recognized as such, in accordance with the provisions of this Act.” Once this has happened, “a person recognized as transgender under sub-section (1) shall have a right to self-identified gender.”[21] It is important to note the potential of this wording. The right to self identify which stood independently as per the court decision seems to have been subsumed under the “provisions of this Act” as per the Bill. Reading further[22], one finds that a transgender person must submit an application to the District Magistrate (D.M.) to obtain a transgender certificate. The D.M. passes this application on to a screening committee which comprises a doctor, a social worker, a psychiatrist or psychologist, a government officer and a member of the transgender community. This committee peruses the application and based on its recommendations, a certificate of identity is issued to a transgender person.

This screening process has perhaps been set up to counter apprehensions that people would abuse the final Act by falsely claiming that they are transgender when they are not. Even if people were to take on a false identity mired in stigma and discrimination to make themselves eligible for the same scheme of constitutional protections they received as non- transgender persons (reservation etc. is removed from the Trans Bill, 2016), this kind of legal rewiring of the self-identity guarantee has the potential to subject transgender lives to increased legal and medical regulation that they may find repugnant to the notion of “self-identity.”

The Trans Bill, 2016 does not lay down what criteria this screening committee will look at to make a determination. It is unclear whether these criteria will be developed in consultation with transgender persons. Doctors, psychiatrists and psychologists preside over this committee. There is only one transgender person on this committee. Trans Bill, 2014 recognized a person to be transgender in the sense of identity alone “irrespective of surgery.” This phrase is now removed from the definition of transgender from the Trans Bill, 2016. Could this mean that the government could lay down a requirement for surgery as a condition for the transgender certificate? True, the Supreme Court has stated expressly that, “any insistence on SRS for declaring one’s gender is illegal and immoral”[23] but this will come up for decision only when such a rule will be challenged in court. What would happen in the interim?

The definition of transgender as per the Trans Bill, 2016 envisages a mix of biological and gender identity conditions to co-exist for a person to be transgender. Will the screening committee then require evidence of such intersex biological conditions? Will the psychiatrist or the psychologist have to diagnose a gender identity disorder before a person can get a transgender certificate? If so, would this not further pathologize the identity? Even if we find good reasons for these criteria, will the transgender person be facilitated enough to procure these documents? Visits to the doctor or the psychologist puts one in an extremely vulnerable position, heightened manifold when the doctor does not explain the situation and when limited understanding of that specialized discipline hinders people’s ability to ask questions. Many transgender persons do not have an extensive educational experience owing to discrimination.

Perhaps, it was in recognition of these facets that the Supreme Court did not lay out any criteria for self-identity, leaving it completely to be self-determined.

3. Transgender Certificate

The Trans Bill, 2016 contemplates that the certificate of identity be issued to a transgender person as “transgender” [S. 7]. Plain reading of this section is contrary to the Supreme Court judgment that a transgender person has a right to self identify as “male, female or third gender.” The Trans Bill, 2016 must recognize that some transgender persons may want to identify with the opposite sex in true recognition of their deeply felt gender identity. They may not want to recognize as transgender. Even if a transgender certificate is required to identify persons eligible for associated benefits, the certificate must additionally make provision to identity a person’s deeply felt gender identity.

4. Reservations

The Trans Bill, 2016 does away with the direction of the Supreme Court obliging governments to provide reservation in educational institutions and public appointments.

5. Failure to Enact Measures to Address Stigma, Fear, Shame Etc.

There are no provisions in the Trans Bill, 2016 to address problems “such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc.”[24] as required by the NALSA decision. To be sure, there are welfare measures envisioned for transgender persons[25] but nothing in the 2016 Bill suggests that the government will initiate programmes directed at the general public with the aim of educating them about transgender persons. Shame and stigma will not be addressed until the society that stigmatizes and shames this population is educated in this regard. The Trans Bill, 2014 understood this when it proposed measures [S. 25, Trans Bill, 2014] to raise awareness among the general population to “promote values of inclusion”, “foster respect”, “provide orientation and sensitization at school” etc. Moreover, failure to enact public awareness programmes is in express contravention of the directions of the Supreme Court in NALSA.[26]

6. Penalties in Trans Bill, 2016

Whether criminalizing discrimination and exclusion of transgender persons would be a good means to address the stigma transgender persons face is open for debate. In a scenario when there are no educational or awareness building programmes about transgender persons addressed to the general public, might criminal penalty against discrimination lead to further entrenchment of negativity against this population? The final Act must seriously consider this question before enacting this measure.

Additionally, even if criminal penalties are employed, they create an anomaly. The Trans Bill, 2016 sets an imprisonment term of six months to two years (along with fine) for “harms and injuries” that endanger “life, safety, health, or well- being.” This is as per S. 19(d) of the Trans Bill, 2016. The kinds of harms contemplated by this section extend from economic abuse, to verbal abuse, to physical abuse, and sexual abuse.

The anomaly is that some of these kinds of abuse are dealt differently by co-existing law—the Indian Penal Code, 1860 (I.P.C.) being a prime example. For example, life endangering physical abuse contemplated in the Trans Bill, 2016 seems to most closely resemble grievous hurt in I.P.C.[27] Grievous hurt is punishable with imprisonment up to seven years (along with fine).[28] Grievous hurt caused with a weapon can attract an imprisonment of up to ten years along with fine.[29] Grievous hurt caused by acid will attract imprisonment of at least ten years extendable to life (along with fine).[30]

Under which Act will a person who has caused grievous hurt to a transgender person, be punished? Will the offender receive a punishment under the provisions contemplated under the special Act or will the offender be punished under the I.P.C.? The general rule is that the special Act takes precedence over the general Act but this rule is confounded by the following assertion in the Trans Bill, 2016: “the provisions of this Act shall be in addition to, and not derogation of, any other law for the time being in force.”[31]

7. No Protection from Discrimination on Grounds of Sexual Orientation:

The Supreme Court in NALSA had stated that, “Discrimination on the ground of sexual orientation and gender identity, (…) impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”[32] However, this version of the Bill, like the last version of the Bill, fails to prohibit discrimination on grounds of sexual orientation.[33]

8. 8. “The evil that men do lives after them; the good is oft interred with their bones”[34]

Let this not be the case here. There are some good aspects of the Trans Bill, 2016 as well which the final Act would do well to retain. Provision is made for separate sero-surveillance centres[35]; the right of residence (in the sense of a right to not be separated from one’s family/removed from the house) is guaranteed to all transgender persons and not just transgender children[36], and there is an attempt to make education more inclusive and the phrases which could lead to potential segregation in this field are done away with.[37]

Words are magic things. The magic of words, however, can also be lost if one is careless with them. The legislature must carefully consider the directions of the Supreme Court before finalizing an Act to protect the rights of transgender persons. For, if they fail to do so, a keen observer is liable to ask, “What ails the legislature?” Another may stare blankly in response.

FOOTNOTES AND REFERENCES

[1] Surabhi Shukla is a lawyer and currently, a PhD (law) student at the University of Oxford, U.K.

[2] 2009 Delhi High Court. See para 129. Judgment here: https://www.escr-net.org/sites/default/files/Court_decision.pdf

[3] Meaning in the context the judgment was given—sex between persons of the same sex.

[4] I must put before the reader, in fairness, that the Trans Bill, 2014 was not without flaw. My colleagues and I have critiqued provisions of it in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[5] S. 4(2), Trans Bill, 2014.

[6] S. 7, Trans Bill, 2014.

[7] S. 10, Trans Bill, 2014. As opposed to taking steps to address violence after it has occurred in Trans Bill, 2016.

[8] S. 11, Trans Bill, 2014.

[9] S. 19, Trans Bill, 2014.

[10] S. 21, Trans Bill, 2014.

[11] Article 142, The Constitution of India, 1950.

[12] A former judge of the Supreme Court of India.

[13] Justice (Retd.) Ruma Pal, ‘Separation of Powers’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016)    265. In fact, Pal goes so far as to say that such directives have, ‘rarely been overturned by legislation to the contrary.’ [page 265]. Pal and another commentator writing on the issue have identified only one instance in which Supreme Court directions faced resistance from the executive in the case of Prakash Singh v. Union of India (2009) 17 SCC 329. See also, Raeesa Vakil, ‘Jurisdiction’ in Choudry, Khosla & Mehta (ed), The Oxford Handbook of the Indian Constitution (OUP 2016) 381. I am unaware of other instances.

[14] This power vests both in the High Courts and the Supreme Court.

[15] Justice Ruma Pal and Samarditya   Pal (eds) MP Jain’s Indian Constitutional Law (6^th edn, LexisNexis Butterworths Wadhwa, 2010) 287-288.

[16] [ S. 2(i)].

[17] Serena Nanda, “Neither Man Nor Woman” xx (Wordsworth Publishing Company, 2^nd Edition, 1999).

[18] Para 11, NALSA.

[19] Para 12, NALSA.

[20] Para 129(2), NALSA.

[21] S. 4(2), Trans Bill, 2016.

[22] Ss. 5-7, Trans Bill, 2016.

[23] Para 129(5), NALSA.

[24] Para 129(5), NALSA.

[25] Ss. 9 and perhaps, 18 of the Trans Bill, 2016.

[26] Para 129(8), NALSA.

[27] S. 32o, Indian Penal Code, 1860.

[28] S. 325, Indian Penal Code, 1860.

[29] S. 326, Indian Penal Code, 1860.

[30] S. 326A, Indian Penal Code, 1860.

[31] S. 20, Trans Bill, 2016.

[32] Para 55, NALSA.

[33]This argument is also made in Upasana Garnaik, Surabhi Shukla and Brian Tronic, Rights of Transgender Persons Bill, 2014, in 10(1) LAW AND POLICY BRIEF (Ashish Bharadwaj and Saptarshi Mandal ed., October, 2015).

[34] Mark Antony at Julius Caesar’s funeral in Shakespeare’s play, Julius Caesar.

[35] S. 16(a), Trans Bill, 2016.

[36] S. 13, Trans Bill, 2016 as opposed to S. 11, Trans Bill, 2014.

[37] S. 2(c), Trans Bill, 2016 as opposed to S. 2(i), Trans Bill, 2014.

This article originally appeared with the title “Is this the Transgender Persons “Prohibition of Rights” Bill 2016?” in Dalit Camera and has been republished with consent of the author and website.

To
Smt. Ghazala Meenai,
Joint Secretary,
Ministry of Social Justice and Empowerment
New Delhi

Reg: Comments/suggestions regarding the Rights of Transgender Persons Bill , 2015

Dear Madam,

We are a group of feminist queer activists and are members of LABIA, a queer feminist LBT (lesbian, bisexual women and trans persons) collective based in Bombay (www.labiacollective.org).

We have looked at the bill put up by the Ministry and have discussed the same within our collective. Please find below some of our comments/suggestions that we would like you to consider.

Comments on the Rights of Transgender Persons Bill, 2015

1. First of all, we welcome the efforts taken by your Ministry to address the concerns of trans persons. While we think that the bill takes several positive steps in the right direction, there are still many concerns that would need to be addressed and the bill in it’s present form would need a lot more working on before it can be finalised as a document addressing comprehensively concerns of the trans community in India.

2. The main concern with the bill is that it makes it mandatory to undergo a screening process through a committee to ascertain one’s transgender identity. We would like to submit that identity and experience of one’s gender is a personal matter and there cannot be any ‘expert’ deciding this for a trans person. Even the NALSA judgement of 2014 recognises the right to self-identification and this would only be in line with the thrust of the current bill in it’s guiding principles on autonomy, dignity, full participation, freedom of making one’s choices and so on. Further in the definition of transgender in the current bill, it is stated that, “Transgender Person should have the option to identify as ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/hormones”. Here too there is emphasis on person’s right to choose. We therefore submit that gender identity should be based on self-declaration and not on the recommendations of a committee.

3. We do agree that certification would be necessary in cases where trans persons would have to avail of special benefits/welfare measures from the state in the form of reservation, scholarships, loans and so on. In this case the certification process can be carried out by a committee. However the focus of this certification cannot be to decide whether a person’s gender identity is transgender or not; it will be to decide whether the particular trans person is eligible for benefits? Here too we suggest that the decision of eligibility be based on factors such as socio-economic class, caste of the individual as well as individual factors such as levels of family support, extent of violence, discrimination faced by the individual and so on.

We strongly recommend that identification as trans person and issuing of identity related documents for the same should be based on self-identification           and separated from the process of certification through a committee, which         would be linked to access to special measures and programs.

4. The bill constantly mentions “transgender children”. We are not sure how these will be identified since it is well established that many people who may identify as trans persons as adults may not do so when they are children for various reasons including the fact that they do not have the language to do so. So the Bill needs to talk about protection to all gender non-conforming persons as well from victimisation, discrimination and violence that they face because of their gender non-conforming expression and behaviour.

This also raises the issue of age at which a person can self identify as a trans person, which is not addressed in the Bill at all. Usually one would expect this to be made possible for adults (which would be above the age of 18). However, research across the world and in India has established that some people know of their gender identity from a very early age and do choose to access medical interventions around puberty. We hence need more discussion on this as far as persons under the age of eighteen are concerned.

5. While the idea of ‘reasonable accommodation’ is introduced in the definitions and stated a few times in the bill, it does not figure in the guiding principles of the document or in the section (Chapter III) on rights and entitlements. We submit that, this is really at the core of any law/policy that aims to achieve inclusion of trans persons. Since we live in a world that is structured around the idea of gender binary i.e. there are only two genders, reasonable accommodation for trans persons would mean that these social structures allow for people to present in their preferred gender without exclusion. For instance, reasonable accommodation in the context of schools would mean that gender non-conforming children are allowed to wear the clothes they prefer and not stick to the gender binary uniform or allowed to choose the sport they would like to play etc.

6. Thus reasonable accommodation means, some reasonable changes in all public institutions and structures that are based on this understanding of binary gender. Considering that there are already protections for “women” through gender segregated spaces such as train compartments, security lines in malls and airports, school uniforms, public toilets and so on, each of these will have to also be revisited to accommodate trans persons so that they can access all of these with their preferred gender expression. This idea needs to be reflected in the bill and cut across all chapters on education, employment and so on.

7. One of the spaces where such accommodation needs to be made is within law itself. Laws related to family, marriage, adoption, are very gender specific and are modelled on this binary gender understanding. With the recognition that this law gives to trans persons as a gender category, and an acknowledgement of their being included as full citizens in this country, all of these need to be revisited and looked at to include the families created by trans persons with their partners and children.

Presently this Bill only suggests changes within the sexual assault laws. These are necessary but far from sufficient to grant legal rights and protection to all aspects of trans persons’ lived realities. So there is need to state that all necessary amendments will be made in the IPC and in all law to make sure that trans persons can avail of the legal system to attain their full citizenship rights.

8. We are extremely glad that the Bill recognises the existence of targeted violence and discrimination against trans persons in both public spaces as well as families and communities. We, however, feel that no measures have been actually put in place to address such acts. The Bill does not clearly state the mechanism by which this will be redressed and the kind of support that shall be extended to trans persons to deal with the aftermath of such attacks. No penalties are prescribed in the law for perpetrators of violence.

We believe that the extent of stigma, discrimination, and violence that trans persons face requires a separate law addressing targeted violence along the lines of the “Scheduled Castes and Tribes (Prevention of Atrocities) Act” or/and the provisions made for protection of women from violence in the domestic space and the workplace. This law needs to make a definite commitment towards formulation of such laws and the procedures required to implement them.

9. In the chapter (III) on Rights and Entitlements, subsection 11 (Protection from torture or cruel, inhuman or degrading treatment of punishment) and 12 (1) (Protection from abuse, violence and exploitation), where the role of the appropriate authority is mentioned in taking appropriate measures, legal measures should be added to the existing list of measures that they are expected to take.

10. The sub-section 12 (2) is one of the most problematic sections of the Bill. First of all it does not recognise the amount of violence that some trans persons face from the police themselves. Secondly a mention of police officers as social workers to guide trans persons to appropriate authority or to advise them of their rights or to guide them to an organisation, is a ridiculous understanding of the police as social worker instead of law enforcer. This needs to be discarded and instead there should be a commitment to identifying specific sections of the IPC that can be applied and in what ways for trans persons.

11. Further, the definition of violence in the current bill includes violence towards self. Self inflicted injury cannot be placed on the same platform as violence – sexual, physical, emotional enforced by family members, neighbours, general public, police, pimps and so on. Self-harm does require a response in the form of formal and informal support services, but not in the form of criminalisation and punishment. In fact the Home Ministry has recently recommended that the controversial Section 309 of the IPC dealing with suicide attempts be effaced from the statute book. Thus the definition of violence needs to be changed to exclude self directed harm/injury.

12. While there are several welfare measures suggested in the area of education, which would enhance access to education, reservations in educational institutions, especially in those for higher education (as given under the chapter on employment) are missing.

13. Another big problem with the Bill is its inadequacy in laying down a clear structure or guidelines for effective implementation. For example, while the district screening committees are to make recommendations for certification, the process by which they will do so or guidelines to do so are missing. There is concern over uniformity of the functioning of these committees across the country and moreover about whether these committee members would function of their own unique understanding of the issues at hand including prejudice or misinformation about trans persons.

Similarly, the constitution of the state level authority, which is the certifying authority is unclear. The guidelines for the working of this state level authority needs to be expanded upon and not merely referenced as “on the lines of the Aravani Welfare Board”. Even if these are to be State matters, some guidelines in the Central Bill would always help maintain some uniformity without taking away the specificity of each region.

14. The Bill also needs to state very clearly the process of monitoring the implementation of this Bill. Inclusion of community members from varied backgrounds and identifying in different gender identities and academics/activists working on issues of gender, at all levels is also important for any meaningful implementation of this Bill.

15. Finally, there are many issues of language. As we know language itself is very gendered and so has to be looked at carefully throughout in the drafting of this Bill and all laws in general. Use of pronouns has to be carefully made. His/her as pronouns are inadequate to include all genders and this Bill at the very least should pay attention to such details. In our submission we have constantly referred to “trans persons” though the Bill has used “transgender persons” all along. In our understanding since this Bill is talking of “transgender” as a new gender category along with “man” and “woman”, “transgender person” does not sound right and so there is growing usage of trans persons as a more inclusive and descriptive category.

Considering the various things that need to be addressed within this Bill, we do think that while welcome, it is not acceptable at all in its present form. We request the Government to firstly extend the date for comments and suggestions and then hold consultations with various persons to arrive at a resolution of some of these unresolved issues like age at which self identification can be done; certification for what purpose and criteria for giving these; changes within civil and criminal laws required; process to redress and deal with targeted violence, discrimination, and abuse; composition and structure of implementation and monitoring bodies; etc.

These set of recommendations have been a collective effort of members of the LABIA – A Queer Feminist LBT Collective, a group of lesbian and bisexual women and trans* persons. Since our inception in 1995 as Stree Sangam, our foremost concern has been to break the invisibility around queer lives and create safe spaces for LBT persons. We have framed our comments on the basis of our experiences as well as the experiences of people we have come in contact with during the course of our outreach and research work as a collective.

Some members of our collective recently published a book titled, ‘No Outlaws in the Gender Galaxy‘, 2015, New Delhi: Zubaan Publications, that dwells upon lived experiences of over 50 individuals who do not fit into the gender binary of ‘man/woman’.

Sampoorna Working Group Response to MSJE’s Rights of Transgender Persons Bill, 2015

January 5, 2016

Sampoorna Working Group

Dear Smt Ghazala Meenai,
Joint Secretary (SD),
Room No. 616,
‘A’ Wing,
Shastri Bhawan,
New Delhi-110001

Dear Madam,

This document has been structured as follows:

1. Overall comments
2. Key points
3. Chapter-wise comments

OVERALL COMMENTS 

1. The time frame allocated to us for giving feedback has been extremely short. This does not allow for extensive and comprehensive group processes to be undertaken and compromises the quality of our feedback to you. We request that a reasonable period, of atleast 4 weeks, be allocated as extension to the current deadline.

 2. Certain existing judgments and reports are not comprehensively reflected by the current TG draft bill. Some of these documents are, the Supreme Court judgment relating to the rights of transgender persons, the MSJE Expert Committee Report and the TG Bill of DMK member of parliament, Mr Tiruchi Shiva. It will be a great loss to go ahead with the current draft without benefitting from the achievements of these documents.

KEY POINTS 

1. We strongly believe that the Bill should be expanded to include intersex people. All intersex people face acute issues like lack of access to healthcare, education, employment and face violence, stigma and discrimination at multiple levels. Moreover, there are people with intersex variations who also identify as transgender. We recommend that the bill be renamed THE RIGHTS OF TRANSGENDER AND INTERSEX PERSONS BILL.

2. We recommend self-identification for legal gender recognition of transgender and intersex persons. This self-identification can be done through notarised legal affidavits which can then be used to change legal gender markers on all identity cards including, but not limited to, educational certificates, ration cards, driving license, PAN cards, passports etc.

3. For claiming state benefits, we propose a 2-step procedure towards transgender & intersex recognition. The first is the issuing of a diagnosis of being transgender and/or intersex, by an appropriate medical professional. This is a [diagnosis] certification, mentioned in this document
as: TRANSGENDER/INTERSEX [DIAGNOSIS] CERTIFICATION, or simply, the TRANSGENDER/INTERSEX CERTIFICATION.

The second is the issuing of a transgender identity/intersex card, that will be a document to be issued only by the appropriate state authority, mentioned in this document as TRANSGENDER IDENTITY/INTERSEX CARD. Following this:

3A. We strongly de-recommend the issuing of a TRANSGENDER/INTERSEX CERTIFICATION, by any state authority or any trans or intersex group, including the TG Welfare Board. It will lead to the setting up of gatekeepers and power brokers at multiple levels, both within the state mechanisms and the trans/intersex communities.

We recommend, as is the international practice, that the only person/s authorized to issue a TRANSGENDER [DIAGNOSIS] CERTIFICATION, is a mental health professional and the only person/s authorized to issue a INTERSEX [DIAGNOSIS] CERTIFICATION, is the appropriate medical professional [endocrinologist/gynecologist/urologist]. The Bill should therefore aim at ensuring mental health professionals and appropriate medical professionals for intersex persons in government hospitals, with special training in the best practices, as recommended by WPATH, the World Professional Association of Transgender Health and the use of non-pathologising diagnostic frameworks for trans and intersex people.

3B. We strongly de-recommend the issuing of a TRANSGENDER IDENTITY/INTERSEX CARD, by any trans/intersex group, including the TG Welfare Board. It will similarly lead to the setting up of gatekeepers and power brokers at multiple levels within the trans and intersex communities.

We recommend that the TRANSGENDER IDENTITY/INTERSEX CARD be issued to self-identified trans persons having the TG [Diagnosis] Certificate and to intersex people having that diagnosis from the appropriate medical professional, by central and state government appointed authorities alone. These ID cards can be utilized for accessing state benefits including reservations.

4. Additional chapters:
Health is a huge concern for trans and intersex people. We recommend that a separate chapter on health be brought into the bill that fully addresses trans and intersex healthcare as well as general healthcare for these communities.

Another additional chapter we recommend is on sports, given the rampant discrimination and lack of international guidelines trans and intersex sports people face in the country.

5. In Chapter 7 – DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT, ‘Awareness raising’ was the only area covered. We believe that formulating & implementing legal protections and safeguards for trans and intersex people is one of the prime duties of the appropriate government and have included these in this feedback.

6. We recommend that all trans and intersex people be considered socially backward and affirmative action be sought in education and employment. Special consideration in terms of benefits and affirmative action be given to trans and intersex people who are SC/ST/OBC and a mechanism be instituted for issuing caste certificates for trans and intersex people who leave home young.

CHAPTER-WISE COMMENTS 

CHAPTER 1- PRELIMINARY 

DEFINITIONS
We find that the definitions given in the draft bill are not comprehensive or exhaustive enough and therefore will, in turn, adversely affect the contents, interpretations and implementation of the same. We strongly believe that a national level transgender bill should attempt to encompass and reflect broad definitions with a strong vision of change.

1. HUMAN RIGHTS 

EXISTING TEXT
(h) ‘human rights’ shall have the meaning assigned to it in Clause (i) of Section 2 of the Protection of Human Rights Act, 1993;

SUGGESTED CHANGE
‘Human Rights’ shall have the meaning assigned to it in both, the Clause (i) of Section 2 of the Protection of Human Rights Act, 1993, as well as, the Universal Declaration of Human Rights [UDHR], 1948, of which India was not only a signatory, but also an active drafting member.

2. REHABILITATION 

EXISTING TEXT
2. (p) `rehabilitation’ refers to a process aimed at enabling transgender persons to attain and maintain maximum independence, full physical, sensory, intellectual psychiatric, social and vocational ability, and inclusion and participation in all aspects of life

COMMENT
The above description is inaccurate, discriminatory and pathologising. Instead of focusing on criterions like full physical, intellectual, psychiatric, social and vocational ability, rehabilitations should be conceived of as the removal of barriers that mainstream society has placed in the way of the trans and intersex communities, leading to their historical disenfranchisement. The very idea of ‘rehabilitation’ comes from outdated disability discourses and in the given context is misapplied since it is clear that such a conceptual framework cannot make for a desirable social & political strategy.

SUGGESTED CHANGE
Remove the framework of ‘Rehabilitation’ and replace it with ‘Transgender & Intersex Inclusion in Society’.

3. STIGMA 

EXISTING TEXT
3. (r) Stigma against Transgender Persons refers to devaluing of transgender- identified or gender non-conforming people, and negative attitudes toward and lower levels of status accorded to non-cis-gender identified people and communities.

SUGGESTED CHANGE
Stigma against transgender and intersex persons refers to the labeling, stereotyping, status loss and discrimination, exercised by those who hold power, and has a bearing on the life chances of trans*, intersex and gender non- conforming people, seriously impacting their access to education, health [including sexual and reproductive health], employment, housing, formation of families and life itself.

4. TRANSGENDER PERSON 

EXISTING TEXT
(s) ‘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.

SUGGESTED CHANGE
TRANSGENDER PERSON, INTERSEX PERSON
‘ Transgender Person’
Transgender Person’ means a person whose gender identity and/or expression challenges the existing medical framework that co-relates sex and gender in a one-to-one manner. These include intersex persons, transmen, transwomen, gender-non conforming persons, gender-queers, hijras, kinnars, aravanis, jogtas and others.

‘Intersex Person’
The current medical system conceives of sex as binary, i.e. male and female. Anything that cannot be clearly understood as either of these two categories, is seen as intersex. Intersex is always congenital. In such a context, an ‘Intersex Person’ is one whose biological attributes, primary and/or secondary sexual characteristics maybe comprised of both the medical sex categories of male and female, or have only some of these attributes that are considered medically necessary to be defined as one or the other sex.

A ‘Transgender person’ and an ‘Intersex person’ should have the right to self- identify their gender and should be free to choose between any of the gender categories: Man, Women, Transgender. This choice should be available independent of both, the sex of the person, i.e. male, female, intersex, as well as any gender affirming procedure [popularly understood as sex reassignment] through surgery and/or hormones.

CHAPTER 2- TRANSGENDER IDENTITY 

IDENTIFICATION OF TRANSGENDER PERSONS
1. TRANSGENDER
EXISTING TEXT
1. Transgender should be declared as the third gender, and a Transgender Person should have the option to identify as ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/hormones. Only the nomenclature ‘transgender’ should be used and nomenclatures like ‘other’ or ‘others’ should not be used.

COMMENT
There is an inherent contradiction in this statement. In this document, as well as in the NALSA judgement, it has been stated unequivocally that the transgender person should have the right to self-identity, i.e. the transgender person can self-identify as male, female, transgender/third gender. While maintaining this, the state cannot simultaneously propose that all transgender persons be declared as a third gender. This proposal is against the very right to self-identity, already granted under the law of the land.

SUGGESTED CHANGE
A ‘Transgender/Intersex person’ should have the right to self-identify their gender and should be free to choose between any of the gender categories: Man, Woman, Transgender/third gender. This choice should be available independent of both, the sex of the person, i.e. male, female, intersex, as well as any gender affirming procedure [popularly understood as sex reassignment] through surgery and/or hormones.

For the gender category ‘Transgender’/’Third Gender’, the currently used equivalent, ‘Other/s’ should be discontinued.

 2. CERTIFICATE 

EXISTING TEXT
2. Certificate that a person is a transgender person should be issued by a state level authority duly designated or constituted by respective the State/UT on the lines of Tamil Nadu Aravanis Welfare Board, on the recommendation of a District level Screening Committee headed by the Collector/District Magistrate and comprising District Social Welfare Officer, psychologist, psychiatrist, a social worker and two representatives of transgender community and such other person or official as the State Govt/UT Administration deems appropriate.

 COMMENT
For claiming state benefits, we propose a 2-step procedure towards transgender & intersex recognition. The first is the issuing of a diagnosis of being transgender and/or intersex, by an appropriate medical professional. This is a [diagnosis] certification, mentioned in this document as: TRANSGENDER/INTERSEX [DIAGNOSIS] CERTIFICATION, or simply, the TRANSGENDER/INTERSEX CERTIFICATION.

The second is the issuing of a transgender identity/intersex card, that is a document to be issued only by the appropriate state authority, mentioned in this document as TRANSGENDER IDENTITY/INTERSEX CARD. Following this:

 1. We strongly de-recommend the issuing of a TRANSGENDER CERTIFICATION, by any state authority or any trans group, including the TG Welfare Board. It will lead to the setting up of gatekeepers and power brokers at multiple levels, both within the state mechanisms and the trans communities.

 We recommend, as is the international practice, that the only person/s authorized to issue a TRANSGENDER [DIAGNOSIS] CERTIFICATION, is a mental health professional and the only person/s authorized to issue a INTERSEX [DIAGNOSIS] CERTIFICATION, is the appropriate medical professional [endocrinlogist/gynecologist/urologist]. The Bill should therefore aim at ensuring mental health professionals and appropriate medical professionals for intersex persons in government hospitals, with special training in the best practices, as recommended by WPATH, the World Professional Association of Transgender Health and the use of non-pathologising diagnostic frameworks for trans and intersex people.

2. We strongly de-recommend the issuing of a TRANSGENDER IDENTITY/INTERSEX CARD, by any trans/intersex group, including the TG Welfare Board. It will similarly lead to the setting up of gatekeepers and power brokers at multiple levels within the trans and intersex communities.

We recommend that the TRANSGENDER IDENTITY/INTERSEX CARD be issued to self-identified trans persons having the TG [Diagnosis] Certificate and to intersex people having that diagnosis from the appropriate medical professional, by central and state government appointed authorities alone.

These ID cards can be utilized for accessing state benefits including reservations.

EXISTING TEXT
3. The certificate issued should be acceptable to all authorities for indicating the gender on official documents like ration card, passport, birth certificate, aadhaar card, etc.

COMMENT
The certificate issued should be acceptable to all authorities for indicating the ‘gender’ on all official documents including but not limited to, ration card, voter-id card, aadhar card, passport, PAN card, driving license, birth certificate, school leaving certificate, college certificate and banking documents.

Special instructions to be issued to District Supply Officer/District Food and Supplies Controller/Assistant Food and Supplies Officer/Inspector Food and Supplies in all regions to stop the practice of displaying both the previous name as well as the new name on ration cards (For example: Sukanya Alias Govind). Only the new name to be displayed on the ration cards.

 CHAPTER 3 – RIGHTS & ENTITLEMENTS 

TRANSGENDER CHILDREN 

EXISTING TEXT
7. The appropriate Government and local authorities shall take all necessary measures to ensure that transgender and intersex children enjoy human rights on an equal basis with other children and also ensure that they have the right to freely express their views on all matters affecting them on equal basis with other children.

COMMENT
The wording ‘transgender children’ needs to be expanded to include ‘transgender and gender-nonconforming’ children.

 EXISTING TEXT
8. (2) No person shall be deprived of his personal liberty only on the ground of being a transgender and intersex.

SUGGESTED CHANGE
No person shall be deprived of his/her/their personal liberty only on the ground of being transgender.

Applicable similarly to Subsection 10 of this Chapter III

 EXISTING TEXT
11. The appropriate Government and local authorities shall take all appropriate administrative and other measures to protect persons from being subjected to torture, or cruel, inhuman or degrading treatment or punishment.

COMMENT
Specify persons as ‘transgender and intersex persons’

 SEXUAL ASSAULT 

EXISTING TEXT
12. (4) Necessary amendments in IPC to cover the cases of sexual assault on Transgender Person.

SUGGESTED ADDITION
Amendments to the IPC to expand the category of victim/survivor to include the wide spectrum of trans identities/expressions and intersex persons that exist in society.

EXISTING TEXT
12 (8) Criminal and disciplinary action against delinquent police official in cases of violation of human rights of Transgender Persons.

COMMENT
Criminal and Disciplinary (Departmental Proceeding, show cause, suspension, transfer – need to specify?) against all state actors – and not just police officials.

 EXISTING TEXT
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.

COMMENT
The intent of this section needs discussion. How is ‘parent’ defined – what structures of kinship are being defined/ held up especially as the definition of family is given as: “Explanation—‘Family’ means a group of people related by blood, marriage or adoption to the Transgender Person. What about adoption of transgender/ intersex children? What about Transgender persons willing to adopt Transgender/ Intersex children? What about the Hijra family?

CHAPTER 4 – EDUCATION 

SUGGESTED ADDITIONS 

1. Special focus has to be brought to school education for trans & intersex students since many are reported to drop out due to hostile environment, harassment and discrimination amongst other reasons.

2. Sensitisation programmes on Trans and intersex issues to be part of syllabus.

3. Strict action to be taken against any institution or person holding a position of authority that is found to be discriminatory to Trans and/or intersex students.

4. Counselling sessions for parents of Trans and intersex kids to help them come to terms with their children’s identity and expression.

 5. Teacher trainings on Trans and intersex issues and sensitisation to be done.

 6. Affirmative action in education to be extended to Trans and intersex people.

 7. Specify the promulgation of text material – inclusion of transgender lives and realities by Syllabus Committees, NCERT et al or any other appropriate bodies at all levels – Secondary, Higher Secondary, College and University levels

– Admission of Transgender and Intersex persons in Educational Institutes at all levels
– Extension of Anti Ragging Legislation and UGC Guidelines for covering Transgender/ Intersex students

CHAPTER 5 – SKILL DEVELOPMENT AND EMPLOYMENT 

SUGGESTED ADDITIONS
1. Medical leave to be granted for sex reassignment surgeries in government and private jobs and directions for the same to be issued by the government.

2. Affirmative action to be provided in employment for Trans and intersex people.

 3. Amendment to relevant Acts (such as the recent amendment to Factories Act 1948 – Section 66 A for the inclusion of Transgender persons) that guarantee employment or make provisions for employment of transgender persons amendment for extension of welfare schemes / regulating/ promoting safety, protecting against occupational diseases and promoting health and hygiene in the workplace/ Factories for Transgender Persons

– For example Amendment of Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013 to include Transgender and Intersex Persons’ experiences of workplace harassment

CHAPTER 6 – SOCIAL SECURITY, HEALTH, REHABILITATION & RECREATION
OVERALL COMMENT
1. Healthcare is a major concern in the life of a trans/intersex person. As a result, it deserves an independent and dedicated chapter and should not be clubbed with others like in the current title.

2. Categories of Rehabilitation and Recreation to be removed.

 ADDITIONAL CHAPTER – HEALTH 

SPECIFIC COMMENTS
1. All Major Government Hospitals should follow protocols recommended by the World Professional Association for Transgender Health [WPATH], with special attention to the following:

(i) To stop pathologising human bodies through the now outdated diagnostic frameworks that do not fit into the neat biological categories of male and female.

(ii) To stop the requirement of a GID [Gender Identity Disorder] diagnosis as a basis for accessing trans healthcare.

 2. The ‘appropriate government’ should host the WPATH meeting in India, at least once in 5 years, to bring the latest in trans healthcare to both the trans communities, as well as, medical professionals working with trans populations.

3. Being a highly interdisciplinary area of work, a Transgender and Intersex Health Department should be established in these hospitals.

(i) Sensitization and training drives to be undertaken in all government healthcare facilities about the special needs of the trans and intersex population w.r.t general health and in medical emergencies.

(ii) Dedicated trans and intersex wards to be established in Government Hospitals.

 4. Monitoring and review of this department’s performance should ensure participation of National & State Transgender Commissions.

 5. Transgender and intersex health should be incorporated as a subject in medical education, right from the stage of MBBS.

 6. Malpractice
(i) Negligence cases related to transgender and intersex patients to be treated stringently and medical license to be revoked.

(ii) Several psychiatrists have been known to provide false diagnoses and  subject their patients to invasive treatments and drug control in order to subdue the person. This is almost always done in collusion with the family and without the patient’s informed consent. Any psychiatrists attempting to “cure” persons of their gender identity and/expression, will be guilty of malpractice and liable to lose their license and this should be made punishable by law.

 7. To make the “corrective surgeries” performed on intersex infants illegal.

 8. Address the vulnerability of certain Transgender Women Communities to HIV, Hepatitis and Malnutrition as well as Mental health of Trans and Intersex Persons including clinical depression and suicidal tendencies

 SEX REASSIGNMENT SURGERY 

EXISTING TEXT
20(b) sex reassignment surgery, free of cost;

SUGGESTED ADDITION
In government hospitals gender affirming procedures, popularly known as sex reassignment procedures, including counseling, surgeries and hormone therapy, to be made free of cost. Costs to be regulated and subsidized in private hospitals and quality of surgeries to be ensured.

SOCIAL SECURITY 

SPECIFIC COMMENTS
1. State Housing should be provided to Trans and intersex people.

2. There must be a free hostel for transgender and intersex persons set up near all major government train and bus hubs in cities to ensure safe accommodation for trans people fleeing their homes.

3. A free government LGBTIH helpline and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones  to this helpline must also be available at all bus and train stations.

21. REHABILITATION OF TRANSGENDER PERSONS
Remove the framework of rehabilitation/s.

 OBC STATUS 

EXISTING TEXT
23. 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 or reservation under their respective categories as per the existing Rules.

SUGGESTED CHANGE
Since the majority of transgender people are socially disempowered and economically dispossessed, being transgender can be seen as belonging to a backward class. However, when providing benefits and affirmative action, special consideration and reservations to be given to those transgender persons who by birth belong to SC/ST and OBC categories. As a lot of Trans people leave homes without caste certificates when they are very young, provision to be made for these to be issued.

 ADDITIONAL CHAPTER – SPORTS

1. Transgender and Intersex people should have equal opportunity to participate in sports.

 2. Policies governing transgender and intersex athletes in sports should be based on sound medical knowledge and scientific validity but should also take into account experiential knowledge of transgender people and views of experts on bioethics, gender and sports.

 3. Privacy of medical documents of transgender and intersex athletes should be respected. A panel of experts consisting of medical as well as non- medical experts especially, those who work on bioethical issues around sports participation of transgender and intersex people must be created to ensure that athletes are explained pros and cons of any medical intervention enabling them to make informed choices and thus safeguarding athlete’s welfare concerns.

4.  Informative and effective educational resources related to transgender and intersex issues must be compiled and made available to sport administrators, staff, athletes and doctors affiliated to Sports Authority of India centres and all national governing bodies of sports.

 5. A panel of experts comprising of medical and non-medical people working with transgender and intersex people as well as transgender and intersex athletes and representatives of the communities should be created to formulate a policy for inclusion of transgender and intersex people in sports – a policy that may follow IOC recommendations but must also borrow from best practices in the world in order to provide a progressive model of inclusion.

 6. Adequate compensation and alternate government jobs to be provided to transgender and intersex athletes who have suffered loss of employment and livelihood due to their gender identity/intersex status.

CHAPTER 7 – DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT 

GENERAL COMMENT
Request substitution of the term “Transgenderism” in this section as it pathologises Trans identities and persons.

SPECIFIC COMMENTS
The duty of the appropriate government goes far beyond just raising awareness around Trans issues. Primary amongst its duties would be to ensure implementation of the guidelines of this bill. This implementation will only be possible when specific structural mechanisms are set-up that will allow the government to execute the provisions and will give a platform to the communities to hold their governments responsible. In addition to this, an important duty of the government is to provide legal protections and safeguards to trans and intersex people.

 SUGGESTED ADDITIONS
1. Appropriate budgetary allocation to implement the provisions of this bill.

 2. The establishment of State and National Transgender Commissions.

 3. The censor board to be instructed to disallow material in film and television that portray trans and intersex communities in a negative light.

4. The establishment of fast track special courts for the redressal of complaints by transgender and intersex persons.

5. There must be a comprehensive Anti-Atrocities Act that spells out the rights of transgender and intersex people to gender identity and or expression of their choice and punishes any atrocities against them. The atrocities perpetrated against transgender and intersex persons range from rape, rape by insertion of objects, stripping, mutilation of genitals, by forcibly cutting the hair of trans women, forcibly imposing a dress code, confinement etc. Verbal, physical, sexual and psychological abuse to be brought under the purview of this act and penalised.

6. An Anti-Discrimination Act must enable transgender and intersex people to take legal action against any form of discrimination encountered in pursuing their education, seeking employment, getting access to housing, access to healthcare, access to bathroom space, access to public transport, etc.

7. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion and demand their routine reporting to the police act as a vehicle for police harassment to be repealed.

8. Detention places like police stations & prisons to have dedicated units for trans and intersex inmates with proximity to/provision for regular family and community support.

9. Trans and intersex inmates to have access to trans/ intersex and general healthcare and HIV treatment in prisons.

10. State Human Rights Commissions and the National Human Rights Commission [NHRC] to have a dedicated cell for documentation of Human Rights Violation against trans and intersex communities.

11. Complaints about harassment, atrocities, discrimination etc made to the state or national commission for trans and intersex people must ensure the setting up of an enquiry through the police or a state enquiry commission whose evidence or findings will be permissible in a court of law.

12. Any complaint made by a trans or intersex person in any police station should be forwarded to and brought to the notice of the state or/ and national commission for trans people which will then assist the complainant in their complaint, follow up and further proceedings without fear of further victimisation or discrimination.

13. Transgender and intersex people must be handled by women police officers and not by male police officers. The rules about arresting and detaining women at night should strictly apply to transgender people.

14. Trans women should be imprisoned in female prisons. Trans men or gender non-conforming people to have separate cells in women’s prisons to prevent sexual violence.

MISCELLANEOUS 

CHAPTER 3 – RIGHTS & ENTITLEMENTS 

EXISTING TEXT 

12 (2) Any police officer who receives a complaint or otherwise comes to know of abuse, violence or exploitation towards any Transgender Person shall inform the aggrieved person of:
(b) the particulars of the nearest organization or institution working for the rehabilitation of Transgender Person who have been subject to abuse, violence or exploitation;

SUGGESTED CHANGE 

[b] the particulars of the nearest organization or institution working for transgender and intersex people.

CLARIFICATIONS SOUGHT ABOUT THIS DRAFT 

CHAPTER 8- MISCELLANEOUS 

OVERALL COMMENT
This chapter begins with No 5. It seems that this is either mis-numbering, or, the points No 1 – to – No 4, have gone missing.

1. EXISTING TEXT
30. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.

COMMENT
This is not clear. Please elaborate further the following point: Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.

 2. EXISTING TEXT
9. (2) The appropriate Government and local authorities shall take appropriate measures to ensure full enjoyment of the right mentioned in sub-section (1) of section 7 by:—

COMMENT
A section 7, with subsection [1], is mentioned above. No such section exists in this document.

3. EXISTING TEXT
12 (2) Any police officer who receives a complaint or otherwise comes to know of abuse, violence or exploitation towards any Transgender Person shall inform the aggrieved person of:
(a) the right to apply for protection under sub-section (2) of section

COMMENT
The provision is left unmentioned: ‘subsection [2] of section……’ Intersex perons to be added to this clause.

4. NOTE 

12 (5), (6) and (7) are missing.
………………………….END OF DOCUMENT……………………………..

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