Transgender bill awaits presidential nod to become law but betrays the very community it aims to protect

On 26 November, 2019, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019, ignoring opposition from the transgender community and
demands from multiple MPs to have the bill reviewed and amended by a select committee.

The process of bringing about legislation to protect the rights of the transgender community started with Tiruchi Siva’s private member's bill in 2014, which gave the community real hope of positive change. The government shelved this bill in favour of a series of badly written bills that have retracted all the assurances and claims that were previously promised.

Trans community in India miffed by drawbacks in new law aimed to protect them. Getty Images

The trans community resisted these bills and sought to have its voice heard. We resisted on the streets, on social media, and on every platform, we could find, in an attempt to correct the misguided provisions of the bills. We were ignored. The bill was still passed in the Lok Sabha in December 2018. There was a brief moment of hope when the
bill lapsed due to the impending general election. But that hope proved shortlived.

On 5 August 2019, the Lok Sabha passed the Transgender (Protection of Rights) Bill, 2019. The bill not made available to the public and affected communities until the day it was due to be tabled in the Lok Sabha. The bill was passed by the Rajya Sabha last week and now awaits the president’s assent before it becomes law.

The government has projected the bill as a progressive measure that aims to uplift an oppressed community. However, the reality is that it contains several measures that will work to the detriment of the people it hopes to protect.

Rachana Mudraboyina, a trans activist described it as the entire process as rightly said, "A convolution of a law that would do nothing for the trans community and would rather snatch away the bare minimum that existed.”

Failures of the law

To begin with, the bill conflates transgender persons and intersex persons into one category. This one-law-fits-all approach doesn’t particularly serve any community well.

Secondly, the definition of the term ‘family’ in the bill fails to recognise the realities of the Hijra/Aravani and other cultural communities, who because of societal and familial ostracisation, often live in gharanas. The definition of ‘family’ therefore needs to be more inclusive to recognise such households as ‘families’ too.

The bill places an obligation on the government to take steps to rescue, protect, and rehabilitate transgender persons. This provision is unclear and may be misused to undermine the autonomy of transgender persons and hijra households. Further, despite the NALSA 2014 directives to provide for reservation in education and employment for transgender persons, the bill is completely silent on the issue, which has been a long-standing demand from the community.

In addition, none of the provisions regarding education or health benefits places any binding obligations on any state bodies.

The bill leaves it to the bureaucrats to frame rules to prescribe the procedure for grant of a certificate of identity to someone as a person with a gender different from what they were assigned at birth. Thus, at this stage it is not clear what this procedure will be, leaving authorities to create rules that can heavily scrutinise transgender persons.

The Supreme Court’s 2014  National Legal Services Authority v. Union of India judgment categorically says that sex reassignment surgery is not a prerequisite for identifying as male, female, or transgender. This provision is in complete violation of this judgment.

There is an inadequate representation of transgender persons in the proposed National Council for Transgender Persons since only five members will be from the community. And the procedure of selection is nomination, which gives the Central government excessive control over the composition and functioning of the council. This is likely to lead to only powerful voices within the community being heard and dissenting voices being further marginalised.

The bill creates a different scheme of punishment than the Indian Penal Code, 1860 and other acts such as the Bonded Labour (Abolition) Act, 1976. In many cases, this results in lesser punishments for crimes against transgender persons. For example, sexually assaulting transgender people merits a less severe punishment (up to two years and a fine) as opposed to sexual violence against women (seven years up to life imprisonment).

This is every day of a person that has to go through bureaucracy, scrutiny and apathy for basic things most people can take for granted. It’s about time we started treating people like they should be treated- as equals with equal rights and protection from a democracy that says its minorities are as important as everyone else. It’s about time legal reforms were built from the bottom instead of those in privilege writing laws that adversely affect the lives of people in spaces of disprivilege.

The bodies of people who cannot afford to protect it from the prying eyes of those in power are not up for debate. Our lives are not up for debate, are not topics on a talk show and are not ideas for documentaries. These are our everyday, lived experiences.

The Transgender Persons (Protection of Rights) Bill, 2019 does not protect India’s transgender citizens instead leads the way to harm and dehumanisation of their lives.

With inputs from Diksha Sanyal

Pooja Krishnakumar