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.

14th April 2018 marks the 4-year anniversary of the decision of the Indian Supreme Court in National Legal Services Authority vs. Union of India which recognized for the first time the right to self-identify one’s gender as an integral part of the right to life under the constitution.
The theme of the conference this year is trans-formation of the law, which we have already begun to witness in India.  The recent right to privacy decision of the Supreme Court in 2017 reaffirmed that gender identity is part of the right to privacy and autonomy.  These victories sit side by side with ongoing challenges the trans community faces, as it has begun to use the law for empowerment and in the process trans-forming it. 2017 witnessed active voices raised against the Transgender Rights Bill for having failed to articulate the rights and concerns of transgender and intersex persons. The trans community in India and the world over has been accessing the courts for recognition of their legal identity, rights to marriage and family and challenging criminalization. Transgender rights have also been gaining recognition globally, with more jurisdictions passing gender identity recognition legislations and recognizing rights of the trans community. This conference seeks to learn lessons from such legal trans-formations for a better understanding of transgender equality in India.

There is no registration fees and attendees can register at the venue before the start of the conference.

Agenda and List of Speakers
Day – 1
9.30 am: Registration

10.00 am: Introduction and Welcome:Jayna Kothari,Executive Director, Centre for Law and Policy Research
Akkai Padmashali, Swatantra and Ondede

Panel 1: 10.30 am to 12:30 pm
Constitutional Trans*Formation

“The Right to Privacy judgement and its impact on Transgender Rights”: Anand Grover, Senior Advocate Supreme Court of India & Director, Lawyers Collective
“The Section 377 Challenge and the future” : Arvind Narrain, Arc International
“NALSA and after”: Akkai Padmashali, Swatantra and Ondede Trust

12:30 – 1:30 Lunch
Panel 2: 1:30 to 3.30 pm

Transforming the Courts

Trans*legalities: A Case Study of Court Records on the recognition of Trans* identities in Peru (2003-2016) : Prof. Carlos J. Zelada, Chair of the Law Department of the Universidad del Pacífico (Peru).
“Survey of Trans* Rights Case Law in India” : Jayna Kothari, Advocate, Karnataka High Court and Supreme Court of India, Executive Director, CLPR

“The Telangana Eunuchs Act Challenge: Experience as a Petitioner”: Vyjayanti Vasanta Mogli
Tea: 3:30 – 3:45 PM

Panel 3:45 to 5:30 pm

Trans* Families

Intimate Relations, Sexual Orientation and Gender Identity: Survey Evidence : Prof. Siddharth Swaminathan , Azim Premji University
Family Law and Transgender Persons: Transforming Family, Malavika Rakjotia, Advocate, Supreme Court of India
Trans experiences of Family. Uma, Jeeva

Day 2

Panel 4: 10.00 am to 12.00 Noon
Current Debates on Transgender Equality

The Future of Transgender Equality : Prof. Stephen Whittle, Professor of Equalities Law in the School of Law at Manchester Metropolitan University
Affirmative Action and Transgender Rights: The Experience with Caste: Prof. Sudhir Krishnaswamy, Azim Premji University

Lunch 12:00 pm to 1:00 pm

Panel 5: 1:00 pm to 3:00 pm

Right to Legal identity

Removal of Gender Markers: The Experience in Kenya: Audrey Mbugua, Transgender Education and Advocacy, Kenya
Legal Identity and Gender, Vikramaditya Sahai
Moderator: Anindya Hajra

3:00pm – 3:15pm Tea

Panel 6: 3:15 to 5.30 pm

Trans Lawfare: Global trends in Translaw movements
Third Gender or no Gender: Busiswe Deyi, South Africa
Trans Bill – Is this the Future? Or do we need a different Legislation: Aparna Banerjee, Amitie Trust
Gender Identity / Gender Expression – expansion of framework  YP plus 10 – Utopian framework for trans equality ?: Siddharth Narrain, Ambedkar University
Moderator: Jayna Kothari

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.

“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.

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.

Opening with these words from Tagore, acutely relevant in these times of escalating hate in the name of religion, the Honourable Justice Siddharth Mridul of the Delhi High Court went on to affirm the rights of transman Shivy Bhat to determine his own gender and to a life free of harassment and violence.

The ruling reaffirmed the core message of the Supreme Court NALSA judgement on transgender rights, while noting that the trauma, agony and pain faced by the community continues unabated.

“Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our Constitution. Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.  ”

This ruling adds to the Madras High Court 2014 ruling in Jackuline Mary in affirming that the scope of NALSA extends beyond those who identify as third gender and includes those identifying within the man-woman gender binary.

Congratulations to Shivy for his strength and conviction, and the team from Delhi-based queer feminist resource group Nazariya, their lawyers and allies. Details of Shivy’s case are on Nazariya’s website and in their press release appended to this post.

The full text of the judgement may be downloaded from Orinam here.

One only wishes that the Honourable Justice’s acknowledgement of the rights of individuals to determine their gender had been supported by his use of male gender pronouns to refer to Shivy.

NAZARIYA PRESS RELEASE
Press Release

Remarkable judgement by Delhi High court reaffirming the rights of a transperson
5th October, 2015

In the wake of a controversial case of illegal confinement of an adult transperson and withholding of his travel and identity documents by his family, Hon’ble Justice Siddarth Mridul of the Delhi High Court has passed a judgement withholding the rights of Shivy as a transgender in Shivani Bhat v State of NCT of Delhi and Ors on the 5th of October, 2015.

19-year-old transgender person Shivy, a citizen of India but a resident of the United States of America was illegally confined in his grandparents’ home in Agra when he came with his parents to visit them in the summer. While he was a victim of domestic abuse by his family even in his California home, on this visit to India his passport and green card were confiscated by his family and he was forced to remain in Agra under their control. Even under this duress, Shivy managed to contact queer feminist resource group Nazariya and other queer rights activists and request their help to come to a safe space in New Delhi.

Despite leaving a note informing his family that he was leaving of his own free will, his parents filed a missing person’s complaint with UP Police with the support of Delhi police, harassed, surveilled and threatened the activists who helped Shivy. Subsequently lawyers Menaka Guruswamy and Arundhati Katju, Shivy and the LGBT activists moved the Delhi High Court on September 22 seeking protection for Shivy, his friends and well wishers from harassment, intimidation and coercion, and to ask for the return of his passport and green card from his family.

In an outstanding judgment on the case dated 5th October, 2015, Hon’ble Justice Siddarth Mridul “The present petition highlights and brings to the fore the socio-economic marginalization and exclusion of those whose behavior is considered “inappropriate” by society. It clearly demonstrates that those who do not conform, render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded.

The judgement reads, “Despite the decision of the Hon’ble Supreme course in National Legal Services Authority v. Union of India and Ors: (2014) 5 SCC 438, the trauma, agony and pain, which members of the transgender community have to undergo continues unabated.
It further says, “Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our constitution. Gender identity and Sexual orientation are fundamental to the right of self-determination, dignity and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender. This view is buttressed by the landmark decision of the Supreme Court in National Legal Services Authority (supra)”

Upholding the rights of transgender persons, the judgement also says, “There is, thus, no gainsaying the fact that transgenders enjoy basic human rights including protection from violence and discrimination. They have the right to dignity and self-determination.”
The judgement also mentioned the false FIR lodged against Unknown persons supporting and helping Shivy in the time of help. Mr. Avi Singh, Additional Standing Counsel (Crl.) assured the court that Delhi Police does not intend to take coercive steps either against Shivani or against those who offered to support her.

Despite being served notice, there was no representative from respondent No. 2 the State of Uttar Pradesh but the court has issued a direction to respondent No. 2 not to harass or illegally confine anybody from within the territorial jurisdiction of this court except in accordance with the procedure established by law.

Shivy says that he is happy with the judgement and he can continue with his life and studies in the US now.

Rituparna Borah from Nazariya says, “I am elated with the judgement as it upholds individual freedom and liberty of gender identity and sexual expression. Hope this judgement helps other people who are still struggling and facing custodial violence from family.”

Lesley Esteves, a queer rights activist who was part of Shivy’s support network, said that “I would be proud to have a son like Shivy, unlike his parents Laxminarayan Bhat and Seema Rani Bhat who abysmally failed to support him. Instead they illegally dispossessed him of his documents and confined him against his will because of their severe transphobia and utter disrespect for law. They knowingly filed a false complaint against us with UP Police alleging that he was kidnapped, despite receiving a letter from him that he was leaving of his own free will. Effectively, his abductors tried to charge others with kidnapping, in order to cut off his support system in India. But the parents did not imagine that a court would step in to protect constitutional rights of Shivy and other queer people supporting him. They were firmly rebuked by the court today, when they were told by the judge that he would “end this bigotry today”. We are greatly encouraged by this judgment. The LGBTQIA movement will continue to fight for inalienable rights of transpersons when their families act criminally against them”.

For further questions, you may contact:
Rituparna +91-9999977272, Ritambhara +91-9818200807
Mail us at nazariyaqfrg@gmail.com

Thanks to Siddharth and Nazariya for making the presentation available here at Orinam.

The presentation may be viewed below.

If the presentation is not visible, click here

a) It is good that the judgment recognizes ‘transgender’ broadly to encompass various prominent regional and trans-regional communities/identities like Hijras, Kothis, Aravanis, Jogappas, Shiv Shaktis, etc., (pgs. 11, 56, 109, 110), and also at least *tries* to recognize the diversity and variety in these communities, which may not conform to a singular pre-set idea of what being ‘transgender’ means. This means that potentially it could serve as a strategic tool to advocate legal rights for and counteract gender/sexuality-based discrimination against a range of persons and communities, including gender variant LGB people. However, as several people have already pointed out, trans men and trans masculine spectrum people are mentioned far less (only on pgs. 35 and 61 so far as I could find), and one wonders whether the benefits of the judgment will reach out to them as much. Already in the media coverage, one can see how it has been largely taken to pertain to Hijras and their recognition as a ‘third gender’; and at several points the judgment almost conflates ‘transgender’ with ‘hijra’, e.g. the repeated use of the phrase ‘hijra/transgender’ (pg. 128).

b) That brings me to the question of gender identity and recognition. The judgment has been much lauded for upholding “transgender persons’ right to decide their self- identified gender”, whether as male, female or third gender/transgender, and for asking states to grant such legal recognition (pg. 128) – without mentioning a requirement for surgery or hormones at least at that precise part of the judgment. However, the judgment is very unclear, confused and even conflicted on the procedures for granting such recognition, and contradictorily veers between gender self-determination and biological essentialism. At one point it cites the Argentina model which allows for self-identification without requiring medical certification, a model which has been lauded by many trans* activists. Yet at other points it seems to suggest that ‘psychological tests’ would be necessary (pgs. 45, pg 84), which is potentially very problematic given the constraints of how diagnosis of gender dysphoria works in psychiatry and medicine, as it is often based on binary and linear models of identification, which works for some but not other trans/gender variant people. At one point it even seems to stipulate the biologically essentialist requirement that surgery to change ‘physical form’ would be necessary for recognition as (trans) male or female, even if not for ‘third gender’ (pg. 108, “we are of the opinion that… a person has a constitutional right to get the recognition as male or female *after SRS*, which was not only his/her gender characteristic but has become his/her physical form as well”, my emphasis.) Since it passes the onus for legal identity recognition on to central and state governments, it seems likely that different states will interpret it in their own ways and will fix the procedures that they deem fit, which probably means that procedures will be haphazard, will vary between states, and that there will probably be quite a bit of gender policing by state bureaucratic mechanisms (determining who can be third gender, who can be recognized as transitioned male or female, etc.) – and requirements like surgery and hormones might well come back (which are unavailable to many trans* people, and many don’t want them). This also means that trans*/gender variant people will have to negotiate various bureaucratic mechanisms and arbitrary rules regarding gender recognition in order to get the legal i.ds they would likely need to access welfare measures like reservations in jobs or education.

c) Lastly, continuing on the topic of procedure, on page 129 the judgment defers to the Expert Committee constituted by MOSJE (Ministry of Social Justice and Empowerment) for suggesting measures and recommendations, which probably means that the MSJE report  will provide the concrete procedural guidelines that are missing in the SC judgment. Now, the MOSJE recommends on pg. 34 of its report that ‘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’, and these state-appointed committees will comprise a psychiatrist, social worker, two transgender representatives, etc. Again, this suggests that the “transgender persons’ right to decide their self- identified gender” as male/female/third will not be accessible easily after all, and will be subject to the requirement to ‘prove’ one’s gender identity to the bureaucracy as per its rules – the MOSJE rejects the simpler option that one could just submit affidavits by oneself and one’s friends as proof of one’s sincerity and honesty in declaring their gender. Again, this suggests there will be quite a bit of identity policing, and requirements like surgery/hormones may return especially if one wants legal recognition as the ‘opposite’ gender. Also, as my friend and sister Sumi (secretary, Moitrisanjog Society Coochbehar) pointed out, there will probably be a lot of petty politics and cut-throat competition regarding which transgender people get to be on these certifying committees, and people will probably accuse each other of being ‘fake hijras’ or ‘part-time TG’ and thus not really transgender, and so on, just like what has already happened in the case of TG funding in HIV-AIDS. But these are some inevitable perils of the biopolitical recognition of identity as the basis for rights and citizenship; one can only hope that the political horizon of trans*/hijra/kothi/FTM/butch (etc.) communities will hopefully go beyond such biopolitics, even as we stake our rightful claim to identity-based rights and recognition.

For more analyses of the NALSA vs. Union of India 2014 judgement, visit https://new2.orinam.net/resources-for/law-and-enforcement/nalsa-petition-tg-rights-india/