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

Click here for Tamil version of the Press Release.

Dec 3, 2019, Chennai:

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

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

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

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

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

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

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

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

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

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

Ten years later, we are still standing, even if not tall. It has been a tumultuous journey; from telling us our lives were legal in 2009 to oh-wait-scratch-that-still-illegal in 2013, the landmark NALSA judgement in 2014 to the current Transgender Persons (Protection of Rights) Bill which neither protects trans rights nor complies with the operative part of NALSA, the progressive judgement on the Right to Privacy, and finally getting down to the Anti-Trafficking bill which can do more harm than good.

Initially established in 2009 as the Chennai Rainbow Coalition,  a number of NGOs, CBOs, collectives and other organizations and individuals working in the space of queer rights and community support stitched themselves together to observe June as Pride month in Chennai and to conduct the first Pride march  that year.  In 2013, the Chennai Rainbow Coalition expanded to include similar groups outside Chennai and within Tamil Nadu, and renamed itself the Tamil Nadu Rainbow Coalition [TNRC].

In 2009, Marina Beach, we learned, was the venue we were permitted at our first March. In later years, we were shuffled around to Elliot’s beach and eventually to a stretch commencing from Rajarathinam stadium, Egmore. As to where we go from here, your guess is as good as mine!

However, now that we are talking about venues, let’s try to address the ubiquitous question: “why this venue?” This merits a two-part answer. This is the venue allocated by the state for protest marches, as the Pride march is classified. That being said, even if we had a choice over the venue, the right question to ask is “why NOT this venue?”

What makes this venue, unworthy of your walk? The class of neighborhood? Its residents? Or are you worried the puddle on the road will dirty your shoes? Where is the solidarity that you are marching for, if you can’t share “their” everyday lives for a few hours? Moreover, aren’t some of us them, some of them us?

Mind you, if a bisexual transwoman of color who was a sex worker didn’t help start the Stonewall riots, you wouldn’t have a Pride to celebrate this June for the 10^th time. Perhaps, may be a beauty walk down your favorite lane, but that ain’t Pride, the one that is claiming you, your place in the society one right at a time. [We acknowledge there are valid concerns around the accessibility of this venue for those requiring wheelchairs, and are striving to address it by trying to mobilize vehicles that can transport people in wheelchairs].

Every Pride is a struggle to organize, be it for mobilizing funds, logistics, or applying for police permission every year. Simultaneously our voices have grown louder, more brazen and unapologetic. 

Our focus on issues has diversified over the years, with growing consciousness of the overlapping nature of oppressions. Intersectionality became an operative word and efforts to link with other social justice movements became the need of the hour. Can we do more and better? Of course, yes, hopefully you will hear of it from a post about the 15^th Chennai Pride.

I had to save this for the last: if you’ve heard a conversation containing the line “Chennai Pride is conservative” at the march, immediately imagine a person rolling his eyes  so far back he can see the back of his skull. That person will unmistakably be yours truly. If by conservative, they mean middle-class led, trans-inclusive, caste-bashing, feminism-toting Pride, sloganeering for sex workers’ rights in a working class neighborhood, I will gladly take it, flashing all my conservative teeth!

Image Credits Haris Manian and copyright Orinam

Although the decision was unanimous, there were six separate concurring judgments. A common thread runs across the findings given in all judgments that while the right to privacy is rooted in the right to life and liberty under Article 21, it is also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms under Article 19 of the constitution. It unanimously overruled the right judge decision in MP Sharma v. Satish Chandra to the extent that it holds that it indicates that there is no right to privacy and also overruled Kharak Singh v. State of UP to the extent that it did not give a positive finding on the right to privacy.

I would like to focus this piece on the manner in which the right to dignity has been the focus for the Court for the development of the right to privacy. This argument has special significance for the guarantee and protection of the rights of the transgender community. That the right to live with dignity includes the right to autonomy, to make decisions about one’s life choices was eloquently affirmed by Justice Dhananjay Chandrachud where he holds, “ …The best decisions on how life should be lived are entrusted to the individual. ……The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” He went on to hold that dignity permeates the core of the rights guaranteed to the individual under Part III of the constitution and privacy assures dignity to the individual.

Privacy ensures that a human being can lead a life of dignity by securing a person from unwanted intrusion. In the context of dignity, specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy. Justice Chandrachud went as far as to hold that the reasoning of the Supreme Court in Suresh Koushal vs. Naz Foundation and Others that only a miniscule minority was affected was flawed and held “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.”

The Court went on to hold that sexual orientation is an essential attribute of privacy and that the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. This settles the rights for the setting aside of Section 377 of the Indian Penal Code. Sexual orientation rights, sexual orientation is not limited to the gay, lesbian and bisexual groups but inextricably linked to transgender and intersex persons as well. Not limiting the recognition of the right to sexual orientation, the Court went on to hold that “The rights of the lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” It held that “Equal protection demands protection of the identity of every individual without discrimination.” This would most certainly include the right to one’s self-identified gender identity as upheld as an integral part of the right to life in NALSA v. Union of India.

The Court also held that the prosecutions under Section 377 while they may be only in a few cases, such acts of hostile discrimination are constitutionally impermissible because of the chilling effect which they have on the exercise of the fundamental rights and held that merely because there may have been a low number of prosecutions cannot mean that there was no violation of rights. The chilling effect of criminal law that violates the rights of the trans community is particularly relevant not only in the context of Section 377 but in the context of other criminal laws as well. Section 36A of the Karnataka Police Act, which has now been amended, and the Telangana Eunuchs Act are examples of criminal laws which have been targeting the trans community. While there may not be many prosecutions under such laws, they are used as threats by the police to permeate fear and violence among the community. For the first time this chilling effect faced by sexual minorities has been recognized. What is fascinating is the manner in which not only Justice Chandrachud’s main judgement, but many of the separate judgements referred to the right to gender identity and other rights relating to one’s intimate life in an very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he or she is. It is interesting that these issues have been addressed by the courts because washrooms and toilets are the sites were current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

How is Privacy defined?
Privacy has been defined quite simply as the right to be let alone. An elaboration of privacy has been defined by the Court as the autonomy of the individual to make his or her personal life choices. It held that the notion of privacy enables the individual to assert his / her / their personality. Justice Nariman gives three parts to the this right – (i) the aspect of privacy that relates to the physical body, such as interference with a person’s right to move freely, surveillance of a person’s movements etc., (ii) informational privacy relating a person’s private information and materials and (iii) the privacy of choice which includes the rights and freedom to make choices of one’s most intimate and personal choices. This third prong of privacy would relate to the intersection between one’s mental and bodily integrity and entitles the individual to freedom of thought, belief and self-determination and includes the right to determine one’s gender identity. Family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and the fundamental freedoms under Article 19 entitled an individual to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to make choices on all aspects of life including what to eat, how to dress, or what faith to follow. What I found most relevant and moving was the observation of Justice Nariman that the guarantee of privacy as a fundamental right was important as it would protect it, despite the shifting sands of the majority government in power. It would protect non-majoritarian views, diversity and plurality which is so crucial to our country, especially in present times where we are witnessing such intolerance of differences.

Interestingly, it was also held that privacy has both positive and negative content. Not only does the right to privacy restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes a positive obligation on the state to take all necessary measures to protect the privacy of the individual.

The Horizontal application of the Right to Privacy:
Justice Kaul is the only judge who refers to the protection of the right against non-state actors. He held that there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors in addition to the need for protection of such information from the State. Privacy is a fundamental right, which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. This is particularly an important issue facing the trans community as they face a serious amount of violence at the hands of private actors – family members, employers, neighbours and the society that discriminates against them on the basis of their gender identity. This is a huge step and the development of the right to privacy against private persons needs to be developed judicially.

Conclusion and Learnings:
While we should celebrate and savour the gains of at this far-reaching judgement, what the learnings? As a  women’s rights and transgender rights activist and lawyer, I find this judgement points out the need for the gender rights movements to align with other social movements and the interconnectedness of rights. The privacy rights battle in the context of Aadhaar was a battle that the LGBT movement and the women’s rights movement had not engaged with. We are incredibly fortunate that we had a Court that rose unanimously in favour of declaring proudly the rights to sexual orientation and gender identity but this should only strengthen our resolve to work for the protection of rights across movements, of class, gender, caste, disability and religion if we want to strive to protect diversity and difference.

Although the decision was unanimous, there were six separate concurring judgments. A common thread runs across the findings given in all judgments that while the right to privacy is rooted in the right to life and liberty under Article 21, it is also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms under Article 19 of the constitution. It unanimously overruled the right judge decision in MP Sharma v. Satish Chandra to the extent that it holds that it indicates that there is no right to privacy and also overruled Kharak Singh v. State of UP to the extent that it did not give a positive finding on the right to privacy.

I would like to focus this piece on the manner in which the right to dignity has been the focus for the Court for the development of the right to privacy. This argument has special significance for the guarantee and protection of the rights of the transgender community. That the right to live with dignity includes the right to autonomy, to make decisions about one’s life choices was eloquently affirmed by Justice Dhananjay Chandrachud where he holds, “ …The best decisions on how life should be lived are entrusted to the individual. ……The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” He went on to hold that dignity permeates the core of the rights guaranteed to the individual under Part III of the constitution and privacy assures dignity to the individual.

Privacy ensures that a human being can lead a life of dignity by securing a person from unwanted intrusion. In the context of dignity, specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy. Justice Chandrachud went as far as to hold that the reasoning of the Supreme Court in Suresh Koushal vs. Naz Foundation and Others that only a miniscule minority was affected was flawed and held “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.”

The Court went on to hold that sexual orientation is an essential attribute of privacy and that the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. This settles the rights for the setting aside of Section 377 of the Indian Penal Code. Sexual orientation rights, sexual orientation is not limited to the gay, lesbian and bisexual groups but inextricably linked to transgender and intersex persons as well. Not limiting the recognition of the right to sexual orientation, the Court went on to hold that “The rights of the lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” It held that “Equal protection demands protection of the identity of every individual without discrimination.” This would most certainly include the right to one’s self-identified gender identity as upheld as an integral part of the right to life in NALSA v. Union of India.

The Court also held that the prosecutions under Section 377 while they may be only in a few cases, such acts of hostile discrimination are constitutionally impermissible because of the chilling effect which they have on the exercise of the fundamental rights and held that merely because there may have been a low number of prosecutions cannot mean that there was no violation of rights. The chilling effect of criminal law that violates the rights of the trans community is particularly relevant not only in the context of Section 377 but in the context of other criminal laws as well. Section 36A of the Karnataka Police Act, which has now been amended, and the Telangana Eunuchs Act are examples of criminal laws which have been targeting the trans community. While there may not be many prosecutions under such laws, they are used as threats by the police to permeate fear and violence among the community. For the first time this chilling effect faced by sexual minorities has been recognized. What is fascinating is the manner in which not only Justice Chandrachud’s main judgement, but many of the separate judgements referred to the right to gender identity and other rights relating to one’s intimate life in an very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he or she is. It is interesting that these issues have been addressed by the courts because washrooms and toilets are the sites were current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

How is Privacy defined?
Privacy has been defined quite simply as the right to be let alone. An elaboration of privacy has been defined by the Court as the autonomy of the individual to make his or her personal life choices. It held that the notion of privacy enables the individual to assert his / her / their personality. Justice Nariman gives three parts to the this right – (i) the aspect of privacy that relates to the physical body, such as interference with a person’s right to move freely, surveillance of a person’s movements etc., (ii) informational privacy relating a person’s private information and materials and (iii) the privacy of choice which includes the rights and freedom to make choices of one’s most intimate and personal choices. This third prong of privacy would relate to the intersection between one’s mental and bodily integrity and entitles the individual to freedom of thought, belief and self-determination and includes the right to determine one’s gender identity. Family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and the fundamental freedoms under Article 19 entitled an individual to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to make choices on all aspects of life including what to eat, how to dress, or what faith to follow. What I found most relevant and moving was the observation of Justice Nariman that the guarantee of privacy as a fundamental right was important as it would protect it, despite the shifting sands of the majority government in power. It would protect non-majoritarian views, diversity and plurality which is so crucial to our country, especially in present times where we are witnessing such intolerance of differences.

Interestingly, it was also held that privacy has both positive and negative content. Not only does the right to privacy restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes a positive obligation on the state to take all necessary measures to protect the privacy of the individual.

The Horizontal application of the Right to Privacy:
Justice Kaul is the only judge who refers to the protection of the right against non-state actors. He held that there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors in addition to the need for protection of such information from the State. Privacy is a fundamental right, which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. This is particularly an important issue facing the trans community as they face a serious amount of violence at the hands of private actors – family members, employers, neighbours and the society that discriminates against them on the basis of their gender identity. This is a huge step and the development of the right to privacy against private persons needs to be developed judicially.

Conclusion and Learnings:
While we should celebrate and savour the gains of at this far-reaching judgement, what the learnings? To this women’s rights and transgender rights activist and lawyer, this judgement points out the need for the gender rights movements to align with other social movements and the interconnectedness of rights. The privacy rights battle in the context of Aadhaar was a battle that the LGBT movement and the women’s rights movement had not engaged with. We are incredibly fortunate that we had a Court that rose unanimously in favour of declaring proudly the rights to sexual orientation and gender identity but this should only strengthen our resolve to work for the protection of rights across movements, of class, gender, caste, disability and religion if we want to strive to protect diversity and difference.

The Supreme Court judgment delivered by Justice KS Radhakrishnan Panicker and Justice AK Sikri on April 15,2014 was widely celebrated as a landmark judgment that upheld the right of trans people to self identify our gender as male, female or third gender irrespective of gender affirming surgeries or hormonal therapy. This right to self identify gender without medical interventions or certification is not unique and has international precedent in New York, Malta, Colombia, Argentina, Denmark, Italy, Ireland and Ecuador. The judgment was to be implemented in six months. As is typical in the world’s largest democracy the implementation never happened due to various departments and ministries of an apathetic government playing a lethargic game of ping pong with the judgment.

In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. Though it was passed unanimously in the Rajya Sabha, it disappeared into a Bermuda triangle situated someplace in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment put up a draft of The Rights of Transgender Persons Bill, 2015 and sought comments from the public to be sent by January 2016. Many trans led groups sent recommendations to this draft, none of which was taken into account by the Ministry when they drafted the more draconian The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2, 2016. Again, trans led groups and legal advocacy groups sent recommendations and some groups deposed before the Parliamentary Standing Committee in a bid to educate them.

On July 21^st, 2017, The Standing Committee on Social Justice and Empowerment chaired by the BJP Member of Lok Sabha, Ramesh Bais, and composed of 17 Lok Sabha Members and 10 Rajya Sabha Members, presented its 43rd report on the TG Bill 2016.

The 43^rd report on the Transgender Persons (Protection of Rights) Bill, 2016

My first reaction on reading the report was gagging, followed by laughter, frustration and sadness – in that order. Then, I kicked myself for holding onto a shred of belief that the Brahmanical state ever intended to extend any rights to trans or intersex people. Inspite of all our efforts to educate the Standing Committee, the report relies heavily on the imagination of trans people as Hindu mythical creatures like Ardhanareeswara. The report begins with “Eunuchs are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Their fortunes are determined to a large extent by their looks. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups. India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today.”

The committee believes that trans/intersex people [it is unclear who they are referring to when they use the derogatory term “eunuch”] are peculiar to the South Asian context. It’s amazing that they have missed out on the transgender tipping point in the West in-spite of the power of globalised American news! Clearly, the committee is also ignorant of the fact that in January 2016, the Karnataka government submitted to a high court Division Bench comprising acting Chief Justice Subhro Kamal Mukherjee and Justice Ravi Malimath that it will remove the word ‘eunuch’ from Section 36 A of the Karnataka Police Act. This follows a PIL that was filed by the Karnataka Sexual Minorities Forum which sought to declare Section 36A of the Karnataka Police Act as unconstitutional.

It is ironic that while using the derogatory term “eunuch”, the committee points out that the term “hijra” [used commonly as a term of self identity among many trans women] carries with it “an obvious sense of denigration”.

The report goes on to say “Eunuchs lived fairly secure lives working as domestic ‘girls’ in the homes of wealthy people and by performing during numerous ritual ceremonies. This role of eunuchs ended with the advent of the British rule and abolition of many kingdoms. Eunuchs were left with no means of supporting themselves. Hence, they exist in this pitiable condition in the Indian subcontinent“. Such conclusions lacking any sociological or historical basis wouldn’t pass muster even in the term paper of an undergraduate student in any of the universities in India. But clearly, the Ministry believes that the golden period of trans/intersex people in the subcontinent was destroyed by the British, instead of our collective disempowerment being the result of various factors like caste, patriarchy, state apathy, transphobia, lack of awareness,public prejudices etc in addition to the criminalising laws of the colonial empire and the nation state. In a couple of days, the Indian Brahmanical state will celebrate 71 years of independence, but still not take responsibility for the condition of its own citizens.

A summary account of the Ministry’s ignorant farce

• Definition of transgender persons

The ministry has pinned down the definition of transgender persons as –

(A) neither wholly female nor wholly male;
or
(B) a combination of female or male; or
(C) neither female nor male.

The portion of the draft bill which included a definition of “those whose sense of gender does not match with the gender assigned to that person at the time of birth and include trans-men and trans-women, persons with intersex variations and gender-queers” has been struck down by the Ministry. They cite the reason that any person could claim that their gender doesn’t match that which is assigned to them and the screening committee would have no way to judge or certify.

They claim that widening the scope of the definition would open it up to misuse! Why any person would fake being a trans person given that there are no real welfare schemes being proposed and given the many social disabilities that come with such an identity is indeed baffling. 

• Process of issuing gender identity certificates

A trans or intersex person would have to apply to the District Magistrate, who, on the recommendation of a district screening committee following a physical examination [constituted by the Chief Medical Officer,District Social Welfare Officer with 5 years experience working with trans communities/renowned person in the field of transgender welfare in that district, a Psychologist or Psychiatrist, a representative of transgender community and an officer of the appropriate Government to be nominated by that Government] will be certified only as transgender. On the basis of this certification, it is proposed that all the identity cards like voter id, adhaar card etc will be changed, effectively making us all carry the burden of being trans everywhere, all the time. Needless to say, this denies the right of trans people who identify within the binary our basic constitutional right to equality and liberty, a right that is upheld by the NALSA judgment.

The committee in the report, points out that a physical screening process is demeaning and in violation of the Supreme Court judgment and the constitution, but then, quickly backtracks and agrees with the ministry when the latter insists on this humiliating procedure as being necessary to prevent misuse.

“In case the person requires a re-issue of the certificate after gender affirming surgeries, on production of certificate from a competent Medical Officer regarding their SRS, the District Magistrate shall, suo-motu, issue them the revised certificate regarding their being either a trans-man or trans-woman.” On the second revision of the certificate, post surgery, the committee recommends that a physical examination need not be done again. The committee says transgender persons “no doubt, are reluctant to undergo physical examination in front of the District Screening Committee for obtaining a certificate of a transgender person in the first instance. The Committee wonder why will then the same person would apply again for a certificate and undergo the same procedure which he went earlier.” It is clear that the committee understands that physical examination is a gross violation of our bodily autonomy and that we would be “reluctant” to say the least. But still, like a school child who has no option but to agree with the authoritarian teacher, they continue to nod farcically and agree with all the regressive methods proposed by the ministry. Who would moreover, voluntarily go through this process a second time to change a certificate which is issued as “transgender only” to “trans man/ trans woman”? What practical sense does that make?

• Conflation of trans and intersex categories

The recommendation of the committee to rename the bill “The Transgender and Intersex Persons (Protection of Rights) Bill, 2016 was shot down by the Ministry which believes that “Transgender is an umbrella term which includes intersex persons also. Re-wording the title of the Bill would not serve any purpose“. The committee is quickly convinced by this view and agrees with the Ministry in the report. This, inspite of hearing a brilliant, in person deposition by Sampoorna working group team, intersex activist Chinju Ashwathi in which he patiently answered intrusive and inappropriate questions from the Parliamentary standing committee in December 2016. This, inspite of multiple attempts both in person and in writing to educate the standing committee on the differences and overlaps between trans and intersex categories.

• Definition of discrimination and grievance redressal

Though the standing committee has recommended that a definition of discrimination be included and its scope be expanded to include acts by public and private institutions and for a proper redressal mechanism to be put in place, the Ministry has cited the toothless, advisory body of the proposed National Council of Transgender Persons as the grievance redressal authority. To add insult to injury, it says “the mechanism of Indian Judicial system is robust for taking care of any violations of the Act either by a person or an Establishment.” There is a glaring absence of any laws to protect trans communities and justice under the current brahmanical judiciary is inaccessible for oppressed sections like dalits, adivasis, lowered caste/class muslims, Kashmiris fighting for self determination and trans people across caste. Given this scenario, the ministry is surely inhabiting a parallel universe to call the judicial system a “robust” one.

• Discrimination in employment

The bill says that no transgender person should be discriminated in any matter relating to employment, and provides for the setting up of a Complaint Officer in every establishment (with 100 or more persons). There was no response from the ministry on what the powers of the complaint officer would be or for bringing the private sector and unorganised sector under the purview of the bill. When asked why organisations under 100 member strength could not be brought under this provision, the Ministry opined that “It is not practically feasible for small establishments to designate a Complaint Officer. However, the mechanism of police system is robust in India for taking care of such grievances“.

The ministry thus callously brushes aside recommendations that have been feasible on paper for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. So clearly, the issue is lack of will and not feasibility. The mechanism of the police system in India is “robust” in only murdering trans women like Tara and criminalising and raping trans women. It seems like a cruel joke to call those very perpetrators our protectors.

• Retention of transgender/gender non conforming children with immediate family

The bill states that transgender children be allowed to stay only with natal families and that if the immediate family is unable to care for the child, on the order of a competent court, the child should be placed in a rehabilitation centre. The committee recommended that hijra families of adoption should be recognised as a lot of young trans people leave natal families due to violence and have only hijra families for support. The ministry however struck down the recommendation by claiming that “parallel systems” cannot be allowed to exist and that if this is allowed the bill will have no meaning for the transgender community! The ministry also further said ,”as long as Transgender Person is a child, he/she should not have a choice to reside other than the household where parent or immediate family reside as it would increase the chances of his physical and sexual abuse”. It would be naive to believe that the ministry is not aware that the most sexual abuse across genders are instances of incest within natal families. To claim that there would be increased chances of physical and sexual abuse in a matrilineal hijra system than in natal families is an improbable and ignorant hypothesis. Of course, there may be hierarchies and instances of violence within hijra families like any other, but to de-legitimise as “parallel systems” our families of choice that exist as sole survival, support systems when traditional ones have failed us miserably is brutal.

• Livelihood schemes and employment opportunities

When the Committee asked for specific schemes and programmes in the Bill which are being provided by the Government to support livelihood of the transgender persons, the Ministry replied that “it is not possible to put everything in the Bill as the same is derivative in nature”.

• Education, social security and health of transgender persons

The committee recommended a definition of inclusive education, acts that discriminate trans students in educational institutions, an obligation on the part of private educational institutions akin to Right to Education Act, 2009, educational programmes on trans issues, employment schemes, career counselling, review of medical curriculum and health insurance coverage among other things. However, there was a deafening silence from the Ministry to all these points.

• Criminalisation of begging

The bill states – “Whoever, compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The ministry voiced its concern that though “well intentioned”, this might be used to harass and criminalise trans people who beg of their own volition or due to lack of employment opportunities. The ministry however responded in an off handed manner that skill training will be given once the Bill is passed.

• Reservations under economically and socially backward category in employment and education.

The committee has mentioned this under the miscellaneous section at the end of the report inspite of it being clearly stated in the Supreme Court judgment that trans people should be considered socially and economically backward and must receive affirmative action. Several trans led groups had also asked for a caste based reservation within the proposed trans reservation to ensure the more marginalised among us are not further sidelined. But there was no comment from the Ministry for this point among many others like penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants, marriage, adoption, partnership rights etc.

• Proportionality in punishment for crimes

The bill provides for a punishment of only imprisonment for a term which shall not be less than six months but which may extend to two years and with fine for whoever denies trans persons public passage or access to public places, forces a transgender person to leave a house-hold, village or other place of residence or harms/injures/endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. In a broad sweep, the bill mentions a range of crimes,makes no mention of relief amounts or whether the crimes are bailable/non bailable. In comparison, The Criminal Law (Amendment) Act, 2013 details a wide range crimes against cisgender women and greater punishments. But this law will not protect even the trans people who identify as women if they are all certified as proposed by the committee as “only transgender”. Two days back, there were reports of a court letting off all four accused of gang raping a 19 year old trans girl in Wadgaon Budruk, Pune citing that neither sec 377 [under which the case against the accused was filed] which criminalises “carnal intercourse against the order of nature with any man, woman or animal” nor IPC 376 which is the anti rape law which mentions women as the victims/survivors is applicable to a victim/survivor who is trans identified.

The question then remains, why this farce?

Acknowledgements:
A condensed version of this article appeared in The News Minute here. Thanks to Gee Imaan Semmalar for sharing the full critique here.

Further Reading on Orinam:
Full text, community critiques and legal analyses of The Transgender Persons (Protection of Rights) Bill 2016: https://new2.orinam.net/resources-for/law-and-enforcement/trans-persons-protection-rights-bill-2016

Full text and community critiques of MSJE Rights of Transgender Persons Bill 2015: https://new2.orinam.net/resources-for/law-and-enforcement/msje-rights-of-transgender-persons-bill-2015

Full text and media coverage of Tiruchi Siva’s Rights of Transgender Persons Bill 2014: https://new2.orinam.net/resources-for/law-and-enforcement/rights-of-transgender-persons-bill-2014/

Full text, media and community reviews of the Supreme Court ruling on Transgender rights in NALSA vs. Union of India and ors. 2014: https://new2.orinam.net/resources-for/law-and-enforcement/nalsa-petition-tg-rights-india/

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

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

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

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

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

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

1. Definition of Transgender

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

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

2. Right to a Self-Identified Gender

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

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

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

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

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

3. Transgender Certificate

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

4. Reservations

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

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

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

6. Penalties in Trans Bill, 2016

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

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

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

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

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

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

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

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

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

FOOTNOTES AND REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[18] Para 11, NALSA.

[19] Para 12, NALSA.

[20] Para 129(2), NALSA.

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

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

[23] Para 129(5), NALSA.

[24] Para 129(5), NALSA.

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

[26] Para 129(8), NALSA.

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

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

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

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

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

[32] Para 55, NALSA.

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

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

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

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

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

It gives us pleasure that the Central Government, under your leadership, has introduced a special bill for the protection of people like us – transgender persons – in the parliament, especially given that in this, the early years of the 21st Century, most democratic nations do not take responsibility to improve the lives and livelihoods of those who do not conform to the binary standards of gender.

There are three issues that are important milestones in the history of struggle that the transgender community faced on the path to humanity, precede the introduction of the Transgender Persons (Protection of Rights) 2016 bill; and even form the basis of the bill. However, when we look at this TG 2016 bill and juxtapose it against the three points, I feel that we the transgender persons are surely, violently, and severely cheated of our rights.

In 2013, the transgender community came out united, vocally demanding for our rights as citizens of this nation, and demanded reservation for transgender persons in education, in employment. In Tamil Nadu, I too fought for the rights of my fellow trans brothers and sisters, even as I was attacked by the police, and even being arrested many times.

Secondly, we approached the Supreme Court to seek recourse for our community which was often oppressed by the government and its many agents and arms. Although the representatives of the people in the government couldn’t understand our pain and sorrow, the Supreme Court did, and gave members of our transgender community hope and reservation in the fields of education and employment, and provided us freedom in the form of the April 15, 2014 (NALSA) verdict. 

Thirdly, Mr. Tiruchi Siva hailing from Tamil Nadu, took in the import of the NALSA verdict of the Supreme Court, and understanding both its spirit and its full and exact intention, introduced a Private Members’ bill in the Rajya Sabha to protect and safeguard the rights of transgender persons. That bill was unanimously passed, without any opposition or amendments whatsoever, by all the representatives from all across the country

But the bill (TG Bill 2016) that has been tabled in the Lok Sabha, by the Minister of Social Justice and Empowerment, has completely ignored, and discarded these three points mentioned above, points that we the transgender community believe have enabled us to gain the rights assured to citizens of India.

I read the entire text of the bill tabled by your government. I noted that the demands of our community, the nuanced and empowering judgement of the supreme court, and the well-intentioned provisions of Tiruchi Siva’s bills have been wantonly discarded by those drafting the bill; this caused a serious mental agony and hurt to me.

The bill deems us humans, and grants us our humanity. I have but to laugh at this condescension. For a nation that opposed oppression and resisted the dehumanizing acts of colonial powers, and for a democracy that was born out of the blood of the people, it has taken 69 years to look at us as humans. How much longer will we have to wait for our rights? How much longer will it take for our demands for reservation and affirmation to be heard? When I contemplated this, the pain and sadness in my heart was expressed as a wry smile on my face. I offer this smile as a gift to your government.

The wise words of Dr. B.R Ambedkar – the father of our constitution and champion of the under privileged – rang in my ears when I read the provisions of the TG 2016 Bill. Babasaheb said, “to make horse with a broken leg compete with a healthy horse is a cruel injustice…” I gift you his words. For this bill perpetrates exactly that cruel injustice, it is an act of violence on the transgender community.

Finally:

We were treated as animals by society. Your government, in this the 21st century, recognized us as humans. Our thanks for that.

But grant us our full and just rights. Give us our dignity, and ensure our participation in education, employment and in governing ourselves, give us the reservations we ask for. Then the transgender community will happily, willingly gift you our carefree, just, genuine smiles and laughter. Allow us to smile, do not make us cry for rights again!

Thank you!

Yours truly,

Grace Banu

Click here for தமிழ் (Tamil)

Extension of deadline from Jan 4 to Jan 14, 2016: The Ministry of Social Justice and Empowerment (MSJE), Government of India, has sought comments on the Rights of Transgender Persons Bill, 2015. The full text of the bill is available here. Comments/suggestions, if any, may please be sent latest by 14th January, 2016, to Smt Ghazala Meenai, Joint Secretary (SD), Room No. 616, ‘A’ Wing, Shastri Bhawan, New Delhi-110001 (E-mail: commentstgbill-dosje@gov.in)