Transgender Persons Bill, 2019: Dehumanising India’s third gender with half-baked certification process
New Delhi: On November 26, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019. Introduced first in the lower house of Parliament on July 19, the Bill has drawn widespread criticism from members of the transgender community and equal rights activists who have termed it “discriminatory in nature”.
It is no secret that despite them being notified as the third gender, transgender people continue to face societal discrimination to the point of ostracisation. According to the 2011 census, there were close to 4.88 lakh transgender people living across India with Uttar Pradesh accounting for the largest share of their population followed by Andhra Pradesh, Maharashtra and Bihar. Over the course of time, multiple reports have highlighted the plight of the transgender community which makes up about 0.04 per cent of India’s population. It is beyond contention that India’s third gender is made to live in abysmal living conditions like ghettos, sometimes located on the outskirts of cities or towns.
Despite their literacy rate being as high as 94 per cent in one state, according to the last census, members of the transgender community find it very difficult to land reasonable employment opportunities. In many cases, this leaves them with no other option than to turn to sex work or begging and in some cases, even theft. It is ironic that transgender people in India are currently protesting against a Bill which is meant to penalise those who discriminate against them. This is not the first time India’s third gender has taken to the streets in protest against a Bill they believe violates their rights as citizens of this country. Similar demonstrations were organised more than once between 2008 and 2018. In order to understand the crux of the matter, one needs to first know the history of India’s third gender.
TransBill 2019 protests
Transgender people or kinnars as they prefer to be called, have been a part of Indian society since ancient times. Franciscan travellers from the 1650s noted the presence of trans-men and trans-women in Thatta, a city which now lies in the Pakistani province of Sindh. During the British era, transgender people were placed under the purview of the Criminal Tribes Act 1871. They were subjected to strict monitoring and compulsory registration until 1952 when their mention in the Act was denotified.
In a landmark judgement in 2014, Justice KS Radhakrishnan declared transgender to be the ‘third gender’ with respect to Indian law in a case brought by the National Legal Services Authority (NALSA) against the Union of India and a number of other parties. Justice Radhakrishnan had famously concluded his judgement with the words, “These transgender people, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”
Following the release of a report by an expert committee which concluded that transgender people face discrimination and social stigma, a private member Bill was introduced to safeguard their rights in 2014 by Tiruchi Siva, a member of the Rajya Sabha. It was passed in the upper house in 2015 but is still pending for approval in the Lok Sabha.
TransBill 2019 protests 1
To this effect, The Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha on August 2, 2016. It was then referred to a Standing Committee in September and a report subsequently released by the committee on July 21, 2017. It was passed in the Lok Sabha in December 2018 but could not be brought to vote in the Rajya Sabha owing to the 2019 general elections. It was then re-introduced in the Lok Sabha in July of this year, passed in August and sent to the Rajya Sabha for approval. In its final form and composition, the Bill defines a transgender person as ‘someone whose gender does not match the gender assigned at birth’. These include people with intersex variations and gender-queers along with trans-men and trans-women. It also prohibits discrimination or unfair treatment against a transgender with respect to education, employment, healthcare, access to public services, the right to movement and the right to rent or own property. This law applies to both state-owned and private entities.
In addition, the Bill also recommends the establishment of a National Council for Transgender (NCT) to advise the central government with respect to policy and legislation related to the third gender. The Bill further asks central and state governments to make welfare schemes to support the livelihood of transgender persons. Apart from providing them vocational training and self-employment, these schemes should also facilitate healthcare and inclusive education opportunities for members of the community.
However, some very basic notions listed in the Bill have drawn widespread criticism. According to it, a transgender person can only be considered as one in the eyes of the state with the help of a certificate to be issued in this regard by a district magistrate (DM). To begin with, this defies the right to self-determine one’s gender as has been upheld by the Supreme Court.
Secondly, the Bill fails to follow the recommendation of the Standing Committee which suggested the formation of a Screening Committee comprising a chief medical officer, district social welfare officer, psychiatrist, government officer and member of the transgender community. The job of this committee was to make recommendations to the DM for the issuance of certificates. In the event that a DM rejects the application, there is no appeal process for a transgender person who cannot avail any benefits mentioned in the Bill without the certification.
This leaves India’s third gender solely at the mercy of a district magistrate, which is an absolute violation of their rights as citizens. With members of the transgender community taking to the streets in protest, one can only think of them and the Bill with respect to a Zimbabwean proverb which goes, the axe forgets, but the tree remembers.