Transgender bill fails to incorporate spirit of NALSA verdict, community fears denial of rights
At Koovagam, in the Villupuram district of Tamil Nadu, in April 2016, Jaya, a young transwoman reminisces about Dravida Munnetra Kazhagam (DMK) member, Tiruchi Siva’s attempt to move a private member’s bill — the Rights of Transgender Persons Bill, 2014 — was successful as the Rajya Sabha unanimously passed it by voice vote. His was the first private member Bill to be passed in 45 years. Jaya calls it the Tiruchi Siva Bill, and notes that while she came out to her parents and friends in 2005 when she was 14, it took another ten years for her community to come out. Data from the Avahan III programme (Swasti Health Resource Centre) indicates that, on an average, individuals identify themselves as transgenders at the age of 14 years while being able to come out to their circle only at the average age of 18 years.
In August 2016, the Central government introduced the Transgender Persons (Protection of Rights) Bill, 2016 in Lok Sabha. However, this was a much more diluted version of the 2014 bill. If passed, it would reverse all the gains for dignity and equal rights that the community has collectively championed for in the past several decades.
Bill a retreat on NALSA obligations
The bill imperils several of the rights guaranteed by the Supreme Court’s verdict in 2014 in the National Legal Services Authority (NALSA) vs Union of India case. In the NALSA judgment, the bench, consisting of justices KS Radhakrishnan and AK Sikri, broke down the heteronormative, binary gender constructs of ‘man’ and ‘woman’ that is deeply ingrained in Indian law, and affirmed that the constitutional rights and freedoms of the transgender community are absolute.
The path-breaking verdict recognised a spectrum of different gender identities, as well as provided very sound rationale for upholding the rights of the community. It stated that “[…]the gender to which a person belongs is to be determined by the person concerned“, thus, recognising the right to personal identity, autonomy, and self-determination under Article 21 (the right to life) of the Indian Constitution. Irrespective of medical, legal or surgical intervention, the court also secured the rights of gender expression by every transgender person, under Article 19 (1) (a) — the freedom of speech and expression. Lastly, the court stated that all transgender persons shall have the right to equality and equal protection under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity.
By giving equal legal status to transgender persons established on fundamental legal principles of international human rights, the NALSA judgment secured for the third gender to enjoy “full moral citizenship” and the right to dignity, while at the same time, opening the doors for the legislature to codify these substantial legal principles into law. The Tiruchi Siva Bill of 2014 did this immensely well. It proposed two percent horizontal reservation for transgenders in education and employment and sought affirmative actions in the present system due to their historical struggle with violation of rights and social entitlements. A survey conducted by Swasti Health Resource Centre for Avahan III programme shows that on an average 27 percent of the transgenders have reported facing at least one form of violence in six months.
The bill also suggested special statutory commissions on the lines of an OBC, SC (Scheduled Caste) or women commissions for a more comprehensive protection of the community’s interests. Along with this, the bill upheld the requirement of legal aid, medical help and special fast-track courts for them. None of these provisions have a found a way in the Transgender Bill of 2016.
Most importantly, however, is the issue of self-identification of transgender persons. The Tiruchi Siva Bill was based on the NALSA judgment that upheld the right of any person to identify as female, male or a third gender irrespective of medical intervention, including gender change surgery. The 2016 bill, however, conflates gender and biological sex, thereby, blurring the distinct difference between a social construct and an inherent anatomical characteristic, and is in contravention to the guiding definition of transgender in the NALSA verdict –
“Transgender [TG] is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who, in this writ petition, describe themselves as ‘third gender’, and they do not identify as either male or female […] Resultantly, the term ‘transgender’, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.”
The definition in the 2016 Bill is also based on a binary and heteronormative exposition of gender. Section 4 of the Bill reads – “Neither wholly female nor wholly male; or a combination of female or male; 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, and includes transmen and transwomen, persons with [themselves] inter-sex variations and gender-queers.” This definition is limiting and exclusionary – again, a blatant contravention of the NALSA judgment.
In addition to this, while the 2016 Bill provides for the right to perceived gender identity, it also makes it mandatory for every such transgender person to apply to a District Screening Committee, comprising the Chief Medical Officer (CMO), the District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community and an officer of the relevant government. This Committee would conduct an inquiry and ‘certify’ transgender identities for applicants. This is a gross violation of human rights and constitutional principles that a supra-constitutional body would determine the identity of transgender people. Involving a CMO for screening also means that the members of the third gender would be subject to arbitrary medical examinations and allied humiliation and that this would be sanctioned by the state.
The bill seeks to bring under its purview illegal acts of trafficking of gender nonconforming children and begging. However, it does not do so on sound logic. It operates in a void when proposing these clauses. Section 19 states that “Whoever,— (a) compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government […] 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.“ The bill attempts to dismantle the age-old tradition of begging that hijras engage in for livelihood, by criminalising the person who coerces young transgender persons to take up begging. But it does so without determining other feasible livelihood options or reservations for transgenders.
State of transgenders today
Today only 25 percent transgenders have found formal employment in mainstream society, 32 percent meet their survival needs through begging and an astonishing 67 percent through sex work. At least 20 percent are involved in both.
It must be understood that begging is an activity that has resulted from structural inequalities, due to a disbalance of education and employment opportunities. This may be used by the agencies of the State, like law enforcement and the police to criminalise transgender people, and subject them to further violence and stigma. This is a dangerous proposition as transgenders are often driven away from home, and find refuge in fictional families or Jamats – having a spurious legal provision like this can take away entire support systems of gender nonconforming youths who have nowhere to go. A whopping 74 percent of the transgender persons have had to leave home and their birth families because of being transgender and having faced violence and abuse, often leading to having little or no contact with them nor receiving any kind of support — financial nor emotional.
Section 13 states — “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person […] (3) Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.” This provision completely takes away the right of fictional families of transgender youth, many of whom run away from home or are driven out when they come out to their immediate families; and subjects gender nonconforming youth to the arbitrariness of courts and judges. It also coerces upon the youth the option of a rehabilitation centre by way of legal procedure, without explaining the need for such a provision in the first place.
A case study — from Social Action and Rehabilitation Association (SARA), Theni (Tamil Nadu), a community organisation for and managed by transwomen — where a 14-year-old gender nonconforming child ran away from home and came to the house of a transgender member to seek refuge. His parents informed the police, who in turn beat up all the members in the house and took the child away to his parents. When the child was produced before the district magistrate, he upheld the best interests of the child doctrine and stated that he may reside with whoever he chooses. The child chose the transgender gharana, and now lives with them. This was an unusual case from the field, where the judiciary ruled in favour of the transgenders and defended them from police and structural abuse. Another case from a community organisation called Salem Thirunangaigal Nala Sangam (STNS) in Salem (Tamil Nadu) faced charges of kidnapping when a child came to them for psychological support, and his parents found out. Members of STNS have also faced widespread police abuse since this incident occurred in December 2015.
Lastly, it does not provide an adequate definition of discrimination towards transgenders, which is necessary when public spaces — jobs, education, and the aspect of having families — is being opened out for them. It also does not align other laws that are based on binary gender identities to the transgender community — the Protection of Women from Domestic Violence (PWDVA), 2005, Sexual Harassment (Prevention, Prohibition and Redressal) at Workplace, 2013, the clauses on rape and sexual assault in the Indian Penal Code, 1860, the relaxing of gender barriers in laws that determine marriage — none of these have been brought at par with the NALSA judgment that expounds these rights under the right to life under the Constitution. At least 12 percent of TGs have reported sexual assault or facing violence due to their gender.
Most importantly, the bill of 2016 does not provide specific provisions for transgender health care — the Tiruchi Siva Bill mentioned free SRS surgery and allied medical treatment for transgenders. Findings have reflected that while on an average 79 percent transgenders have undergone SRS of which only 23 percent were able to undergo it in a formal medical facility, while the rest underwent the informal process called Nirvaan which is both unhygienic and dangerous. Their hurdles varied across availability of services, its affordability, and accessibility to the individuals. Societal stigma and dynamics within the community also played a major role.
For transgender persons like Jaya, who are trapped between the aspect of acceptance, justice and politics, this tug of war between the two bills marks another struggle — perhaps a longer and more grueling one over legalese and legality. One can only hope that the community’s interests are understood and the principles of human rights are respected.