By Sourya Banerjee
Sourya Banerjee is the National Head of the Legal Reform vertical at One Future Collective.*
Photo by Shabu Anower on Unsplash
The amusing aspect of legislative endeavours in India is that laws are often drafted without rigorous research or consultation with stakeholders, and as a result the entire process ends up being similar to throwing your garbage behind your house – you may not see the garbage, but the the stink still exists. The Transgender Persons (Protection of Rights) Bill, 2016 is a similar draft thrown about to make the Government feel good about itself.
The history behind the current Transgender Persons Bill
In December 2014, Mr. Tiruchi Siva, a Member of Rajya Sabha from the Dravida Munnetra Kazhagam (DMK), introduced the Rights of Transgender Persons Bill, 2014, as a Private Member’s Bill. On April 24, 2015, in what was an extremely rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha. Instead, the Government, in its wisdom, decided to get its own Bill – The Rights of Transgender Persons Bill, 2015, which was put up for public comments in December 2015. The 2015 Bill, though seemingly based on the 2014 Bill, did away with provisions on Transgender Rights Courts and the National and State Commissions. The Government consulted civil society activists and in April of 2016, sent a new draft (The Transgender Persons (Protection of Rights) Bill, 2016) to the Law Ministry, which approved it in July, leading to it being introduced in the Lok Sabha in August. It is unclear why the Government decided to water down the 2014 Draft Bill, but not only was the 2016 Bill devoid of many critical features of the previous Bill, it also completely disregarded all existing discourse and resources — the NALSA judgment (WP No.400/2012 filed by National Legal Services Authority (NALSA) vs Union of India), the Expert Committee Report, and public comments (which the Government had invited and claimed to have considered). The 2016 Bill was then referred to a Standing Committee.
Report of the Standing Committee on Social Justice and Empowerment
The Standing Committee on Social Justice and Empowerment (2016-2017) presented its Forty-third report on The Transgender Persons (Protection of Rights) Bill, 2016 to the Lok Sabha on the 21st of September, 2017. The Committee held five sittings to examine the Bill, and relied upon oral and written submissions of a number of NGOs and experts in the field, including Vidhi Centre for Legal Policy, Amnesty International India, Dr. Kaveri Rajaraman, and Lawyer’s Collective among others, and informed the Lok Sabha of the numerous flaws of the 2016 Bill. The recommendations of the Standing Committee have also currently been sent to the Ministry of Social Justice and Empowerment (MoSJE). Whether the Government accepts the changes, or moves ahead to vote on the Bill in its current state, still has to be seen.
Key criticisms of the proposed Bill
Some of the major critical flaws (the list being non-exhaustive) of The Transgender Persons (Protection of Rights) Bill, 2016, pointed out by the Standing Committee, as it currently stands, are:
- Definition of Transgender: The Bill under Section 2(i) defines a Transgender Person as;
(A) neither wholly female nor wholly male; or
(B) a combination of female or male; or
(C) neither female nor male; and
whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers
The use of the words “neither wholly female nor wholly male” is regressive and does not align with internationally acceptable definitions or the judgement of the Supreme Court in the NALSA judgement. The Standing Committee noted that the proposed definition of transgender persons appeared to be two-fold; the first part focuses on ‘biological sex‘, as mentioned in sub-clauses (A) to (C), while the second part focuses on ‘psychological sex‘. The NALSA Judgement explicitly laid emphasis on the ‘psychological test‘ and not ‘biological test‘, wherein the psychological mindset of the person has to be given primacy over the binary notion of gender as masculine or feminine. In fact, the jurisprudence in the last thirty years from most parts of the world has rejected the emphasis on ‘biological sex‘ and has given way to self-identified gender for the purpose of legal recognition.
Thus, any definition of ‘transgender person‘ ethically should only relate to a person’s self-identified gender identity and not to birth-ascribed biological sex. Further, the phrases ‘neither wholly female nor wholly male’, ‘a combination of female or male’ and ‘neither female nor male’ are unscientific and primitive, and are based on the underlying assumption of ‘biological determinism.’ This argument wrongly suggests that all persons are born with innate and immutable biological attributes, i.e., chromosomes, hormone prevalence and internal and external sexual anatomy. It further fails to recognise that many persons are born with ambiguous or atypical sexual organs, whether external or internal, and identify themselves as male, female or transgender (generally known as persons with intersex variation).
This becomes even more alarming in the light of recent changes to the Wage Code Bill. The Labour Ministry, keeping in mind the NALSA judgement, had started working on the Wage Code Bill, which was drafted under an exercise to rationalise the country’s forty-four labour laws into four codes covering all the regulations pertaining to wages, industrial relations, social security and safety, and health and working conditions. However, the part of the Labour Ministry’s draft law that sought to codify wages and protect transgender workers from discrimination has been shelved on account of reservations expressed by the Law Ministry. Apparently, as reported by The Hindu, the Law Ministry objected to the presence of specific protections for transgenders under the Wage Code as, according the Law Ministry, the term “persons” under the General Clauses Act would cover the term “transgenders”. This explanation does not stand given that it argues against the need for specific protection of minority groups in the light of general allowances. The fact that this law is required despite the presence of Article 15 under the Constitution of India, 1949, speaks volumes in itself – generic broader provisions cannot always protect minority rights, and specific, detailed legislation and clauses are always the best route to secure rights.
- Discrimination and Remedy: Despite having an entire section dedicated to the protection of transgenders against discrimination, the Bill does not define what constitutes discrimination. It is an open secret that transgender persons have historically faced a range of discriminatory practices by the State and citizens which go beyond the categories enumerated in Articles 15(1) and 15(2) of the Constitution. For example, transgender persons routinely face discrimination in the access to education, employment, healthcare, and housing. The Standing Committee was of the view that, without a definition of ‘discrimination’ for the purpose of this Act/law, it would be almost impossible to prohibit such practices by future administrations. In this regard, the Standing Committee had suggested that the Government would do well to incorporate the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity into the Bill.
Secondly, even if discrimination is determined, the Bill does not specify a remedy available to the citizen. Do they approach the High Court directly under Writ Jurisdiction or by virtue of having a right via a special act? Would they have a quasi judicial body to regulate matters? Can they file a simple Declaration Suit under Section 9 of Code of Civil Procedure or can they choose remedies under Protection of Women from Domestic Violence, 2005? These are some unanswered questions.
The transgender community is one of the most marginalized communities in the country as they do not fit into the stereotypical categories of gender. Consequently, they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, and lack of medical facilities. The discrimination based on their social standing and gender makes the transgender community one of the most disempowered and deprived groups in Indian society. This discrimination is rooted so deeply in this country that even our dictionaries recognize the word ‘hijra’ (transgender in Hindi) as an abusive slur. Even if all the changes suggested by the Standing Committee are accepted, and the Bill is passed, it would still not spell the end to the problems faced by the community. Section 377 of the Indian Penal Code, 1860, still acts as a major hurdle in providing equality of access to the transgender community, and given its current wording and lack of sensitivity amongst the police and judiciary, there is little scope to prevent discrimination and misuse of the law resulting in the mistreatment of transgenders.
It is also important to note that the Bill focuses solely on transgender rights and does not account for gender identities that go beyond the binary or transgender categories, including but not limited to agenders. The legislators’ lack of understanding of the transgender community’s plight is perhaps best summed up in the following quote by Justice K.S. Radhakrishnan (NALSA Judgement).
“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”
The Government has the duty to ascertain that people are not discriminated against because of their nonconformity to established social norms and gender constructs.
*One Future Collective is the outreach partner for the Trans Diamond Festival. This article series, across platforms, is a result of the ongoing effort of Make Room India and One Future Collective to discuss issues of the transgender community and build an ecosystem towards strengthening the trans rights movement in India.
Photo by Shabu Anower on Unsplash