We are writing to you from Nirangal, an organization working for the welfare of transgender community in South India.

We participated in the consultation of South India Transgender Samithi and fully endorse the press release adapted. Please find below the edited version in which we have made some minor changes like including some more cultural identities within the transgender community.

Regards,
Sivakumar and Vikram
Nirangal

CONSULTATION ON RIGHTS OF TRANSGENDER PERSONS BILL, 2015.

The South India Transgender Samithi held a consultation on the Government of India’s Rights of Transgender Persons Bill, 2015 on the 30th of December. The Consultation brought together community members from across South India at the Indian Social Institute in Bangalore to discuss the new bill which has been made available on the Ministry of Social Justice and Empowerment’s website. This Bill is the Government of India’s response to a private members Bill also dealing with the Rights of Transgender Persons which was passed unanimously in the Rajya Sabha earlier this year.

The unanimous position arising from this consultation was that the deadline of 4th January, 2016 given by the government to submit comments on the Bill was incredibly short and unfeasible. It was agreed by all present that the deadline needs to extend by at least a month during which
period the government must take the initiative to consult all community members – this is feasible given the small size of our community. Without such effective consultations and time period given the entire exercise will prove to be a failed one that disregards the varied deeply personal and political struggles of the transgender community for self identification and dignity.

In terms of substantively discussing the Bill, the following issues were flagged as seriously worrying:

1. IDENTITY: The entire struggle of transgender people is for us to be able to live in our chosen identities. However, the bill does not provide a mechanism for self identification – instead a recommendation for certification as transgender is “Issued by a state level authority… 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”. Many of us in the transgender community have struggled with the transphobic biases and deeply unscientific understanding of psychologists, psychiatrists, magistrates, social workers, etc. and we are not comfortable with them having authority over declaring people as transgender. The Supreme Court’s NALSA v. Union of India judgment in 2014 made a strong case for the right to self-identification of transgender persons, which would mean a minimum of procedural barriers from claiming recognition. This Bill on the other hand proposes a complex two-tiered mechanism which risks trapping transgender individuals in a bureaucratic apparatus to obtain basic recognition of their identity. We believe that people should be able to self-identify as any gender regardless of surgery/hormones, by filing a court affidavit declaring the same and converting all their identity documents to reflect this.

2. CERTIFICATION: Once a transgender person has filed the affidavit, all bodies that produce IDs and certificates, including ration cards, driving licenses, and educational institutions should be compelled by law to change the name and gender of the person on the certificates they have issued in the past. They should only list the changed name and gender, and not provide both names as alias the way that ration cards currently function. For benefits from the state there could be a certification process, but the certifying panel needs to include a larger number and diversity of transgender people from all the identities – transwoman, trans man,thirunangai, thirunambi, maruladi, kothi, hijra, shivashakti, jogappa, aravani, jogta, etc. that are locally culturally relevant.

3. PENALTY: The Bill in its present form is at most a reflection of intent, but has no clauses that elaborate on the penalties for non-compliance. If there no penalties for defaulting on the provisions of the Bill then the bill will be completely unenforceable and will be nothing more than a piece of paper. It also does not specify a clear line of duties and responsibilities when it comes to governmental and non-governmental agencies. Beyond that, it was also felt that the Bill needs to cover a more specific range of offenses against the community beyond
what it already does, including atrocities, police violence, name-calling, lack of access to public and religious spaces, and exclusion even from burial grounds.

4. VIOLENCE: The way the bill defines violence is seriously flawed. To start, it is limited to “intentional use of physical force or power” which includes self harm. First of all, defining physical harm as having to be intentional to be considered by this bill limits the reach of the bill and compromises cases of violence on transgender people by requiring proof of the intention of the assailant/perpetrator. Also since suicide rates are very high in the transgender community it is worrying that self harm is also treated on the same footing as other forms of violence – this would effectively make most transgender people targets of this bill and make people’s lives even more miserable when they act on suicidal feelings. This bill also does not take sexual, emotional or verbal violence against transgender people seriously, nor does it take adequate measures to guard against major perpetrators of violence against transgender people: police, partners/clients, and the family. It is also different for specific transgender groups: for the Jogappas it could be the temple authorities, for hijras in sex work it could be the police and clients and for children it is the family and school that becomes their source of violence. The police are treated as protectors of transgender people and there are sections guarding against police inaction if crimes occur on transgender people, but nothing to guard against atrocities by the police.

5. EMPLOYMENT: Employment is a major problem faced by transgender people. The Lok Sabha bill has ended up de-incentivizing employers in the private sector from considering transgender people for employment by altogether deleting sections 23 and 24 of the Rights of Transgender
Persons Bill 2014 of Tiruchi Siva as passed by the Rajya Sabha. The scope of the reservation is limited by being restricted only to government jobs and with transgender people being such a minority within the proposed OBC category. When it comes to the issue of reservations, we as a community would like a separate quota based on gender and do not want to be clubbed with SC, ST or OBC – instead there could be internal reservation for SC/ST/OBC transgender people to allow fair access. It is also important for the bill to clearly mention that reservation extends to education.

6. COMMISSIONS AND COURTS: The bill also removes some crucial provisions from the private members’ Bill of Tiruchi Siva, such as National and State Commissions for Transgender Persons and transgender courts. Many transgender people feel these would be essential to strengthen the struggle for transgender dignity, although whether they empower transgender people would depend on the details of the proposed structure. Any decision making process for the support and administration of programmes and policy for our community should have a majority representation by members of our community, and be accessible to all community members.

7. CHILDREN: We recommend that the bill cover the rights of “transgender and gender non conforming” children, since not all children who identify as transgender as adults, will identify that way as children. However, any children who do not conform to gender stereotypes can be targeted for ridicule and the bill should protect all of them.

8. MARRIAGE, INHERITANCE, ADOPTION: Several aspects of the right to life and liberty of transgender people to function equally to all people in society, such as marriage equality, repeal of Sec. 377, and right to inheritance and adoption by trans people are not included in this bill.

9. INTERSEX: Intersex people’s concerns should be incorporated into this bill and they should be included in the scope of the bill.

10. MEDICAL: Mention of SRS should include Hormone replacement therapy, both should be subsidized

Community members felt that while the Bill takes an important step forward, it does not go far enough. Though this Bill is a long pending and the much required measure, the time allotted for consultation and feedback is limited. Ultimately, the point is reiterated -the Government needs to extend the deadline for comments on the Bill, and to carry out effective consultations with the masses of the community instead of a selected set of representatives.

Over the last few years there has been a growing interest in issues of Transgenders and sexual minorities. The recognition and attention is a welcome precondition to addressing the needs of the community. It is important that we as a nation are recognizing that gender and sexuality go
beyond the simple binary of male and female. We do not agree that we need to be ‘rescued’ or ‘rehabilitated’ but would prefer support for more education and livelihood opportunities.

We, the members of the Transgender community in Telangana, Karnataka, Tamil Nadu, Andhra Pradesh and Kerala acknowledge the efforts of the government and judiciary to affirm the rights of Transgender persons. For the past few months we have been analysing the NALSA judgement and the Transgender Rights Bill, 2014 (Bill) as it was introduced in the Rajya Sabha and the form in which it has been introduced in the Lok Sabha. With slight variations they all seem to acknowledge the need to address Transgender rights through a new law and focused effort at the national, state and district level. Our process of consultations have been rigorous within the community, ranging from one to one, group meetings at the districts, state and regional levels. We hope our feedback is taken seriously so that the provisions of the Bill that can support us in exercising our constitutional rights and living a life of dignity.

CONTACT:
For Tamil Nadu: Sankari 9551837719

Smt. Ghazala Meenai,
Joint Secretary (SD),
Room No. 616, ‘A’ Wing,
Shastri Bhawan,
New Delhi – 110 001

Dear Madam,

INSAAF is a student driven legal aid project initiated by National Law University, Delhi, as part of its commitment to social justice and furthering the rule of law. INSAAF is supervised by Dr. Anup Surendranath (Assistant Professor of Law) and is staffed by seven students of the B.A., LL.B (Hons.) course.

We have been closely following the Rights of Transgender Persons Bill since it was tabled in the Rajya Sabha and we believe that the Bill in its present form suffers from several shortcomings. We have explained our concerns in detail in the attached PDF file. We have sent our comments to Ministry and hope to assist the Ministry with the Bill.

We stand in solidarity with members of the transgender community who are seeking a 45 day extension for proper consultation on the Bill. The Bill was uploaded on the Ministry’s website on 26th December, and we feel that it is an incredibly short span of time to come up with constructive comments/suggestions. We humbly request you to extend the deadline for submission of comments so that proper community consultation can take place before the Bill is presented in the Lok Sabha.

Regards,

INSAAF

I.      TRANSGENDER PERSONS AND INTERSEX IDENTITIES

Section 2(f) of the Rights of Transgender Person’s Bill defines a transgender person as a person, whose gender does not match with the gender assigned to that person at birth, secondly, includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), thirdly, gender-queer persons and lastly a number of socio-cultural identities such as —kinnars, hijras, aravanis, jogtas etc.

a)      WHAT ABOUT TRANSMEN/FEMALE TO MALE PERSONS?

Most transgender persons in India are transwomen and therefore most discussions and advocacy revolve around hijras and transwomen. India has a small population of transgender men who face oppression due to the lack of awareness and ignorance about this group of persons.  Additionally, sex reassignment surgery for this group of people is more complicated and doctors lack the medical expertise. Transmen are in fact, a minority within the gender minority.  This makes transition from female to male tougher than male to female. Transgender men have very little/no support system and struggle for recognition or visibility in discussions about transgender persons.  Recently, more organisations have started advocating and raising awareness about transmen.

Exerpts from Open Letter written by Transmen to Ministry of Social Justice and Empowerment requesting for an opprotunity to be included in consultation regarding progressive policies for transgender persons;

“If transpeople are a minority with almost no rights in this country, transmen are a minority within that minority.”

“It is hence, we feel, important to give special considrations and additional support to a minority group.”

 “A lot of these problems our brave Hijra sisters have also faced, But because they were mistakenly seen as boys, they were free to roam around and find other trans people. Because their Hijra mothers made space for them, they were able to leave their homes and live with their trans sisters and mothers. We don’t have that.”

“We are learning to organise ourselves from them (transwomen) and are in the process of doing that.”

“For an umbrella term, to refer to us in all our diveristy, we would like the use of the term trans masculine. We do not identify with PAGFB [Persons Assigned Gender Female at Birth] which is what is being used in reports and meetings here to descibe our identities.”

“We strongly urge you to refer to us by identities that we assume, not ones that are imposed on us without due democratic discussions and consent.”

“We would like to be included in the consultations to formulate profressive policies for transpeople and for trans me, gender non conformists and people who identify as intersex to be given an opportunity to put forward out demand.”

b)      SHOULD INTERSEX PEOPLE BE INCLUDED IN THE BILL?

Intersex conditions include a variety of conditions (sexual anatomy, reproductive organs or chromosome pattern) that lead to atypical development of physical sex characteristics that don’t meet the binary sex sterotypes.  The term Intersex refers to the physical anatomy of an individual while the umbrella term transgender refers to gender identity.  Intersex conditions are also known as differences of sex development (DSD).  Intersex persons can be transgender as there could be a possibility that an intersex child assigned a sex at birth may later identify with different or no sex, that child is then considered to be transgender, however the two cannot be used synonymously.

One in every 2,000 children is born intersex and  India is home to a large population of intersexual persons, most of who are subject to sexual abuse or non-consensual sex assignment surgery and forced into sex work or begging while others earn a living through performing.  Intersex persons are subject to similar disadvantages and face the same challenges as the transgender persons. Like some transgender persons, an intersex person struggles to fit into the existing gender binary model. It is for this reason that they are subject to ostracism and interphobia.

Objects and reasons of the Bill include ensuring protection of transgender persons/ person who have difficulty with fitting into existing gender roles/ stereotypes from abuse, social, economic and political injustice.  The Bill covers transgender persons; transsexual persons and gender queer people under Section 2(f). It only covers persons who, by choice, have changed their gender (Sex Reassignment Surgery), but does not include those who have been assigned a sex at birth. The definition of a transgender makes no mention of people who are born with atypical genitals. It recognizes persons who could be any transgender, transsexual, gender queer or identify themselves as male or female all of which an intersex person can feel about their gender as well.

The only category of persons, which could explicitly include intersex persons, is hijras. Ordinarily, hijras, are female identified males, some of whom are transgendered, transsexual or intersexual.  National Legal Services Authority v. UOI  recognises transgenders/hijras (which includes intersex) as the third gender. The decription of a hijra given in this judgment is; a hijra is a biological male who rejects his masculine identity to identify as any other or no gender. They are usually MTFs. Therefore, even though the judgment recognises their rights, the Bill makes no clear mention of an intersex person denying them multiple rights specifically the right to life and dignity. Following the NALSA judgment, the State Policy for Transgenders in Kerala, 2015, adopts an inclusive approach to explicitly include intersex persons within the definition of transgender.

In addition to the various challenges the intersex community faces (which are similar to those of the transgender community), Intersex children face the problem of undergoing Sex Assignment Surgery (SAS) without their consent. The procedure assigns a sex to the person by altering and removing one set of reproductive organs in order to “normalize” ambiguous genitalia. Termed as “intersex genital mutilation”, children are not given the choice or opportunity to give their consent to the surgery..

The problem with this procedure is that, it is a cosmetic procedure, aimed at altering the external features of an intersex person, in order to give them the appearance of a single sex. Children who undergo this surgery are forced to sit for at least three of five subsequent procedures over their lifetime.  However, the surgery leaves patients with a number of physical and psychological problems such as the inability to experience any form of sexual sensation, gender dysphoria, sense of betrayal, assault etc.    SAS without consent is also human rights issue as it violates the rights of a child under the Convention on the Rights of the Child  and the Principle 18 of the Yogyakarta Principles.  Studies also show that parents tend to assign the male gender to their intersex child while some even force their female child to undergo a sex change.  The Supreme Court in the NALSA Judgment categorically mentioned that insistence on SRS is immoral and illegal.

Malta recently adopted the Gender Identity, Gender Expression and Sex Characteristics Act, 2015. This is an anti-discrimination law intended to protect and ease the process of gender identity for transgender, gender queer and intersex persons.  The most significant feature of this Act is that it bans any non-vital gender assignment surgery on children before they are capable of giving consent.  This law guarantees intersex children their right to bodily integrity and self-determination.

Physical, psychological and legal consequences of Intersex Surgery, suggests that it should included under the Bill and the rights of intersex persons should be protected in addition to those of transgender persons.

Rights that can be protected: in addition to the ones given under the Bill – prohibit unnecessary/ non-vital surgery and provide adequate counseling to families with intersex children.

c)      WHAT SHOULD BE PRACTICAL PROCEDURE FOR STATE RECOGNITION OF GENDER IDENTITY THAT IS INCONSISTENT WITH AN INDIVIDUAL’S ASSIGNED SEX?

In India, a person can be legally recognized as a transgender person, as a man, a woman or a separate gender/third gender.  The UNDP report by Arvind Narrain and Venkatesan Chakrapani suggests three basic models of implementation, which are:

Certification Model: In this model, an individual wishing to alter his/her gender submits the necessary documents and a gender certification panel set up by the government will issue a certificate after a screening process. This is operational in the states such as Tamil Nadu in the form of Aravanis Welfare Board. The Ministry of Social Justice and Empowerment in its report in 2014 also recommended that other States adopt this model and make changes according to their requirements.

A transgender identity card is issued to a person after clearance from the Screening Committee headed by the District Magistrate, Deputy Durector, Social Welfare Officer, psychologist/psychiatrist, representative of the transgender community and any other person of official that the Governemtn deems necessary/appropriate.  After screening, this persons birth certificate etc. will be changed.

In this model, the criterion or test for qualifying a person as a transgender will depend on a fact to fact basis and the fact that the person is a part of a particular transgender group will act only as a corroborative evidence.  It adopts a more bureaucratic procedure.

However, the problem with this system is that it may not be in full conformity with the self- identification model mandated by the Supreme Court in the NALSA Judgment. Instead of an affidavit declaring ones gender a person must pass the test of providing relevant evidence to prove. The State may interpret such procedures differently and no two states may follow the same procedure.

Furthermore, this system may lead to gender policing and might end up complicating the entire process making it cumbersome, possibly corrupt and even arbitrary. Even though, it is understandable to require some kind of authorization to change one’s gender identity, it should be ensured that the process is as hassle free and un-bureaucratic as possible. Further, it is important mechanisms for proper checks and balances to ensure that the process remains as free and fair as possible. A more representative/ empathetic screening committee might help.

Medical Model: Which requires a transgender person to be issued a  certificate by doctors diasgnosing him/her with gender dysphoria/ clearing him/her for SRS before he/she can be legally identified as a transgender. The WPATH (World Professional Association for Transgender Health), has a standardised procedure often requiring the consent of the person undergoing the SRS. It has the tendency of pathologising bodies and treating gender fluidity as a medical concern rather than a social one. Although this model is suitable for MtF or FtM transitions and is not suited for other transgenders who do not identify themselves within this gender binary.

Self-Identification Model: This model doesn’t require any medical intervention, procedure or certification. It is followed in Argentina, under the Gender Identity Law, 2012 where there is no need for medical diasgnosis of Gender Dysphoria.

The Supreme Court in the NALSA judgment, hints at the self- identification model when it writes “Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure.” However, the mechanisms advocated in the report of the Ministry seem to be based on the certificaiton model. The certifying authority model although not inherently flawed, unfortunately depends a lot on  on how it is carried forward and what processes are adopted for identification.  Therefore, a procedure which meets the certifiction model and the self identifiation medal somewhere in the middle can be adopted in ordeto reconcile these two diverging opinions.

In this context, is there a need for medical diagnosis of gender dysphoria or should it be left to self-identification? The Supreme Court in the NALSA said gender identity as already indicated forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender. Prior to the NALSA judgment, Sex Reassignment Surgery was required to be done, post the surgery a  certificate of sex change was required to be issued by the concerned hospital. Now, SRS is no longer necessary, medical certificates based on SRS are also unecesssary, but a psychological assessment report may be required.

d)      CAN/SHOULD CHILDREN BE CATEGORIZED AS TRANSGENDER CHILDREN OR SHOULD THEY BE REFERRED TO AS GENDER NONCONFORMING?

The term “gender nonconforming” is used synonymously with “gender variant”. It refers to a person who does not fit into existing gender stereotypes (masculine or feminine), which based on sex, are assigned at birth.  Referring to external expression and behavior, the term is broader than transgender. The difference between a gender variant and a transgender person is knowledge/being conscious of identifying with a gender different from the one assigned at birth. All gender variant children may not necessarily grow up to identify as transgender. It is only after a certain age, that students/children begin to understand their behaviour/consciously identify with a different gender. It is for this reason that the term gender variant is used for children and transgender is used for adults or youth.  A more apt term in Section 5 could be “gender non conforming children”/ “gender variant children” and “transgendered youth” as opposed “transgender children”.

II.     PROTECTION AGAINST DISCRIMINATION

BY PRIVATE INDIVIDUALS
Horizontal Application of fundamental rights determines the relationship between private individuals and implies that one can claim redressal for wrongs done to them by private individuals.  In India, most fundamental right violations can only be claimed against the ‘State’ as defined in Article 12 of the Constitution of India. However, the most pervasive forms of discrimination in Indian society have been horizontal, and involve excluding a section of society from the economic and social mainstream through boycotts and denial of access to public spaces.

If we read the Rights of Transgender Persons Act, 2014, we can observe that it creates the scope for horizontal application of fundamental rights guaranteed under Article 15 of the Constitution of India.

Section 2(d) defines ‘establishment’ and it is clear that it includes non statutory bodies and institutions such as a company, firm, cooperative, association, trust, agency, organization, industry, supplier of goods or services, factory etc. Section 2(n) which defines a ‘public building’ must be read in consonance with this. It explicitly mentions that it includes any building used and accessed by the public at large, irrespective of ownership. This Act defines ‘discrimination’ through section 2(c) and now transgender persons can bring a case against private entities for discrimination under the Act as well as violation of fundamental rights mentioned in part III of the Constitution. This is necessary in this day and age when transmen and transwomen are being denied entry into malls and are being deprived of educational opportunities.

III.    THE WASHROOM DEBATE:  SEPARATE BUT EQUAL?

It is common knowledge that trans people face harassment when they make use of public facilities assigned for men and women. Their access to such public spaces is limited by their legitimate and understandable fear of persecution and harassment. A single experience of denied access, verbal harassment, or physical assault is certainly a problem in its own right. These experiences, however, can have far-reaching effects that impact people’s lives. Trans persons are constantly faced with harmful consequences in their daily lives when it comes to their access to washrooms. Their school life may be bridled with discomfort and anxiety and there may be marginalization be peers and further, segregation at places of employment. Their participation in public life is hindered as they may refrain from attending events where they will be confronted with the dilemma of choosing a washroom or rather, have a washroom chosen for them. It has been well documented that constant curbing going to the washroom may cause Urinary tract infections; weaken the bladder, kidney infections and dehydration.

When the Court mandates creation of washroom facilities for the third gender, we must ask whether trans people have access to all washrooms, or if they are only ‘allowed’ to make use of ‘their’ washroom.

If a trans person identifies as a woman, and is thus, a transwoman, restricting her access to facilities available to ‘women’ strikes down her right to self-determination and autonomy. Despite her choosing and expressing desire to belong to a certain gender, she is asked to perform the role of the third gender. It encourages the notion that she is not a ‘real’ woman and is and will always be a trans person, simply trying to mimic a woman’s lived experiences. If access of trans people is limited to their assigned washrooms it rings a bell to the “separate but equal” argument of Brown v. Board of Education.

Limiting their access to washrooms of the gender with which they identify, is stripping them of their identity and reinforcing notions of how trans people are violent and segregation is beneficial for them. This is a paternalistic viewpoint, which is almost condescending when we explore reasons behind the rigid entry into the washrooms.

One reason for denying transwoman access to female washrooms is that women feel unsafe or uncomfortable due to the visible masculine presence and need to be protected from the same. We have situations where their mere presence is construed to be an act of harassment. The discomfort of ‘real’ women is given weight when in reality, statistics indicate that trans people are actually at a much greater risk of harassment at the hands of the other genders. Trans women are perceived to be harassers by virtue of their appearance and this just feeds into the larger narrative of how they are aggressive, loud and invasive with no regard to privacy or security of others.

However, many fears against trans women inclusion are based on misinformation and unfounded fears due to pervasive stereotypes that depict them unfavorably. This will just become another means to further trans oppression, by confining them to a separate space and preventing socialization and inclusion.  It singles out trans people, even when they want to be perceived as a gender from the current binary and not the third gender assigned to them by the Court.

For them using a washroom, something so integral to daily life, in accordance with the gender they identify with, could be a way of reclaiming their identity and asserting it. We don’t want situations wherein a transwoman is denied entry to a female washroom and is told to go where she ‘belongs’.  Allotting them a third gender washroom is simply opening the doors for marginalization and taking away their agency to determine the washroom they would like to use. The argument that trans people themselves may feel uncomfortable using washrooms of the gender binary is extremely patronizing and resonates the arguments made in favour of racial segregation in terms of access to public fountains, schools and buses.

Just as a trans person while filling up an application form, has the right of choice to be any of the three genders (male / female/ the third gender), they should also have the right to use facilities for the gender they identify with.

I would like to end with a quote by the author Amin Maalouf, “For it is often the way we look at people that imprisons them… And it is also the way we look at them that can set them free.”

IV.     RESERVATIONS FOR THE TRANSGENDER COMMUNITY:

POSSIBILITIES AND PITFALLS

In NALSA v. Union of India, the Supreme Court directed the Central and the State Governments to take steps to treat transgender persons as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. About a month after the NALSA decision, the National Commission for Backward Classes (NCBC) recommended the inclusion of transgender persons in the central list of the OBCs.  The Rights of Transgender Persons Bill also provides for two percent reservation in educational institutions  and public employment .

In India, affirmative action as a tool of group representation has mainly been associated with caste in both judicial discourse and public imagination. By recognising that transgender persons constitute a distinct class of individuals who are discriminated against based on their gender identity, the Court has expanded the scope of equality jurisprudence in India.

Over the years, Supreme Court jurisprudence on reservations has moved away from an individualistic colour-blind model to a more group oriented conception of equality. In Indira Sawhney, the Court held that caste could be used as a criteria for identifying backward groups because caste is nothing but a socially and occupationally homogenous class. However, the Court cautioned that caste cannot be the sole criteria for granting reservation under the OBC category and carved out the creamy layer exception. It is important to note that the Court in Indira Sawhney prohibited caste from being the sole criteria but it did not provide that caste must be a factor in all cases. Therefore, what is relevant isn’t caste but the existence of a distinct class of individuals who suffer from backwardness.

For the purpose of providing reservation in public employment under Article 16(4), the state must prove lack of adequate representation in addition to backwardness. According to the 2011 census, there are 4.9 lakh transgender persons in India.  However, there exists virtually no data about the representation of transgender persons in government employment. It can be argued that the lack of data is in itself indicative of the kind of callous treatment meted out to the community. However, it is desirable for the state to carry out an empirical assessment of the number of transgender persons in public employment. While most of us intuitively know that transgender persons are not adequately represented in government jobs, having empirical evidence of the same would prevent legal challenges in future.

a)      WHO IS A TRANSGENDER PERSON IN THE EYES OF THE LAW?

There exists significant confusion about who is a transgender person as per the law.  Both the NALSA judgment and the Bill emphatically provide that Sex Reassignment Surgery (SRS) or Hormone Replacement Therapy (HRT) cannot be prerequisites for laying claim to the transgender identity. However, it is unclear whether mere self-identification is enough to qualify as a member of the transgender community, or whether there should be a screening process. The UNDP report by Arvind Narrain and Venkatesan Chakrapani suggests three basic models of implementation: the certification model, the medical model and the self-identification model.  The certification model is currently operational in Tamil Nadu in the form of Aravanis Welfare Board. There exist serious problems with all three approaches that must be carefully considered. Unlike caste identity which can be objectively verified because it depends on a person’s birth, gender identity is internal, fluid and highly subjective. If benefits of affirmative action were to be conferred exclusively based on self-identification, it could become impractical and susceptible to misuse. On the other hand, any kind of bureaucratic gatekeeping would run the risk of policing of marginalized identities. Therefore, the procedure by which an individual is to be legally recognized as a member of the transgender community is of utmost importance, and requires further deliberation and consultation.

b)      WHAT ABOUT TRANSGENDER PERSONS WHO BELONG TO SC/ST CATEGORIES?

One of the reasons provided by the government for resisting the implementation of the NALSA decision is that it would be inappropriate to include transgender persons in the OBC category because some of them belong to Scheduled Castes and Scheduled Tribes.  For these individuals, there seems to exist an ostensible clash between their gender identity and caste identity. Even within the transgender community, the opinion is divided on how to resolve this dilemma. Some suggest that members who grew up SC/ST should continue seeking reservations under that category, while others can be classified as OBC. However, there are Dalit transgender activists who oppose such a move because they fear that if transgender Dalits remain categorized as SCs, they will have to compete against those Dalits who didn’t struggle with their gender or their families.  A novel solution has been offered in the form of horizontal reservation across categories. In November 2014, a group of transwomen petitioned the Madras High Court demanding a 3 percent reservation for transgender people under a new category, similar to reservations for people with disabilities. However, based on our past experience with disability reservations, there exists a legitimate concern that if transgender reservations were not anchored by an OBC listing, they could become vulnerable to legal challenges and narrow interpretation.

c)      WHETHER TRANSWOMEN ARE ELIGIBLE FOR POSTS RESERVED FOR WOMEN?

Another highly contentious issue is whether reservations for women should be restricted to persons assigned female at birth or should they be extended to individuals who were assigned male at birth but now identify as women. There are persuasive arguments from both sides. On one hand, it is contended that privilege is a matter of societal perception rather than internal identity. Therefore, transwomen who have had access to better education and nutrition during their formative years should not be allowed to contest for seats reserved for women. On the other hand, it is argued that the discrimination and violence that transwomen suffer on account of transphobia offsets any preferential treatment that may have received early in their life and makes them far more disadvantaged than cis women. However, the debate here isn’t whether transwomen should be granted reservations. The real question is whether the reservations for transwomen should come out of cis women’s share or if they should be over and above reservations meant for persons assigned female at birth. It is also unclear whether transmen would qualify for women’s reservations.

V.      EQUALITY AND NON-DISCRIMINATION

The Rights of Transgender Persons Bill, 2014 employs the phrase ‘on an equal basis with others’ multiple times. It is important to discern the meaning of this phrase and to understand what it entails.

Article 14 of the Constitution of India provides:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

Traditionally, in the Indian judiciary, equality challenges have been decided using the Classification Test where what is to be seen is whether the law in question creates an intelligible classification and whether there exists a rational nexus between such classification and the object of the legislation. Both these parts of the test must be satisfied in order for a legislation to survive this scrutiny.

As opposed to this, another conception was introduced in India in the case of E P Royappa v State of Tamil Nadu . All that this new test of Non Arbitrariness requires to be seen is whether there is any element of arbitrariness in the action in question. Arbitrariness can be brought about through bias, non-application of mind, non-consideration of relevant factors or consideration of irrelevant factors. This test recognized the problem inherent in the Nexus test including the fact that it does not mandate an inquiry into the quality of the nexus or the strength of it.

The Arbitrariness Test is materially different from the Classification (or Nexus) Test because it is does not require a comparator for the object of scrutiny and merely requires that the object of scrutiny in and of itself must not have been subject to state action in an arbitrary manner through consideration of irrelevant factors or non-consideration of relevant factors. The advantage in this is that the Arbitrariness Test has greater scope for Affirmative Action and pays regard to the treatment of a particular group regardless of whether a comparator group can be found and how the comparator group is treated.

The phrase ‘on an equal basis with others’ in the Rights of Transgender Persons Bill, 2014,  carries with itself the idea that the ‘other’ will always be required as a comparator to measure equality and the special needs of the group, in and of the group itself, shall not be a factor for measuring equality.

It may be argued that the is a fairly commonly used phrase in international conventions as well as domestic legislation, but it is important to note that wherever the phrase has been employed, it has been done so with care to not exclude situations of affirmative action. For example, in s. 3 (equality and nondiscrimination) of the Rights of Persons with Disabilities Bill, 2014, while subsection 1 employs the phrase ‘on an equal basis as others’, subsection 2 discusses special measures to be taken by appropriate governments. No such caution seems to have been taken with respect to the Transgender Persons Bill.

As a matter of fact, the Convention on Rights of Persons with Disabilities also includes “equal basis as others” However, even the convention takes the precaution of including references to positive discrimination.

Given that transgender persons are a group of people for whom finding a comparator would be difficult and they are also a marginalized community that will require affirmative action, it makes little sense to exclude that from the legislation.

VI.     EDUCATIONAL ENTITLEMENTS

a)      NARROW DEFINITION OF INCLUSIVE EDUCATION

The Rights of Transgender Persons Bill defines ‘inclusive education’ as “means a system of education wherein all students learn together, most or all of the time” .  S.13 puts a duty on the appropriate Government and local authorities to “ensure that that all educational institutions funded or recognized by them, provide inclusive education, and inter alia, —(i) admit transgender students without discrimination and provide them education
as also opportunities for sports, recreation and leisure activities on an equal basis with 10 other;

(ii) provide reasonable accommodation of the individual’s requirements;

(iii) provide necessary support in environments that maximize academic and social development, consistent with the goal of full inclusion;

(iv) monitor participation, progress in terms of attainment levels, and completion of education, in respect of every transgender student.”

The definition of “inclusive education” is very narrow and simply focuses on learning together. A more encompassing definition would be something like “Inclusive education means that all students attend and are welcomed by schools in age-appropriate, regular classes and are supported to learn, contribute and participate in all aspects of the life of the school”. UNESCO has also given a more expansive and better-suited definition which provides that “(inclusive education) involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children”.  If the Act is to help meaningfully provide for inclusive education, it must encourage schools to not only to make do with a system where students learn together, but to create a curriculum that creates an atmosphere of inclusivity by changing content and modifying approaches and structures which are more gender-neutral. For example, content on gender sensitization and information about potential procedures such as sexual reassignment surgery and hormone therapy, as well as the possible implications/effects of both.

The definition provides that “students learn together most or all of the time”. The definition gives institutions a lot of leeway in adopting inclusive education methods only when it is convenient for the institution to do so. This can be counter-productive to achieving the objectives of the Act.

b)      LACK OF GUIDELINES ON HOW TO ACHIEVE REASONABLE ACCOMMODATION

The Act defines reasonable accommodation as “an accommodation needed to ensure transgender persons the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.  Section 13(ii) provides that the educational institutions have to “provide reasonable accommodation of the individual’s requirements”.

The Act provides no guidelines on how reasonable accommodation of the individual requirements are to be achieved and which aspects this must cover. There is a requirement for the Government, through rules or otherwise, to have guidelines for educational institutions with respect to sex-segregated bathrooms, how gender neutrality is to be achieved in dress codes, and sports. The Government can refer to several Guidelines prevalent in other countries like the NYC Education Department Transgender Student Guidelines, or District of Colombia Public Schools- Transgender and Gender Non-Conforming Policy Guidelines. Detailed guidelines can be implemented by a body like CBSE or by the Ministry of Education in India for all schools to incorporate in order to achieve reasonable accommodation and the Act/Rules should provide for a provision under which such guidelines have to be implemented. Guidelines incorporate topics like Privacy, Gender Pronouns, Sports and Physical Education, Restroom and Locker Room Accessibility, Gender Segregation in other Areas, Dress Codes, Resource Material etc.

VII.    CUSTODIAL VIOLENCE, POLICE TORTURE AND NEED FOR ACCOUNTABILITY

Section 377 of the Indian Penal Code which criminalizes same-sex relations among consenting adults is used as an instrument and justification for discrimination, police harassment, extortion and abuse against transgender communities, thus cementing their vulnerable and marginalized status.

As per Human Rights Watch, Delhi, the population census of 2011 counted transgender persons as a separate category for the first time in India and recorded an official count of nearly half a million. Some activists from the community are of the opinion that the actual numbers could be higher.  In April 2014, the Supreme Court ruled that transgender persons should be recognized as a third gender and highlighted the stigma faced by the community. This landmark judgement, however, sees close to no practical implementation on the ground as attacks against transgender people continue at an alarming rate.

The nongovernmental organization Telangana Hijra Transgender Samiti, based in the southern city of Hyderabad, reported 40 attacks on transgender people in the last six months of 2014.  According to the rights group, in several cases, the police refused to even register complaints.  The transgender community remains vulnerable to harassment and violence especially by the police encouraged only by the ridicule and apathy of the Indian society.

In an incident on January 20, 2015, the police detained a young hijra – a distinct transgender and intersex community – for questioning about the murder of another hijra. She was detained at the police station for four hours without there being a female police official present and was allegedly stripped naked and suffered verbal as well as physical abuse.  In another incident, on January 22, 2015, police picked up a transgender woman in Chennai for interrogation purposes and at the station, allegedly suspended her by her legs with a rope and penetrative her post-operative genitals with a baton. She was left bleeding overnight and was released only in the morning.  Incidents involving police brutality against transgender persons are innumerable and many accounts have been listed in the PUCL, Karnataka report (2003) titled ‘Human Rights Violations against the Transgender Community’.

Section 10(2)(a) of the Rights of Transgender Persons Bill, 2014 states that the police can be authorized to provide safe custody to the transgenders who are victims of abuse, violence or exploitation. This is problematic because historically, police conduct towards the community has veered towards stigmatization and brutalization.  An example of this is an incident which took place in June 2014 where eight hijras were arrested in Ajmer for assaulting a policeman. Seven alleged that there were beaten by the police while in custody and one said that she had been taken into a separate room and raped by three policemen. A bribe was demanded of her by the policeman for not filing charges against her.

As the transgender community is not a recipient of systematic and structural legal assistance, they are often forced to negotiate terms with the police in an effort to lodge complaints or assert their rights. This process leaves them at the mercy of a police structure which exploits their vulnerability for unprotected sex, money, and other forms of violence specific to transgender persons, especially transgender women, such as stripping, mutilation of genitals, forced redressing in clothes to fit assigned gender, rape, insertion of objects, etc.  Furthermore, transgender persons are unable to report sexual assault without the looming shadow of fear as sodomitic acts – as per Sec. 377 – leaves them open to criminal liability.  When transgender people are denied their basic rights and the opportunity to secure education, employment and health benefits, they are left with no option but to beg or engage in sex work, thus perpetuating the vicious cycle which exposes them to further brutality at the hands of law enforcement authorities.

It is recommended that such gender-specific instances of sexual and physical violence intended to degrade or humiliate transgender persons  ought to be treated as specific circumstances of aggravated assault and should be assigned specific punishments not left to the discretion of the judiciary as power dynamics could – and would most probably – work against the already oppressed community.

Section 10(4) discusses the duty of a police officer who receives a complaint regarding the abuse or exploitation of a transgender.  However, this clause fails to include substantial methods to ensure that the filing of an FIR is not refused due to the gender identity of the victim. Such discriminatory behaviour should be made legally punishable by allowing the victim to approach a superior police officer or officers at other police stations who are then bound to conduct an enquiry.  Any information that ought to be disseminated by the police under this clause should be verified or confirmed by a higher authority/superior officer to check situations where the police officer is principally involved in the discrimination. Alternatively, NGOs and parallel organizations can be employed to aid the police in disseminating such information. Furthermore, the rules which apply to the arrest and detention of women at night should apply to transgender women as well.

Police violence cannot be observed in isolation. It is the offspring of widespread social prejudice against transgender persons in India, finding its place in the behaviour of family members, medical authorities, government employers, etc. It must be made mandatory for police personnel to undergo sensitization and awareness programmes about handling cases involving transgenders under Section 10(6) to ensure that the survivor does not undergo further trauma and judgement as a result of which they will be deterred from pursuing their case further.  Avoiding a superficial discourse on the subject, police personnel should receive substantial theoretical and practical training including basic tenets like respect for the chosen gender of a transgender or intersex person, not referring to them by their assigned gender, etc.

Through a structured system for tackling police harassment and brutality against the transgender community, India can prevent police action that constitutes ‘state-sponsored discrimination’.

VIII.   DATABASE CREATION AND PRIVACY CONCERN

With the privacy debate gaining momentum, database creation is engulfed in controversy mainly with respect to issues of actual security of the database and the legal and ethical implications of what can/should be stored on the databases in the first place. There are no consistent and uniform privacy regulations in place in India.

United States has a comprehensive privacy law which was based on the Fair Information Practice developed in the 1970s. The basic principles of data protection were to redefine the concept of personal privacy:

•       There must be no personal-data record-keeping systems whose very existence is secret.

•       There must be a way for an individual, to find out what information is in a record and how it is used.

•       There must be a way for an individual to prevent information obtained for one purpose from being used or made available for other purposes without his consent.

•       There must be a way for an individual to correct or amend a record of identifiable information.

•       Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take reasonable precautions to prevent misuse of the data.

•       Data should be deleted when it is no longer needed for the stated purpose

PROS AND CONS OF CREATING A DATABASE

The transgender Bill comes with its own set of problems– it nowhere talks about identification and survey of Transgender Persons. This becomes of paramount importance as such identification must begin at the preliminary stages and will involve  creating a reaffirming environment for gender expression and use of inclusive, non-gender-specific language. The State must adopt a model that allows for minimal violation of privacy and gives an individual the autonomy to exercise their freedom of expression. The self identification model while may be best suited, it can also be used to exploit and deny them rights. The government must actively participate and ensure that confidential information is not released unless it is authorized under any law.

The right to privacy must include the right to keep one’s gender private. As this bill seeks to accord rights to transgender persons, we must find a middle path between protection of this right and creation of a database.

There is no national database to track violence against transgender people. And while this is an urgent need to give law enforcement the resources to track and prevent such incidents, there is also paramount concerns about the privacy and safety concerns of these individuals. Transgender persons have faced discrimination and harassment at the hands of these very law enforcement agencies and an open database may only perpetuate increase in violence.

We require government agencies, social workers, counselors, medical professionals, and non-profit organizations who provide direct services to transgender people to reexamine the ways they are engaging with the transgender community.

Orinam note: While we greatly appreciate the intent and comprehensive nature of this letter, we would like to point out some ambiguities in the wording “It only covers persons who, by choice, have changed their gender (Sex Reassignment Surgery), but does not include those who have been assigned a sex at birth.” This wording is misleading because:
(i) Most people are assigned a sex at birth.
(ii) The Bill does cover people who have not had SRS.
(iii) SRS is not synonymous with changing gender. We need to distinguish between social gender change and medical procedures. NALSA and the MSJE bill are clear that surgery and endocrine therapy are not (and should not be) criteria for legally determining transgender identity.

The Ministry of Social Justice and Empowerment (MSJE), Government of India, had sought comments on the Rights of Transgender Persons Bill, 2015 [click here for local copy from LiveLaw.in] from  Comments/suggestions were to be sent latest by 14th January, 2016 (extended from 4 January) to Smt Ghazala Meenai, Joint Secretary (SD).
Here are letters from groups and collectives that have shared their responses in the public domain.

TRANS* AND INTERSEX COMMUNITY-LED GROUPS

Sampoorna: Network of and for trans* and intersex Indians:  [click here]

South India Transgender Samithi: forum representing trans* people from Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, and Telangana following a consultation in Bengaluru [click here]

Telangana Hijra Intersex Transgender Samiti:  recommendations based on consultations in Hyderabad and the South India consultation in Bengaluru [click here]

LGBTIQ COMMUNITY-LED GROUPS

Queer Campus Delhi: Youth-led student support collective striving towards creating safe spaces for LGBTIAQ students in universities and colleges across Delhi. [click here for PDF]

LABIA: queer feminist collective in Mumbai [click here]

LesBiT: collective of lesbians, bi women and transmen in Bengaluru [click here]

Nirangal: Chennai-based trans-and-ally led NGO working towards to advance justice and rights for LGBT and sex worker communities in Tamil Nadu [click here]

Sappho for Equality: Kolkata-based activist forum fighting for the rights of lesbian, bisexual women and transmen since 1999 [click here]

OTHER ALLY GROUPS

Equals Centre for Promotion of Social Justice: disability rights organisation based in Chennai [click here]

Insaaf: student-driven legal aid project initiated by National Law University, Delhi [click here]

Sangama, Aneka and ReachLaw: Recommendations from consultation of 33 organisations in southern India, facilitated by these Bengaluru-based NGOs and law firm [click here for PDF]

Thanks to all the groups listed above for sharing their recommendations to the MSJE. If you would like to add to this collection, please write to orinamwebber_at_ gmail.com

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

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

Dear Madam,

Sappho for Equality (http://www.sapphokolkata.in/) is a Kolkata based activist forum fighting for the rights of lesbian, bisexual women and transmen since 1999.

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 Transgender Bill 2015 (MSJE) by Sappho for Equality

CHAPTER I: PRELIMINARY

 Definitions

1. Violence: The bill defines ‘violence’ as ‘the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation’ – this definition of violence 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.

CHAPTER II: TRANSGENDER IDENTITY

Identification of Transgender Persons

1. Identity: The definition of a Transgender person mentions ‘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.’ – what gender category would be mentioned in the certificate for those transgender persons who identify as ‘man’ or ‘woman’? Incase a transgender person’s gender is mentioned as male or female in his/her id documents and at the same time he/she have a transgender certificate where his/her gender is mentioned as transgender – will this not create practical problems for the concerned person? How these issues will be addressed?
2. Certification: In the certification process for the transgender people the Bill mentions: ‘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.’ – it has to be mandatory to include a transman, a transwoman, a hijra person and a kothi person in this committee.

CHAPTER III: RIGHTS AND ENTITLEMENTS

Right to live in Community

1. Community support services: The sub-sections (2a and b) of clause (9) mentions: ‘The appropriate Government and local authorities shall take appropriate measures to ensure full enjoyment of the right …— (a) ensuring that Transgender Persons have access to a range of in-house, residential and other community support services, including assistance necessary to support living and inclusion with community; and (b) making community services and facilities for the general population available on an equal basis to Transgender Persons.’ – it will be helpful if the Bill specifically list the community support services.

Protection from abuse, violence and Exploitation

1. Awareness raising: The sub-sec (3) of clause (12) mentions: ‘The appropriate Government shall take all appropriate measures to prevent abuse, violence and exploitation against Transgender Persons by, inter alia providing information and raising awareness on: (a) taking cognizance of incidents of abuse, violence and exploitation; (b) the legal remedies available against such incidents; (c) steps to be taken for avoiding such incidents; (d) procedure for reporting such incidents; and (e) steps required for the rescue, protection and rehabilitation of Transgender Persons who have been victims of such incidents’ – this list should also include help line for transgender persons which would be handled by trained trans-sensitive counselors.

CHAPTER IV: EDUCATION

Duty of Educational Institutions to provide Inclusive Education to Transgender Students

1. Anti-discrimination cell – The sub-section (vi) of clause 15 mentions: ‘All the educational institutions/universities should establish an anti-discrimination cell to monitor any form of discrimination against the transgender community’ – it has to be mandatory to include a transgender community member/s and/or person having work experience with transgender community/groups/organizations in this cell.

CHAPTER V: SKILL DEVELOPMENT & EMPLOYMENT

Non Discrimination in Employment

1. Non Discrimination Workplaces – The sub-section (1) of clause (18) mentions: ‘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’ – it has to be mandatory that all establishments should have anti-discrimination policies based on gender-sexual identities.

CHAPTER VII: DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT

Awareness Raising

1. Awareness raising obligation – The sub-section (3) of clause 25 mentions: ‘Without prejudice to the general awareness raising obligation in sub-section (1) of section 25, such programmes, campaigns and workshops shall inter-alia,— (a) Promote values of inclusion, tolerance, empathy and respected for diversity; (b) advance recognition of the skills, merits and abilities of transgender persons and of their contributions to the workforce, labour market and professional fee; (c) Foster respect for the decisions made by Transgender Persons on all matters related to family life, relationships, bearing and raising children; (d) Provide orientation and sensitization at the school, college, university and professional training level on the human condition of transgenderism and the rights of Transgender Persons; and (e) Provide orientation and sensitization on transgenderism and rights of Transgender Persons to employers, administrators and co-workers’ – this list should include mandatory gender and sexuality curriculum from school level.

The Bill is completely silent on the below points, therefore we recommend that these points should be included –

1. It has to be mandatory for all establishments, institutions, registered organizations, public buildings etc to have trans-friendly infrastructure e.g. unisex toilets, hospital wards, hostels, security checks, queue etc.
2. It has to be mandatory to provide free legal aid to transgender persons.
3. The overall development of Transgender persons is not possible in presence of section 377 of IPC. Therefore, for effective implementation of this Bill/Act section 377 has to be repealed.
4. Discussion on situation of intersex persons should be brought forth and relevant provisions should be laid down.

Thanking you.

Yours Sincerely,

Members of Sappho for Equality

Smt. Ghazala Meenai,
Joint Secretary (SD),
Room No. 616, ‘A’ Wing,
Shastri Bhawan,
New Delhi – 110 001

Dear Ma’am,

 Subject: Recommendations on Rights of Transgender Persons Bill, 2015 released by the Ministry of Social Justice & Empowerment

We, the Telangana Hijra Intersex Transgender Samiti held a consultation on the Government of India’s Rights of Transgender Persons Bill, 2015 on the 30th of December. The Consultation brought together community members from across Telangana and Andhra Pradesh at various communes of hijra and transgender people in Hyderabad to discuss the new bill which has been made available on the Ministry of Social Justice and Empowerment’s website. We subsequently participated in a consultation on this held by the South India Transgender Samithi of which we are a constituent, which brought together community members from across South India at the Indian Social Institute in Bangalore, on the 30th of December.

The unanimous position arising from this consultation was that the deadline of 4th January, 2016 given by the government to submit comments on the Bill was incredibly short and unfeasible. For example we were only able to properly discuss the bill face-to-face with community members from Hyderabad for their input, and we had only input by phone from some members in the districts. It was agreed by all present that the deadline needs to extend by at least by 45 days with the end date for recommendations being 15^th February 2016. During this period the government of India must take the initiative to consult all community members. This is feasible given the small size of our community. Without such effective consultations and time period given the entire exercise will prove to be a failed one that disregards the varied deeply personal and political struggles of the transgender and intersex communities for self identification and dignity.

In terms of substantively discussing the Bill, the following issues were flagged as seriously worrying:

1. IDENTITY: The entire struggle of transgender and intersex people is for us to be able to live in our chosen identities. However, the bill does not provide a mechanism for self identification – instead the autonomy of the individual is severely diluted through the proposed certification process of a complex two-tiered mechanism which risks trapping transgender and intersex individuals in a bureaucratic apparatus to obtain basic recognition of their identity. It runs contrary to the Ministry of Social Justice and Empowerment’s very own report of 2013 on Transgender people and the principle of self-identification mandated in the NALSA vs. UOI judgment of the Supreme court, which proposed a minimum of procedural barriers for asserting one’s identity. We likewise propose an attestation process through a notarized affidavit to be the only relevant document for change of name and gender on all forms of ID with no insistence on Sexual Reassignment Surgery (SRS), Hormone Replacement Therapy (HRT), psychiatric certificates etc. Many of us in the transgender and intersex community have struggled with the deeply unscientific understanding of psychologists, psychiatrists, magistrates, district collectors, social workers, etc. who pathologize the transgender and intersex community and we are not comfortable with them having authority over declaring people as transgender or intersex. Above all, it is both paramount and the inviolable duty of the state under the NALSA vs. UOI mandate of the Supreme court to preserve the autonomy and the sole prerogative of the transgender or intersex individual to decide their chosen gender. Once a transgender or intersex person has filed the notarized affidavit attested by a district magistrate, all government and private bodies that produce identifying documents and certificates, including ration cards, driving licenses, gas connections, private/public educational certificates, bank accounts passports, PAN card, voter ID card should be compelled by law to change the name and gender of the person on the ID/certificates/documents they have issued in the past. They should only list the changed name and gender, and not provide both names as alias the way that ration cards currently function.
2. CERTIFICATION: For benefits from the state, there could be a certification process, but the certification panel needs to include a majority of transgender and intersex people from all the diverse identity backgrounds – equal numbers of transwomen, trans men, intersex, hijra, shivashakti, jogappa, mangalmukhi, aravani, jogta, etc. that are locally and culturally relevant. The composition of the transgender and intersex people on the board should rotate and change every year. Any psychiatrists/social workers/government administrators on the board must be approved by the community members, and the community members should constitute the majority of the board.
3. INTERSEX: Intersex people’s concerns should be incorporated into this bill and they should be included in the scope of the bill. The bill’s title should be expanded to read as “The Rights of Transgender and Intersex Persons Bill”, and every mention of “transgender person” in the bill should be replaced with “transgender or intersex person”.
4. PENALTY: The Bill in its present form is at most a reflection of intent, but has no clauses that elaborate on the penalties for non-compliance. If there no penalties for defaulting on the provisions of the Bill then the bill will be completely unenforceable and will be nothing more than a piece of paper. Such a penalties section was part of Chapter IX, Section 49-50 of the private member’s Rights of Transgender Persons Bill 2014 Bill No. XLIX of 2014 as passed by the Rajya Sabha. It also does not specify a clear line of duties and responsibilities when it comes to governmental and non- governmental agencies. Beyond that, it was also felt that the Bill needs to cover a more specific range of offences against the community beyond what it already does, including atrocities, police violence, name-calling, lack of access to public and religious spaces, and exclusion even from burial grounds.
5. VIOLENCE: The way the bill defines violence is seriously flawed. To start, it is limited to “intentional use of physical force or power” which includes self harm. First of all, defining physical harm as having to be intentional to be considered by this bill limits the reach of the bill and compromises cases of violence on transgender and intersex people by requiring proof of the intention of the assailant/perpetrator. Also since suicide rates are very high in the transgender community it is worrying that self harm is also treated on the same footing as other forms of violence – this would effectively make most transgender people targets of this bill and make people’s lives even more miserable when they act on suicidal feelings. We welcome the revision of the IPC to protect transgender and intersex people from sexual assault which is a frighteningly regular source of violence, and this should be implemented for all transgender and intersex people regardless of the physical/surgical state of their bodies. Section 377 of the IPC should be changed so that when transgender or intersex people are sexually assaulted only the rapist is punishable but not the victim/survivor regardless of their body and chosen gender, and consensual sex between any two people should not be criminalized. This bill also does not take emotional or verbal violence against transgender and intersex people seriously, nor does it take adequate measures to guard against major perpetrators of violence against transgender and intersex people: police, partners/clients, and the family. The police are treated as protectors of transgender and intersex people and there are sections of the proposed bill guarding against police inaction if crimes occur on transgender people, but nothing to guard against or effectively punish atrocities by police. Also, transgender and intersex people who are often survivors of police repression, atrocities, entrapment and corruption, should be able to directly approach the Executive Magistrate on cases of violence, if they are not comfortable approaching the police, as per chapter II, Section 10 of the Rights of Transgender Persons Bill 2014 Bill No. XLIX of 2014 passed by the Rajya Sabha. Specific groups also must have protection mechanisms for the specific kinds of atrocities and violence they face: for Jogappas protection from temple authorities, for transmen who are forcibly married it is the husband and in-laws, for hijras in sex work protection from police and clients, and for many transgender and intersex people, especially in childhood, it is the family and school that becomes their source of violence.
6. EMPLOYMENT: Employment is a major problem faced by transgender and intersex people and the proposed government bill has ended up de-incentivizing employers in the private and government sector from considering transgender and intersex people for employment by altogether deleting sections 22, 23 and 24 of the Rights of Transgender Persons Bill No. XLIX of 2014. As per that Section 22 of that bill, we demand a clear demarcation of 2% reservations in every government or government aided establishment. With transgender and intersex people being such a stigmatised minority within the proposed OBC category, and SC/ST transgender and intersex people also being a stigmatised minority within the SC/ST category, we fear that mere inclusion in those categories would not suffice to produce even a single jobs for any transgender or intersex individuals. When it comes to the issue of reservations, we as a community would like a clearly demarcated internal reservation quota based on gender – within the SC/ST or OBC categories depending on whether the transgender/intersex individual is born SC/ST or not, respectively. As per the former Section 23 of the Rights of Transgender Persons Bill No. XLIX of 2014, we also ask that the employers in the private sector with transgender/intersex employees comprising 2% of their overall workforce in India be incentivized with special benefits or tax exemptions, and with a monitoring mechanism for oversight. Across public and private sector, transgender/intersex employees must be have a protected class status as in many other developed democracies. Section 24 of that bill also provided for a Special Employment Exchange for employers to furnish information on such vacancies for transgender people, and section 17 provided for an unemployment allowance to unemployed transgender people registered with special employment exchange for more than 2 years – we ask for these sections to be reinstated and to include intersex people. Without all of these provision, no real employment opportunities will arise for transgender and intersex In that context, already after the NALSA judgment, we have seen society and the police intensify the criminalization of sex work and begging, on the assumption that other jobs are available. We demand the decriminalisation of these forms of work and the implementation of all the proactive measures listed above to provide other forms of livelihood to transgender and intersex people.
7. EDUCATION: We demand the clear demarcation of reservations of 2% in education in the government owned and funded institutions as laid out in Chapter V, Section 21 of the private member’s Rights of Transgender Persons Bill 2014 Bill No. XLIX of 2014 as passed by the Rajya Sabha. Also, Chapter IV on education only safeguards the rights of transgender students in government and government aided educational institutions and keeps the large private sector in education exempt from safeguarding the rights of transgender students. This chapter must apply to the entire educational sector regardless of whether the institution is government owned, government funded or private, and it must include intersex students.
8. COMMISSIONS AND COURTS: The bill also removes some crucial provisions from the Rights of Transgender Persons Bill No. XLIX of 2014 as passed by the Rajya Sabha, such as National and State Commissions for Transgender Persons, special transgender courts, and access to free legal services under the Legal Services Authorities Act, 1987. Many transgender people feel these would be essential to strengthen the struggle for transgender dignity, and necessary for the enforcement of this bill, although whether they empower transgender people would depend on the details of the proposed structure. For example, it is important that these structures function with sensitivity, and speed, that any decision making process should have a majority representation by diverse members of our community, and the structure should be accessible to all community members.
9. IMPLEMENTING NON-GOVERNMENTAL AGENCIES: This bill, along with previous bills, has described in Chapter VI a process of ‘rehabilitation’ for transgender people to be formulated in consultation with, and with financial assistance to the “non-governmental organizations” working for the cause of transgender persons. We do not agree that we need to be‘rescued’ or ‘rehabilitated’ since nothing is wrong with us; instead there are problems with societal respect for us – hence we would prefer support for more education and livelihood opportunities. To do so, for the government to rely only on registered non-governmental organizations is deeply problematic and systemically flawed as there are many leakages and instances of corruption in the NGOs that receive large sums of money to “work for the cause of transgender person”. We would prefer that the appropriate government and local authorities have broad based consultations with the transgender and intersex community at large, with unfunded and unregistered informal community collectives, and with individual transgender and intersex individuals unaffiliated to NGOs. If the government directly administers and implemented programmes and policy for our community, operating out of a transgender/intersex welfare centre or community hall in each district, we believe that would be more effective in implementing schemes for the welfare and support of the community.
10. MARRIAGE, INHERITANCE, ADOPTION: Several aspects of the right to life and liberty of transgender and intersex people to function equally to all people in society, such as equal access to marriage, access to all marriage-like benefits between transgender and intersex people sharing a home who might not be coupled/partnered or want to get married, but who are otherwise each other’s primary caregivers, the right to inheritance and adoption by trans people are not included in this bill. These should be incorporated to provide true equality to transgender and intersex people.
11. CHILDREN: Children who are intersex should not be subjected to “corrective” medical surgeries that modify their bodies to fit conventional ideas of the bodies of male or female children. We recommend that the bill cover the rights of “transgender, intersex and gender non conforming” children, since not all children who identify as transgender as adults, will identify that way as children. However, any children who do not conform to gender stereotypes can be targeted for ridicule and the bill should protect all of them. Furthermore, the state should explicity ‘provide them appropriate support for the exercise of the rights’ of transgender children, as mandated in Chapter II, Section 5 of the Rights of Transgender Persons Bill No. XLIX of 2014, because without family support, transgender and intersex children may not in fact be able to exercise these rights.
12. HEALTH: We welcome warmly the provision of free sex reassignment surgery and ask that this include free hormone replacement therapy (HRT). All medical insurance providers must cover HIV and AIDS patients, and instead of separate HIV sero-surveillance centres for transgender people mentioned in Chapter VI, which further segregates an already vulnerable population of transgender people living with HIV and AIDS, we ask for complete access to existing medical care systems.
13. INFRASTRUCTURAL LOGISTICS: Hijras, intersex people and transgenders routinely face daily trouble in accessing bathrooms and public transport. One source of medical problems for the transgender community is access to bathrooms. More single-stall bathrooms like the bathrooms found in trains should be set up in public areas without any gendered signs, so that we can go in and out without harassment or trouble. In public transport, we should be able to avail bus seats or coaches reserved for people with disabilities as we face intense sexual assault and harassment in general coaches. Transgender and intersex people who do not get government jobs with proper pension benefits should also get access to pension schemes like Asara pension scheme, medical insurance/arogyashri cards, white ration cards, DWACRA self help groups, etc.

Community members felt that while the Bill takes an important step forward, it does not go far enough. Though this Bill is a long pending and much required measure, the time allotted for consultation is and feedback is limited. Ultimately, the point is reiterated -the Government needs to extend the deadline for comments on the Bill, and to carry out effective consultations with the masses of the community instead of a selected set of representatives.

We, the members of the Transgender and Intersex community in Telangana along with people from the communities in Karnataka, Tamil Nadu, Andhra Pradesh and Kerala acknowledge the efforts of the government and judiciary to affirm the rights of Transgender persons. For the past year we have been analysing the NALSA judgement and the Transgender Rights Bill, 2014 (Bill) as it was introduced in the Rajya Sabha and the form in which it has been introduced in the Lok Sabha. With slight variations they all seem to acknowledge the need to address Transgender rights through a new law and focused effort at the national, state and district level. Our process of consultations have been rigorous within the community, ranging from one to one, group meetings at the districts, state and regional levels. We hope our feedback is taken seriously so that the provisions of the Bill that can support us in exercising our constitutional rights and living a life of dignity.

CONTACT:

For Telangana Hijra Transgender Samiti:

Vyjayanti Vasanta Mogli

E mail: vyjayanti.vasanta.mogli@gmail.com, vyjayanti.vasanta.mogli@telanganahijratrasngendersamiti.org

Mobile: (91) 988 556 7958

Bittu Karthik Kondiah

E mail: bittu.kondaiah@gmail.com, bittu.karthik.kondaiah@telanganahijratransgendersamiti.org

Mobile (91) 817 954 2651

For A.P.: Rachana 8019378266

For Karnataka: Kumar B 9481148916

For Tamil Nadu: Sankari 9551837719

For Kerala: Sonu 08129193225

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’.

Comments on Point 2(d): While addressing discrimination it should include the ways of segregation/ghettoization which is done in the name of inclusion. That makes trans persons more and more secluded from the mainstream. In the name of all separate provisions it should not become like trans persons are made as separate beings.
(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.

Comments on Point 2(s): Persons with Intersex variation also undergo severe exploitation, violence and discrimination. Persons with intersex variation when found at the birth should be given choice of their gender and it should be fully respected. The time taken till they choose gender where they live in different kinds of bodies that they have which can be surgically changed should not be discriminated. It also cannot be seen as trans gender issue as there is a bodily difference. They undergo similar issues like trans people in schools, colleges, work places, family, friends, pubic, which is violent and insulting because of this social system. There should be an environment which is violent free and discrimination free for their lives. There is also a need to address their needs with all its specificities. To be more inclusive the name of the bill should be also changed to Rights of Intersex and Transgender persons’ Bill.

With persons with intersex variation the question of assigned gender at birth makes it very complicated as it is based on the biological bodies, which is constructed based on the hetero-normative reproductive paradigm. So to assign based on these two genders at birth is a wrong process.

(t) ‘violence’ means the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, mal development, or deprivation.

Comments on Point 2(t): The use of the word intentional in the definition of Violence is a little complicated when it comes to the issues of trans persons. There has been a history of violence against trans persons in the name of correcting, getting them to realize the assigned gender at birth, through physical violence, sexual violence, medical violence etc. If the word intentional is used then there is an escape way for the society to say that they never knew that it was trans issue. So there needs to be a mechanism to handle such violence which is intentional based on the social system of binary genders and hetero-normativity. It will help if there is a separate supportive Anti-Atrocities protection for Transgenders.

4. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

Comments on Point 4: “Act to have overriding effect” – In the context of transgender persons especially male to female who come from the cultural backgrounds begging and sex work has been their main profession. This is mainly because the society has pushed these communities to such lack of options for their survival. In India Begging is criminal, soliciting is criminal and the kind of sexual acts transpeople will get involved is also criminalized. In this back drop though sex work is not criminal and soliciting is criminal, the police and public morality acts against people in sex work. For people who are pushed into these professions from generations immediate shifting to the rightful mainstream is not easy. In fact many communities do not even have the knowledge of this bill. In this light sex work, begging and IPC 377 should be decriminalized.

Chapter 2 Transgender Identity

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.

Comments on Point 1: “Transgender should be declared as the third gender” – is there a need for this hierarchy of first second and third gender? This would also mean first gender is man and second gender is woman and third is trans. In most of the academic studies it is proved that there are many expressions of genders. The state should be update with these gender discourses. These research discourses are based on real life experiences. The gender hierarchy has already resulted in severe patriarchal violence against women and all vulnerable communities. So we strongly refuse the third gender status.

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.

Comments on Point 2: This points speaks about certification process. The NALSA judgment has stated about self-identification of gender as gender is an integral part of a one’s being and that has to be decided by the person. It is a contradiction if the state has to certify the gender of a person. And if state will certify the gender of trans people the state should also certify the gender of women and men. That will address all citizens equally when it comes to self-identification of gender question.

The NALSA judgment allows trans people to self-identify as Man, Woman or Transgender. For many trans people to identify as ‘man’ or as ‘woman’ should be allowed through self-identification process. This can be done only through affidavit which is notarized or court, extending to all ID cards. This should also not be a problem for such people to avail services. Just because a person is trans it should not become mandatory for trans people to identify as transgender to avail services.

To quote the bill – “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” – it contradicts when the line before says that transgenders should be declared as Third Gender. That is also another reason why third gender declaration should be removed and man, woman, or transgender self-identification should remain.

Moreover there are two separate needs of trans people: the self-gender identification and the self-gender identification and services. For the self-gender identification there should be court or notarized affidavit which should be accepted by all the state establishments, educational institutions and other state and private sectors. On the other hand the people who need services and entitlements from the state should have an authorization process. All the identity cards should be through self-identification process including voter ID, ration card, passport, pan card, Aadhaar, etc. For the services that state gives to trans people, there should be autonomous bodies for authorization and not certification for only services. The autonomous bodies should be with rotational representation for every 6 months and for that rotation there should be election with community. It should not have people sitting in the committee already. It should also have government represented mental health professionals. It should not be under the hands of NGOs working for the Transgender people which will force trans people to become members of the NGOs or the NGOs will favor whom to authorize and whom not and there are possibilities of discrimination. There should be a process where trans people who live in villages should also easily get services.

Chapter 3 – Rights and Entitlements

5: A harmonious reading of the Constitutional provisions as well as the provisions of the Citizenship Act, 1955 and the General Clauses Act, 1897 Act would show that in fact there is no conflict or limitation imposed on the concept of ‘person’ by any of these laws and a Transgender Person would undoubtedly fall within the definition of ‘person’. It is evident that the Constitution of India guarantees right to equality and non-discrimination for all including transgender persons.

Comments on Point 5:. In the entire of IPC there are gender specific terms like his, her, daughter, sister, wife, son, brother etc. and these needs to be expanded to include all trans and intersex persons.

7. The appropriate Government and local authorities shall take all necessary measures to ensure that transgender 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.

Comments on Point 7: Considering the present situation in India, at an early age, the concept of transgender is not known by children. They will be gender non-conforming. There are many children who express gender non-conforming expressions out of whom not all will be transgenders. There is a need for creating an environment for gender non-conforming children to freely express themselves. Those who might identify as trans later will need enabling environment to identify themselves. There is a need for gender neutral uniform attire system which will enable trans people to be more comfortable to identify themselves so that they will not be pushed out of educational system based on the prejudice of being non-conforming.

Point 9. Right to live in Community

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:— (a) ensuring that Transgender Persons have access to a range of in-house, residential and other community support services, including assistance necessary to support living and inclusion with community; and (b) making community services and facilities for the general population available on an equal basis to Transgender Persons.

Comments on Point 9(2): Clarification is needed on this point. Who is the community that is mentioned here as not all trans cultures have community living? Is this based on the Hijra Community that lives together? What is the kind of support as it is not specified in this point? Is it about state financial support for trans communities living together or housing support for trans communities?

10: Every Transgender Person has a right to respect for his or her physical and mental integrity on an equal basis with others.

Comments on Point 10: The language used in these lines creates an assumption that transgender persons do not have physical and mental integrity. It is pathologizing of transgender issues. It is also discriminatory to have wordings like ‘his’ or ‘her’ while speaking about trans issues which broadens the concept of ‘his’ and ‘her’.

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.

12. (1) The appropriate Government and local authorities shall take all appropriate administrative, social , educational and other measures to protect Transgender Persons, both within and outside the home, from all forms of abuse, violence and exploitation. (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:

Comments on Points 11 and 12 and sub sections 2 and 3: The use of language which includes rescue, protection and rehabilitation is degrading the integrity of transgenders. The rehabilitation language keeps away the rights language of violation of rights, violence, exploitation, torture, atrocities free of right to life. It is the rights of transgender people who are like any other people. It is also the responsibility of the state agencies to be equipped to handle the cases where trans people are facing violation of rights, violence, exploitation, torture, atrocities etc. to give them the rightful remedies. We reject the framework of rehabilitation and instead would like the state to work on a rights based framework. (4) Necessary amendments in IPC to cover the cases of sexual assault on Transgender Persons.

Comments on Point 12(4): The victim category in the IPC section 375 should include transgender persons, persons with intersex variations, and genderqueers.

Point 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. (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.

Comments on Points 13(1), (2) and explanation: There is a need for the trans community people to have adoption rights and the alternate families constructed by transgenders like Hijra families should be legitimately recognized as families. On the other hand many female to male trans people who were previously forced into hetero sexual marriages also had to bear children. Those female to male trans people who now live in different family set ups which is alternative should also be recognized as legitimate families.

Chapter 4 Education

15. The appropriate Government and local authorities shall ensure that all educational institutions funded or recognized by them, provide inclusive education, and inter alia,— (i) admit transgender students without discrimination and provide them education as also opportunities for sports, recreation and leisure activities on an equal basis with other;

Comments on Point 15 (i): In the context of sports and persons with intersex variation there needs to be a different way of addressing the issue of the bodily test of confirming gender. It should not be medical and the inclusion of persons with intersex variation in sports should be made.

There should be training on the issues of persons with intersex variation and transgenders starting from primary education to have an accepting environment in the educational system. This means the educational curriculum should change in terms of what is gender, what is a family, what are gender roles of people etc.

In the lower educational system there should be non-discriminatory environment and in the higher education where people start identifying their gender, we need the affirmative action of reservation which of course is not based on the number of population but a different mechanism which will enable trans people to get facilities in higher education.

16. 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.

Comments on Point 16:  In the present system there are many trans people and people with intersex variation who have been pushed out of educational system due to discrimination of not being binary genders. In this context there is a need for reasonable accommodation which will enable the present communities of trans and intersex people to continue from the plus 2 class which is a preparatory course for degree in distance education system. At the same time if there are trans and people with intersex variation who have been pushed at the degree level then based on their skills they should be accommodated in different degree courses.

For the future generations there is a need for affirmative action in terms of reservation percentage not based on population. The number strategy does not work when it comes to trans and people with intersex variation as not all communities are out there. There are social morality restrictions on some trans and intersex communities which stops from expressing themselves.

Chapter 5 Skill Development and Employment
17 (1): The appropriate Government shall formulate schemes and programmes to facilitate and support employment of Transgender Persons especially for their vocational training and self-employment.

Comments on Point 17: In the name of vocational training for many communities there have been incompetent skill trainings which are not economically viable. For persons with intersex variation and transgenders there needs to be an in depth study on what is needed and then economically viable schemes should be given.

18(1): 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.

Comments on Point 18: There is a need for every sector whether government or private to have a non-discriminatory policy set up with guidelines which will monitor acts discrimination based on different issues including transgender issue.

Chapter 6. Social Security, Health, Rehabilitation and Recreation

19(2)(b) Pension to Transgender Persons subject to criteria as may be prescribed;

Comments on Point 19(2)(b): There is no clarity in the criteria. What should be the criteria for giving pensions. Some state governments are already giving pensions to trans people. More clarity is required on this point.

19(2)(c): Financial assistance to the parents of Transgender children;

Comments on Point 19(2)(c): Financial assistance to the parents of Transgender children;
Point 19 – 2 (c). What is the basis on which financial assistance is given to parents of transgender children. There is no clarity on this point. If financial assistance is given to the parents of transgender children, then this should actually extend to parents of people with intersex variation especially from working class backgrounds.

19(2)(d): Assistance for Skill Development training to Transgender Persons.

Comments on Point 19(2)(d): Assistance for Skill Development training to Transgender Persons. (e) Facilities for Transgender Children who have no families or have been abandoned, or are without shelter or livelihood; (f) access to safe drinking water and appropriate and accessible sanitation facilities especially in urban slums and rural areas (g) safe and hygienic community centres with decent living conditions in terms of nutritious food, sanitation, health care and counselling;

19(2)(e): Facilities for Transgender Children who have no families or have been abandoned, or are without shelter or livelihood;
19(2)(f): access to safe drinking water and appropriate and accessible sanitation facilities especially in urban slums and rural areas.
19(2)(g): safe and hygienic community centres with decent living conditions in terms of nutritious food, sanitation, health care and counselling

Comments on Point 19(2)(e to g):
In the sub point (e) there is no clarification if the government will provide shelter to abandoned transgender children. In fact many children with intersex variation get thrown away by family. If the shelter is given there is need to recognize identity specificities of trans and intersex range.

In sub points (f) and (g) does it mean that only transgender persons will be provided water and sanitation facilities? It is detrimental make such points leaving out a range of people living in slums. Also there is an assumption that most of the transgender people live in slums.

20(1): The appropriate Government and local authorities shall take necessary measures to provide transgender persons:— (a) separate HIV Sero-survellance Centres since they face several sexual health issues; (b) sex reassignment surgery, free of cost; (c) barrier-free access in the hospitals and other healthcare institutions and centres; (2) To fulfil its obligation under this Section, the appropriate Governments shall make schemes and programmes with participation and involvement of Transgender Persons and caregivers that inter alia makes provision for coverage of medical expenses and therapeutic intervention by a comprehensive insurance scheme for transgender persons.

Comments on Point 20(1) and 20(2): There is need for a separate chapter on health issue. There are differences within the trans identities and there is a major difference between trans surgeries and surgeries of persons with intersex variation. Though in the sub point 20 -1 (b), it says free surgery, there is a need of in depth understanding of the male to female surgeries and female to male surgeries. When it comes to the persons with intersex variation the variation differs from person to person in terms of their body composition. That is an entirely different surgery. HIV is a health issue that concerns mostly male born trans people. There are other health concerns of female born trans people. The health chapter should cover all these in detail. Also SRS is not the end of trans health issue. After SRS there is a need for care of post SRS health problems.

21. (1) The appropriate Government and local authorities shall undertake or cause to be undertaken services and programmes of rehabilitation, particularly in the areas of health, education and employment for all Transgender Persons. (2) The service and programmes shall be designed so to begin at the earliest possible stage and to be based on a comprehensive assessment of issues faced by Transgender Persons. (3) For purposes of sub-section (1) of section 19, read with subsection (2), the appropriate Government and local authorities shall, subject to fulfilment of financial and other norms, and availability of budgetary allocation, grant financial assistance to non- governmental organizations. (4) The appropriate Government and local authorities, while formulating rehabilitation policies, shall consult the nongovernmental organizations working for the cause of Transgender Persons. (5) Without prejudice to the generality of sub-section (1) of section 19, the appropriate Government shall by notification formulate schemes to provide aid to Transgender Persons.

Comments on Point 21 (1) to (5):  This entire section looks like state is dumping all the responsibility on non-governmental organisations to empower the trans community. The main point that should be understood is that not all transgender persons and persons with intersex variation are covered by NGOs. The dependence on NGOs creates limited reach and creates space for favoritism. There will be a force on the community to become the members of those NGOs. The state should give these services directly to the transgender persons and persons with intersex variation.

The language of rehabilitation is very regressive in this context. Transgender community and persons with intersex variation for years and centuries were denied the right to citizenship in this country. Now while addressing the rights of this community the language of rehabilitation will mean that this community is being pathologised.

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 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.

Comments on Point 23: In the context of reservation the OBC status will work for non SC/ST trans people but for SC/ST there should be special provisions within SC/ST categories otherwise they will be pushed under general category with other SC/ST people and will not get their rightful space. Also many transgender persons and persons with intersex variation would leave homes when they are young and will not have the necessary caste certificate. That should also be provided to this community.

CHAPTER VII

DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT

Comments on this chapter: The whole design of awareness raising of transgender and persons with intersex variation rights should be done with a rights-based approach and not to gain sympathy. The awareness raising should be done in villages also using material which is visual and literary as not all people in India are literate. Public awareness can be created using hoarding boards, busses, media, and public advertising systems. All state and private establishments should have cells to sensitize about transgender and persons with intersex variation rights. On the other hand transgender and persons with intersex variation rights should also reach communities across villages in India and this can be done through local self governments. Government helplines should be established for availing support, information, crisis intervention etc. This will have more firm value if done by the government on the public.

Suggestions to be incorporated:

• This bill does not cover the rights of transgender persons and persons with intersex variation –
  1. Marriage rights
  2. Adoption rights
  3. Property and Succession rights.
• There is a need for inclusion of transgender persons and persons with intersex variation in some special acts for rightful protection – 1. Protection of Women From Domestic Violence Act (this is in context of family torture and force on trans and persons with intersex variation to remain in the assigned genders)
• There is a need to make necessary changes in IPC sections to include transgender persons and persons with intersex variation.
• There is a definite need to have transgender and persons with intersex variation rights commissions at center and state level which should not just end up being a recommendatory body. These commissions should have power to take necessary actions in order to protect the rights of transgender and persons with intersex variation.
• In this entire bill there is no penalty provision for the violation of rights mentioned in this bill. It is not mentioned either in the form of punishment or compensation. That should be included as this community is stigmatized and faces violence from public, family, friends, educational institutions, teachers, employers, co-workers, etc.
• To look into the implementation of this ACT there should be a monitoring body which includes the community people to ensure that the provisions are being implemented and going in the rights based approach and reaching the services to the community without any lack.

The drafting mistakes

• There are missing sections from Point 1-4 in Chapter 3: it starts with point 5.
• In Chapter 3 sub section Point 12 jumps from Point 4 to 8, the 5, 6, and 7 are missing.
• Chapter 6 ends with ends with point 23 and Chapter 7 starts with point 25. Point 24 is missing.

The South India Transgender Samithi held a consultation on the Government of India’s Rights of Transgender Persons Bill, 2015 on the 30th of December.  The Consultation brought together community members from across South India at the Indian Social Institute in Bangalore to discuss the new bill which has been made available on the Ministry of Social Justice and Empowerment’s website. This Bill is the Government of India’s response to a private members Bill also dealing with the Rights of Transgender Persons which was passed unanimously in the Rajya Sabha earlier this year.

The unanimous position arising from this consultation was that the deadline of 4th January, 2016 given by the government to submit comments on the Bill was incredibly short and unfeasible.  It was agreed by all present that the deadline needs to extend by at least a month during which period the government must take the initiative to consult all community members – this is feasible given the small size of our community. Without such effective consultations and time period given the entire exercise will prove to be a failed one that disregards the varied deeply personal and political struggles of the transgender community for self identification and dignity.

In terms of substantively discussing the Bill, the following issues were flagged as seriously worrying:

1. IDENTITY: The entire struggle of transgender people is for us to be able to live in our chosen identities. However, the bill does not provide a mechanism for self identification – instead a recommendation for certification as transgender is “Issued by a state level authority… 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”. Many of us in the transgender community have struggled with the transphobic biases and deeply unscientific understanding of psychologists, psychiatrists, magistrates, social workers, etc. and we are not comfortable with them having authority over declaring people as transgender. The Supreme Court’s NALSA v. Union of India judgment in 2014 made a strong case for the right to self-identification of transgender persons, which would mean a minimum of procedural barriers from claiming recognition. This Bill on the other hand proposes a complex two-tiered mechanism which risks trapping transgender individuals in a bureaucratic apparatus to obtain basic recognition of their identity.  We believe that people should be able to self-identify as any gender regardless of surgery/hormones, by filing a court affidavit declaring the same and converting all their identity documents to reflect this.

2. CERTIFICATION: Once a transgender person has filed the affidavit, all bodies that produce IDs and certificates, including ration cards, driving licenses, and educational institutions should be compelled by law to change the name and gender of the person on the certificates they have issued in the past. They should only list the changed name and gender, and not provide both names as alias the way that ration cards currently function. For benefits from the state there could be a certification process, but the certifying panel needs to include a larger number and diversity of transgender people from all the identities – transwoman, trans man, hijra, shivashakti, jogappa, aravani, jogta, etc. that are locally culturally relevant.

3. PENALTY: The Bill in its present form is at most a reflection of intent, but has no clauses that elaborate on the penalties for non-compliance.  If there no penalties for defaulting on the provisions of the Bill then the bill will be completely unenforceable and will be nothing more than a piece of paper.  It also does not specify a clear line of duties and responsibilities when it comes to governmental and non- governmental agencies. Beyond that, it was also felt that the Bill needs to cover a more specific range of offences against the community beyond what it already does, including atrocities, police violence, name-calling, lack of access to public and religious spaces, and exclusion even from burial grounds.

4. VIOLENCE: The way the bill defines violence is seriously flawed. To start, it is limited to “intentional use of physical force or power” which includes self harm. First of all, defining physical harm as having to be intentional to be considered by this bill limits the reach of the bill and compromises cases of violence on transgender people by requiring proof of the intention of the assailant/perpetrator. Also since suicide rates are very high in the transgender community it is worrying that self harm is also treated on the same footing as other forms of violence – this would effectively make most transgender people targets of this bill and make people’s lives even more miserable when they act on suicidal feelings. This bill also does not take sexual, emotional or verbal violence against transgender people seriously, nor does it take adequate measures to guard against major perpetrators of violence against transgender people: police, partners/clients, and the family. It is also different for specific transgender groups: for the Jogappas it could be the temple authorities, for hijras in sex work it could be the police and clients and for children it is the family and school that becomes their source of violence. The police are treated as protectors of transgender people and there are sections guarding against police inaction if crimes occur on transgender people, but nothing to guard against atrocities by police.

5. EMPLOYMENT: Employment is a major problem faced by transgender people. The Lok Sabha bill has ended up de-incentivizing employers in the private sector from considering transgender people for employment by altogether deleting sections 23 and 24 of the Rights of Transgender Persons Bill 2014 of Tiruchi Siva as passed by the Rajya Sabha. The scope of reservation is limited by being restricted only to government jobs and with transgender people being such a minority within the proposed OBC category. When it comes to the issue of reservations, we as a community would like a separate quota based on gender and do not want to be clubbed with SC, ST or OBC – instead there could be internal reservation for SC/ST/OBC transgender people to allow fair access. It is also important for the bill to clearly mention that reservation extends to education.

6. COMMISSIONS AND COURTS: The bill also removes some crucial provisions from the private members’ Bill of Tiruchi Siva, such as National and State Commissions for Transgender Persons and transgender courts. Many transgender people feel these would be essential to strengthen the struggle for transgender dignity, although whether they empower transgender people would depend on the details of the proposed structure. Any decision making process for the support and administration of programmes and policy for our community should have a majority representation by members of our community, and be accessible to all community members.

7. CHILDREN: We recommend that the bill cover the rights of “transgender and gender non conforming” children, since not all children who identify as transgender as adults, will identify that way as children. However, any children who do not conform to gender stereotypes can be targeted for ridicule and the bill should protect all of them.

8.  MARRIAGE, INHERITANCE, ADOPTION: Several aspects of the right to life and liberty of transgender people to function equally to all people in society, such as marriage equality, repeal of Sec. 377, and right to inheritance and adoption by trans people are not included in this bill.

9. INTERSEX: Intersex people’s concerns should be incorporated into this bill and they should be included in the scope of the bill.

10. MEDICAL: Mention of SRS should include Hormone replacement therapy, both should be subsidized

Community members felt that while the Bill takes an important step forward, it does not go far enough. Though this Bill is a long pending and much required measure, the time allotted for consultation is and feedback is limited. Ultimately, the point is reiterated -the Government needs to extend the deadline for comments on the Bill, and to carry out effective consultations with the masses of the community instead of a selected set of representatives.

Over the last few years there has been a growing interest in issues of Transgenders and sexual minorities. The recognition and attention is a welcome precondition to addressing the needs of the community. It is important that we as a nation are recognizing that gender and sexuality go beyond the simple binary of male and female. We do not agree that we need to be ‘rescued’ or ‘rehabilitated’ but would prefer support for more education and livelihood opportunities.

We, the members of the Transgender community in Telangana, Karnataka, Tamil Nadu, Andhra Pradesh and Kerala acknowledge the efforts of the government and judiciary to affirm the rights of Transgender persons. For the past few months we have been analysing the NALSA judgement and the Transgender Rights Bill, 2014 (Bill) as it was introduced in the Rajya Sabha and the form in which it has been introduced in the Lok Sabha. With slight variations they all seem to acknowledge the need to address Transgender rights through a new law and focused effort at the national, state and district level. Our process of consultations have been rigorous within the community, ranging from one to one, group meetings at the districts, state and regional levels. We hope our feedback is taken seriously so that the provisions of the Bill that can support us in exercising our constitutional rights and living a life of dignity.

CONTACTS:

For Telangana: Vyjayanti 9885567958
For A.P.: Rachana 8019378266
For Karnataka: Kumar B 9481148916
For Tamil Nadu: Sankari 9551837719
For Kerala: Sonu 08129193225

Note: This press release was circulated on closed mailing lists and sent to the media, and has been posted on Orinam with express consent.

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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