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The Transgender Persons Act 2019 has many and obvious flaws that needs a complete overhaul and reworking. An in-depth look at the situation as it stands.
On 26 November 2019, with the passing of the Transgender Persons (Protection of Rights) Bill 2019, the Parliament of India enacted the law which claimed to entitle the welfare measures to the transgender community, and in turn, aggress the discrimination faced by them.
However, the act has been an issue of contention with the transgender community, who strongly opposed it by declaring it regressive and marked the day as “Gender Justice Murder Day.”
The community claims that the manner in which the policymakers had drafted the act reflected poor understanding about various nuances of gender identities and was probably drafted by a group of people insensitive to the needs of the third gender. Subsequent events like the CAA, and the ensuing protests and violence, took away the attention of mainstream media from this sensitive issue. An act that is bound to have a drastic impact on the lives of the transgender community of our country definitely needs to be critically reviewed.
Ironically the act named “Protection of Rights”, violates the basic rights of the transgender community and fails to comply with India’s constitutional obligations. This act not only outrages the dignity of the transgender community but also displays a complete lack of empathy for the transgender population of the country by committing a series of blunders in the way it has been drafted. The sheer callousness and lack of empathy on the part of the drafters is reflected in the manner in which the definition of ‘transgender’ is provided in the act.
As per the act, the definition of transgender does not include certain identities like Kothis, Shiv-Shaktis, Thirunangi, Jogappas, Jogti, amongst others. It cannot be emphasized strongly enough how lackadaisical drafting of a provision as crucial as this can lead to undesirable and extremely serious implications for the left-out identities. Moreover, the act commits blunders by essentially clubbing intersex persons under the definition of “transgender”. Though the act defines intersex persons separately, ultimately merging them as a subset of transgender is horrifying. Objections were raised by the transgender community, as not only the two communities are different, but the medical challenges faced by both communities since birth are also vividly distinct in nature.
Undoubtedly, the most inappropriate part of this act is the entire procedure of legal identification of gender.
There are serious flaws in the process through which a transgender needs to get their gender legally recognized in case a person wishes to change their gender.
Though the act has done away with the District Screening Committee (which was suggested in the previous version of the bill) to determine the gender of a person, yet the act places a disproportionate amount of power in the hands of government officials, who may or may not be sensitized enough to engage in a dignified conversation with a transgender.
The process has two steps, the first step is the legal recognition of the gender by the District Magistrate of the area in which the person resides. This can be done through a self-declaration of the identity by a trans person. Upon such a declaration, the person will be issued a “transgender certificate”. But, the issue of contention comes in the next stage where, for a transgender- to have their preferred gender recognized as masculine or feminine, they need to apply for a “change in gender certificate”. Only upon the furnishing of an appropriate proof that the “person has undergone surgery”, and the District Magistrate being convinced of the “correctness of such certificate”, such a certificate can be issued.
This provision of the new law, in effect, translates into making it mandatory for a transgender to undergo some sort of medical intervention.
This essentially is in conflict with the Supreme Court’s NALSA Judgment of 2014 which upheld the transgender community’s right to recognition on their own terms and called out against any sort of intervention that violated this right. As per the ruling, the court had asserted that the transgender community has a right to decide their “self-identified gender” and “any insistence for Sex Reassignment Surgery for declaring one’s gender is immoral and illegal”.
Additionally, the Transgender Persons Act 2019 also violates the UN’s Universal Declaration of Human Rights; which states that no one should be subjected to degrading treatment and everyone has the right to recognition everywhere as a person before the law. This new law proves to be not only discriminatory in nature, but also outrages the dignity of the transgender community by declaring medical intervention a mandatory prerequisite to have their preferred gender as masculine/ feminine. Furthermore, the new law fails to understand the non-binary nature of gender. It is perpetuating the regressive notion of society by forcing a transgender to fit into the binary classification of male-female.
Another issue with this law is that it allows for changing only the first name of the person after obtaining the certificate. Given the structure of Indian societies, the second name also plays a crucial role and is, in some cases, reflective of the birth sex of the person. Some examples of such second names or surnames can be found in Hindu Community, where “Kumari” is a surname generally used for females. Similarly, surname “Kaur” in Sikh Community and “Begum” in Muslim Community are used for females. This provision of the law stating that the person is entitled to change the first name while being silent about changing the second name is again an example of the callous drafting of the law.
Apart from a flawed definition of transgender, the act does no good with the definition of “family” either. As per the act, family refers to “a group of people related by blood or marriage or by adoption made in accordance with law”.
Now, this definition of a family becomes extremely crucial, because in further chapters the act states that if “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 the rehabilitation centre”.
Anecdotal evidence suggests that family is often the first site of violence and discrimination faced by the transgender person. Earlier, the kinnar community of various areas would adopt the transgender, but now with this provision of the new law, a transgender cannot legally move to live with friends, acquaintances or the local transgender community of that area. There are serious concerns with this provision, but two of them need to specifically addressed.
First, the Transgender Persons Act 2019 violates a transgender’s right to reside and settle in any part of India. The law rips the transgender community of their right to choose their place of residence and rather coerces them to move to designated rehabilitation centres.
This has certainly left the community upset. “Why should we move to the rehab centre? Did they ask me if I want to go to a rehab centre or not? And you don’t know how these rehab centres function, do they even know about the LGBT community? People there are not even aware of our needs.” said Amrita, who works with SAATHII (Soliditary and Action Against the HIV Infection in India) Organization in Delhi.
This also highlights the second major concern with this provision. The law does not mention much about rehabilitation centres. “Who knows whether we will be safe in these rehabs or not? Who will run these rehabs? Who would be held accountable if something goes wrong in these rehab centres? These people don’t even know how to talk to the trans people, what kinds of facilities will they be able to provide for us!” said Amrita.
A worried Amrita further adds, “The word ‘rehabilitation’ itself is problematic. If our family does not accept us, why can we not live with our non-biological family or community? And moreover, what kind of rules will these rehab centres have? Will they tell us how to dress, will they dictate us about timings, or will they teach us how to guide our behavior?”. Amrita is apprehensive about rehabs serving as a place that secludes the trans community from the mainstream society- “Just allow me to go anywhere, provide me options to go anywhere I want”.
Talking about the government’s “attempts” to bring the transgender community into the mainstream, Amrita is also apprehensive about the recently announced India’s first transgender university in Khushinagar, Uttar Pradesh. Amrita adds, that “the law talks about a separate medical facilities for us, the government announces a university for us…but all these things are rather keeping us away from the mainstream. Before announcing a university like this, what about introducing gender-neutral toilets rather than having transgender toilets? In the name of inclusion, the government is basically promoting our social exclusion from the mainstream”.
Amrita also called out the proposed National Council for Transgender Persons- “What will a national structure do if there are no district/ state level structures?”
There is a need for a structural change in the institutions addressing the specific needs of the transgender community. The proposed National Council is also under criticism due to the under-representation of the transgender community. There is a need to increase the participation of the transgender community in this council, otherwise, a council with a majority of non-trans people might only end up creating more room for possible misuse of power against the community.
While the new law assures that the government will take welfare measures for the trans community, it again gives no specifications about these welfare measures. The law also fails to give a comprehensive definition of discrimination. It states that unfair treatment/ denial or discrimination against a transgender is prohibited, but the question is what really counts as an unfair treatment. What kind of practices will be counted as discrimination? This section leaves a lot of room for subjective interpretation, which is definitely not sought in an issue as crucial as discrimination.
Furthermore, there is no provision in the Transgender Persons Act 2019 to specify any procedure to penalize any person(s) who discriminates against transgender. How is a provision like this expected to deter people from discriminating against the community if there are no penalties or repercussions associated with it? It appears like a perfunctory mention of the provision of discrimination in the law. Little mind has been put into defining certain really vital terms, and this can potentially lead to unpredictable implications for the trans community, in particular.
Coming to essential rights, there is absolutely no mention in the Transgender Persons Act 2019 of making education and healthcare accessible to the trans community.
Previously, as per the NALSA judgment ruling of the Supreme Court in 2014, the transgender community was eligible for a reservation under the OBCs (Other Backward Classes). But, with the new law in place, there is no mention of any sort of affirmative action, and this is a huge institutional failure. On one hand, the law strives to ensure inclusive education, but on the other, there is no mention of any specific measure to facilitate the same. Simply inserting a provision to provide inclusive education might not translate to any real change on the ground, unless there are specific measures to ensure the integration of the trans community into the mainstream.
Additionally, the new law just fails to acknowledge the issues surrounding the marriage and family planning rights of the transgender community. There is absolutely no mention of the legal complications that might arise in the case of transgender marriages. The drafting of this law is rushed and the same is reflected in the fact that the law totally ignores the complexities around the family planning and adoption rights of the community.
Despite all these unjust provisions of the new law, there is yet another provision that invited strong criticism from the community. This law specifies a minimum punishment of six months and a maximum punishment of two years for anyone involved in sexual abuse of a transgender, while as per the Criminal Law (Amendment) Act 2018, the minimum punishment for raping a woman is ten years, and for raping a man is seven years. How the sexual abuse of a transgender is not as outrageous as the sexual abuse of a woman or a man is beyond our understanding. Even the Delhi Commission For Women, headed by Ms. Swati Maliwal, in its letter to the Lok Sabha Speaker and the Minister of Social Justice and Empowerment alleged that the Transgender Bill encourages sexual assault of a transgender. Merely two years imprisonment for raping a transgender- Is this very clause not discriminatory in nature? It assumes that the boundaries of physical bodies of a woman and man are more sacrosanct than that of a transgender.
There is an urgent need to mend the lacunae that the act in its current form has. The act, in its current form, holds back the empowerment of the trans community and rather has the potential to be used as a medium to harass the transgender community.
A series of amendments need to be incorporated into the act. First and foremost is the involvement of representations from the transgender community; suggestions from the community should be invited, and lessons from the experiences of the community should be used to make meaningful amendments to the act.
Secondly, there is a need to set-up a national as well as a state trans commission, with a majority of transgender on the board. Such a commission can be instrumental in addressing locally originating issues that the community faces.
Third, the policymakers also need to be mindful of derogatory experiences that the transgender community suffers at public places such as airports, malls, cinema halls, etc. Such places often have a separate male/ female queue, leaving the transgender vulnerable to facing fresh harassments during security checks. There needs to be specific training measures to sensitize all such officials who deal with the community on a regular basis. Fourth, the journey of a transgender undergoing hormonal therapies, laser therapies, counseling, or a sex reassignment surgery is a long one. Along with hormonal changes and psychological challenges, the physical appearance of the transgender undergoes changes slowly. It is a long process and may take a few years. The administration, at all stages, needs to be mindful of this transition process and effectively train at least their own staff – on how to talk to such a person in a dignified manner. At no point should any transgender be subjected to any sort of humiliation at any point.
Finally, the importance of affirmative action, especially in education, cannot be undermined. There is a need to integrate the transgender community into the mainstream by assuring them reservations in the educational institutions. There are several educational theories that highlight that inclusive education is the best possible way to achieve desirable results for all learners. Special efforts should be made by way of reservations to motivate transgendered students for joining the educational institutions. Specific health benefits should be given to the transgender community, and in no way should segregation be done at any level.
The Transgender Persons Act 2019, in its current form, is merely a toothless tiger. Certain provisions have been inserted to appease international/ national organizations, but a lot still needs to be addressed and improved to provide some real meaning to the act. If the act is amended in a more collaborative way and engages the voice of the transgender community, it surely will be better received by the community.
Co-authored by:
Karan Babbar is a Ph.D. scholar at IIM Ahmedabad. He critically engages with issues of social concern like gender, menstruation, etc. You can find him on Twitter. Karan is also a member of the WGH India chapter.
Shreya Sharma is pursuing her Ph.D. at IIM Ahmedabad. Her interests lie in critically analyzing issues of social relevance like education, health, gender, and inequality. You can find her on Instagram.
Image source: By USAID – USAID Bangladesh, Public Domain, Link
Karan Babbar is a Ph.D. scholar at IIM Ahmedabad. He critically engages with issues of social concern like gender, menstruation, etc. Karan is also a member of the WGH India chapter. read more...
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