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.

There are a number of steps required to be passed before the Rights of Transgender Persons Bill can become a law.  A Bill has to be passed by both Houses of Parliament and obtain presidential assent before it becomes an Act. At present, the Bill has only been passed by the Rajya Sabha. Following this, it  will be sent before the Lok Sabha for consideration and passing. The Lok Sabha can make amendments to the Bill after which it will have to be passed by the Rajya Sabha again before it goes before the President for assent.

Nevertheless, the contents and the implications of this bill are far reaching and a primer on what the bill states is been given below.

Whom does it cover?

Clause 2 (t) defines ‘transgender person’ as 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.

What are the rights guaranteed under the Bill?

Chapter II of the Bill looks at Rights and Entitlements across eight clauses. Most deal with substantive rights such as the right to equality, life, free speech, community, integrity, family, along with rights against torture and abuse. One clause specifically provides for transgender children.

Education, Employment and Social Security and Health are then covered in successive chapters. The chapter on education mandates the Government to provide for inclusive education for transgender students. It also places an obligation on the Government towards ensuring participation of transgender persons in adult education programmes.
With the employment chapter, the Government is mandated to formulate schemes for vocational training and self-employment of transgender persons. The chapter also prohibits discrimination against transgender persons in any establishment, thus encompassing private actors.

In the social security and health chapter, the Government is asked to promulgate a range of schemes for promoting the rights of transgender persons to an adequate standard of living. These include schemes for community centers and access to safe drinking water and sanitation. Health care facilities are to be provided in the form of separate HIV clinics and free sex reassignment surgery. Transgender rehabilitation programmes, particularly in the areas of health, education and employment are also provided for. Measure to promote cultural life are also to be undertaken, which include sponsoring of transgender film, theatre, music and dance festivals.

There is a limited provision for reservations in this chapter as well. Government educational institutions, as well those receiving aid from the Government, are asked to reserve two percent of the total seats in each course for transgender persons, while Government establishments are asked to provide for the same percentage of reservation in vacancies. As far as the private sector is concerned, the Bill asks for the Government to provide incentives to employers to ensure that at least two percent of their work force is comprised of transgender persons within a five year period from the commencement of the Act.

Who are the duty bearers under the law?

For most provisions, it is the State. The term “appropriate government” is used throughout the act, which encompasses establishments owned or financed by the Government. Private persons are included within the legislative scheme in a clause prohibiting discrimination against transgender persons in any establishment. An establishment is defined under the Act to include a range of authorities including companies, firms, etc that provide certain services. These services are defined broadly to mean services provided by members of any profession or trade, which includes services relating to banking, education, health, entertainment, etc.

What is the enforcement mechanism?

The Bill sets up a number of authorities and forums. Chapter VII provides for National and State Commissions for Transgender Persons, echoing existing bodies such as the National Commission for Women. The mandate of these Commissions are largely in the nature of inquiry or recommendations, relating to inconsistencies in the application of the law or violations of rights of transgender persons. Commissions are given the powers of a civil court with respect to their process of operation – summoning witnesses, receiving evidence, etc.

For adjudicating suits filed on behalf of a transgender person regarding infringement of their rights based on their identity under this or any other law, special transgender courts are prescribed under the law. There are to exist at two levels. First, it is optional for a court in each sub-division to be designated as a Special Transgender Rights Court for hearing matters related to transgender persons alongside its other matters. Second, it is optional with respect to each district, and compulsory with respect to each city with a population above 10 lakh, to provide an exclusive Transgender Rights Court.

Finally, Chapter IX deals with Offences and Penalties, and provides for treatment of discrimination by establishments as a criminal offence as opposed to a civil one. Further, there is penalty by way of imprisonment for upto a year for hate speech.