The Transgender Persons (Protection Of Rights) Bill 2018: When inclusion discriminates...

When the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill 2018 (TGPB) with a voice vote earlier this week it was felt this will change the lives of nearly 4.9 lakh trans population in the country. After all the name of the Bill suggests it is meant to protect the community's rights. Why then is the community outraged and protesting the much-awaited legislation? 

“The problems began at the draft level in the way the Ministry of Social Justice and Empowerment worded it in 2016,” explains well-known trans community activist Gauri Sawant, who was one of the petitioners in the National Legal Services Authority v. Union of India (NALSA), 2014 in the Supreme Court. “The initial draft itself showed a poor understanding of gender identity, its articulation and expression. Why else would the bill have deliberately chosen such an offensive way to define trans people? Dehumanisingly it said a transgender person is 'someone neither wholly male nor wholly female.' Obviously there is anger,” says the Mumbaikar who was the face of India's first trans-inclusive ad campaign for Vicks.

Community outrage, a litany of letters condemning such a definition and the resultant recommendations of a parliamentary standing committee saw the TGPB correcting its definition to include diverse gender identities says Sawant who adds: “But the TGPB in its current avatar shows how society and the government want to changing little about the way the community is treated and/or perceived. Once they tinkered with semantics – that too after much prodding - the people who drafted the TGPB felt they'd done enough and lapsed back into age-old stereotypes.”

Identity vs. confusion

One of the key contentious issues flagged by the community about the Bill's current avatar is the insensitive trampling of transpeople’s self-identified gender expression by the Bill's proposal to set up of a five-member District Screening Committee with a medical officer and psychiatrist on-board to certify whether a person is transgender or not. Sawant's fellow petitioner (in the NALSA case) and hijra rights' activist Zainab Patel insists this is in direct violation of the Supreme Court’s orders in the NALSA judgement, 2014. “The court clearly underlined the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate about sex-reassignment surgery (SRS),” she says and adds, “In fact, the judges had clearly called any insistence for proof of SRS for declaring one’s gender as immoral, inhuman and illegal.”

Patel also invokes the preamble to the Constitution of India which mandates justice (social, economic, and political) and equality of status. “The first and foremost right we all deserve is Right to Equality under Article 14. The Constitution provides this fundamental right and tolerates no discrimination on the grounds of sex, caste, creed or religion while guaranteeing it to each and every citizen. Yet transgender persons/hijras continue to be ostracised. The TGPB which is supposed to help ameliorate this problem makes it worse.”

A view which finds strong echo with the National Transgender Thirunangai Kinnar Hijra Association. The body has not only rejected the TGPB in its current avatar but called it “authoritarian and draconian.” It has demanded: “The TGPB must recognise that gender identity goes beyond the biological; gender identity is an individual’s deep and personal experience. It need not correspond to the sex assigned at birth. It includes the personal sense of the body and other expressions.”

If not beg, what?

The Bill does not provide for employment opportunities through reservations, disregarding the directions of the apex court in the NALSA judgement which asked the state “to treat them (trans people) as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”

What is worse while refusing to help create job opportunities where they can earn a living the TGPB criminalises and threatens to target trans persons begging for sustenance under anti-beggary laws. Sawant asks if the state has created equal opportunities of employment since the apex court ruling four years ago to help the community. “In Marathi we have a proverb - Aai jevayla det naahi aani baap bhik maagu det naahi (The mother won't feed me and the father won't let me beg). That's what the TGPB reduces the trans community to,” she says and adds, “This is not about activists like me or Lakshmi (Lakshmi Narayan Tripathi) who in a sense live a privileged life because of our education, awareness and socio-economic circumstances but abject poor trans people who have no support system at all. You know even if they have the money and show it to restaurant owners they are not allowed to come in and even have water in so many places. Such draconian threats of invoking anti beggary laws disregard the lived realities of transgender persons for whom begging often is the last resort. As it is the community faces hate crimes, gets abused, harassed and beaten up by police/hoodlums who want their money, sexual favours or both. The TGPB will arm such elements with brazen impunity which will go unquestioned.”

Save from saviours

Many trans persons are abandoned by the family which is extremely hostile to them because of their orientation/lifestyle Sawant warns: “Forceful rehabilitation will put such individuals in unsafe abusive situations pushing them to self-harm/suicide. Is this what state intervention should be doing?” She wonders why only hijras and trans people begging is a problem. “Will this government call Godmen and Godwomen who seek alms and patronage also beggars and stop them? The tradition of going for singing/dancing badhai on the arrival of a newborn or at marriages is older than this nation state. How can that be taken away on a whim?”

Laughing at how the TGPB says they can't beg if efforts to find them an alternate way of living are on Sawant wonders why the Bill infantilises the community and chooses to put the carriage before the horse. “Till we have the right equal employment conditions, this will continue. Also, if a boy from a Brahmin Purohit's family pursues engineering and becomes an engineer, does the government go after him with a stick if he conducts pujas/rituals in the weekend as a family tradition?”

Incidentally, such detention of the marginalised in the name of rehabilitation has been criticised by the Delhi High Court in Harsh Mander v. Union of India, 2018, declaring provisions of the Bombay Prevention of Begging Act, 1959 as unconstitutional on grounds that it violates Article 14 (equality before the law) and Article 21 (right to life and personal liberty), and affects the rights of persons who have no other means of sustenance but to beg. 

Less than cis-gendered?

Shockingly the TGPB treats rape/sexual assault of transgender persons as different from the cis-gendered. “This is severely problematic given the high incidence of such attacks on transpersons where the police and society rarely support the victim,” says Patel. “The Indian Penal Code Sections 375 and 376 only consider that a forceful penetration of a woman by a man as rape. The community hoped the much-needed, specific provisions or punishments to deal with rampant sexual violence, rape and assault of trans people will be addressed but it hasn't.” 

For the record the TGBP states “whoever harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” 

Patel points out how this itself encodes discrimination by providing lesser punishment for sexual violence against trans persons, as against seven years’ imprisonment awarded in case of sexual assault on cisgender women. “So the TGPB is clearly emphasising we are lesser. Also since it does not define the acts that constitute sexual offences, it is going to be complicated for transgender persons to both report such crimes and access justice.” 

Sawant feels the unkindest cut in the TGPB comes from the denial of civil rights like marriage, civil partnership, adoption and property rights that cis-gendered enjoy. As someone who has assumed guardianship and responsibilities of three abandoned girl children born to sex workers she laments what she calls a cruel move. “Motherhood is a lived reality and not only a biological thing. Why can't I adopt my daughters officially when they call me aai and that's the way I feel about them?” she says moist-eyed.

Rajya Sabha hope

Transgender persons have faced prejudice, discrimination and disdain for years, and it is dehumanising to deny them their dignity, personhood and, above all, their basic human rights. TGPB in its present form continues to push them into obscurity, making a mockery of their lives and struggles by failing to secure for them their constitutional rights say activists who feel there is still time to reconsider. “We will lobby to see that that the TGPB is brought up to speed with NALSA judgment to ensure the full realisation of transgender persons’ fundamental rights when it comes to the Rajya Sabha. I will personally reach out to key people in the government to ensure this is followed up and pushed through,” says Lakshmi Narayan Tripathi (the first transgender person to represent Asia Pacific in the UN in 2008) who is seen as close to the current dispensation as the Mahamandeleshwar (head) of the Kinnar Akhada. 

Irrespective of who gets it done, the TGPB's current avatar needs amendments. The sooner, the better...

PROBLEM OR SOLUTION?

Against principles of self-identification

The 2014 judgement said transgender persons had the right to gender self-identification but the TGPB takes this right away

No reservations:

In the NALSA judgement, the state and centre were asked to extend reservations to trans people in education and public employment. TGPB doesn't mention.

Criminalisation of begging

TGPB criminalises begging and prescribes 6 months to 2 years in jail for anyone who “compels or entices a transgender person to indulge in the act of begging.”

No protection against rape/sexual assault

The TGPB does not provide punishment for sexual violence, rape and assault of trans people on par with the cis-gendered

No civil rights on par

The TGPB denies civil rights like marriage, civil partnership, adoption and property rights that cis-gendered enjoy.

THE DANGER IS REAL...

• In June, following DNA's front-paging the plight of transwoman Gauri Sawant who was being asked for intrusively private details of her sex reassignment surgery for an insurance policy to be drawn, the company came around and agreed to give the same without seeking the said details.
• Recounting the incident, Sawant spoke of how she would not be able to fight such infringement of privacy if the TGPB became law.