The Gender Security Project
#StopTransBill2019: Everything you need to know about the bill
The Trans Bill 2019 is likely to be passed in the upper house of the Parliament in India. However, a mere reading of the bill shows how discriminatory, violent, and antagonistic it is to the transgender community. The bill effectively sets back the judiciary’s endeavors in recognizing the rights of transgender persons.
Over the course of close to two years, there have been protests against a piece of legislation in India that has aimed at addressing the transgender population in India. In under five years of a pathbreaking decision by the 2014 Supreme Court of India that recognized and upheld non-binary gender identities, events transpiring presently suggest a complete reversal of the epoch-making decision.
NALSA v. Union of India
The Supreme Court of India recognised the rights of the transgender population in India, and established basic measures to secure their rights by mandating the prohibition of discrimination, by recommending the creation of welfare policies and reservations for transgender persons in educational institutions and jobs, and by acknowledging and affirming their right to self-perceived and self-determined gender identity as guaranteed by the Constitution of India regardless of whether sex assignment surgery is performed or not. This decision was preceded by path-breaking precedents of the Supreme Court (See: Puttaswamy and another v. Union of India, Navtej Singh Johar v. Union of India).
The 2014 Bill
Even as the decision in the NALSA case was pending, an Expert Committee had drawn up a report that it published in January 2014, following consultations with the transgender community in August 2013. Following this, a private member’s bill was introduced in the Rajya Sabha, by Tiruchi Siva, who belonged to a party called DMK. This bill, The Rights of Transgender Persons Bill (No. XLIXC-C) of 2014 was met with a request for withdrawal by the government, on the grounds of various anomalies. However, since the opposition government had a majority, the bill was passed in 2015.
Following this, the bill was subject to tremendous changes when the government came up with a version of its own, dispensing with several provisions in the original draft.
A round of recommendations were received by representatives from the transgender community, and the bill was placed before the Law Ministry. In 2016, the bill was introduced again in the Lok Sabha, and was claimed by a member to have the capacity to extend constitutional rights and end discrimination against transgender people, while ensuring that they would lead lives of dignity. The 2016 bill was discussed in parliament that year, even as Tiruchi Siva refused to withdraw the earlier bill.
The 2016 bill was called out for having several regressive provisions, and was met with protest and opposition from the transgender people in India. A standing committee was called to examine the bill, and it submitted a report in July 2018. The Lok Sabha tabled and passed a newer version of the bill with 27 amendments, in December 2018. The bill was met with opposition and criticism because it did not acknowledge the recommendations of the standing committee and the suggestions of the transgender community. Nevertheless, the bill lapsed.
In July 2019, the bill was reintroduced by the Minister of Social Justice and Empowerment of India, T C Gehlot. In August 2019, the bill was passed by a voice vote in the Lok Sabha. It is now being considered at the Rajya Sabha.
Even though the 2019 bill removed the criminalization of begging by trans persons and removed medical screening committees from the 2018 version, the 2019 bill remains a direct affront to the rights of transgender people. First, it fails to comprehend the scope of gender and sex, and conflates intersex persons with transgender people – and this is inappropriate because not all intersex people identify themselves as trans people.
Second, the bill presents a humiliating process wherein a transgender person is expected to submit an application to the district magistrate in order to be legally recognized as transgender. In effect, this bill flies in the face of self-determination and dilutes the rights of the community it claims to serve. Third, the bill does not offer any affirmative action for trans, intersex, gender non-conforming people in any form of public services and utilities. The bill does not address enabling access to education, work, health care, and other related areas of support for transgender people, and does not acknowledge or address the prevalence of both structural and cultural violence against them.
Fourth, The bill also indicates that the court can decide where a trans child will live – whether with the biological family or with the community family. This is also a major human rights violation in that it goes completely against the grain of self-determination of one’s living choices, and vests in itself the authority to decide on a child’s residential rights.
Furthermore, the bill constitutes a committee at the national level, and indicates that they shall comprise a maximum of five representatives from among the transgender population. This is tokenistic at best and is an unfair representation of the population.
Most importantly, For a bill that claims to prioritize the interests of the transgender people, it does very little to address grievous crimes. It punishes rape of a transgender person with merely six months imprisonment (as opposed to life imprisonment for the rape of a woman). An act endangering the life of a transgender person is punishable with a maximum of two years in prison. This band of punishments, under the Indian Penal Code, are typically provided for petty crimes – which only suggests that the level of seriousness with which crimes against transgender people are considered is poor, at best.
Passing the Trans Bill would mean that these provisions would come into effect, and automatically, structural violence against transgender persons would be fomented. This is both dangerous and disrespectful of basic human rights. That the community’s basic interests themselves remain disregarded by the bill also goes against the Constitutional guarantees of fundamental rights.