More than a year has passed since the passage of the Rights of Transgender Persons Bill, 2014 in the Rajya Sabha. Presently, the government is pushing for a heavily diluted legislation in place of the private member’s bill that was unanimously passed in the RS.
The Rights of Transgender Persons Bill, 2014, piloted by Tiruchi Siva, MP, was introduced in the RS on December 10, 2014. MPs across partylines discussed the bill in detail and rallied for its passage. This proved to be a game-changer leading to the RS passing a private member’s bill for the first time in the last 46 years. However, there was an unanticipated delay in discussing the bill in the Lok Sabha. The reason became evident when on December 26, 2015, the Ministry of Social Justice and Empowerment uploaded a bill on transgender “protection” with diluted provisions on its website.
The massively diluted Transgender Persons (Protection of Rights) Bill, 2016 of the government is unrecognisable from the private member’s bill passed by the RS and betrays a lack of understanding of the community and its concerns. If passed it will reverse all the gains the community has achieved in its pursuit of dignity through decades of struggle.
To start with, the government’s bill gives a degrading and scientifically incorrect definition of transgender — as part male and part female or an incompletion with the binary gender as the reference point. This is in contravention of the definition of transgender provided by the Supreme Court’s NALSA judgement, the private member’s bill and the Union government’s own expert committee on transgender persons. A transgender is a person whose sense of gender — gender identity — does not match with the gender assigned to that person at birth. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.
Fear of non-conforming behaviour and the resultant hostility displayed by the state and the society has resulted in the transgender community becoming one of the most deprived and disempowered group in the Indian society. This regretful state of affairs was acknowledged by the Supreme Court in its path-breaking National Legal Services Authority (NALSA) v. Union of India and others judgement, wherein it upheld the right of the transgender persons to decide their self-identified gender and made a number of other legal declarations aimed at the uplift of the hitherto neglected community. The unabated prosecution of transgender people by the state and the society points to the lack of enforcement of the Supreme Court ruling.
The government bill proposes a district screening committee to “certify” transgender persons. This violates the NALSA judgment which upheld the transgender person’s right to decide their self-identified gender. It also goes against constitutionally guaranteed rights of equality before the law and freedom of persons.
The removal of the clauses which provided for the setting up of National and State Transgender Welfare Commissions is another incapacitating deletion. The National Council for Transgender Persons which the government’s bill envisions would be a massive bureaucratic structure without enforcement abilities, rendering it powerless to be a protector of rights. The government’s bill has also dropped the provision for reservation in education and employment to transgender persons, which was directed by the Supreme Court and provided for under the private member’s bill. The bill also does not guard against police violence although cases of physical and sexual violence by the police against transgenders have been extensively documented. Further, it avoids discussing the pertinent issues including the right to marriage, inheritance and adoption among others. Not surprisingly, the transgender community has publicly expressed dissatisfaction with the government’s bill with some sections calling it the Transgender Persons (Decimation and Violation of Rights) Bill, 2016.
Both the private member’s bill and the government’s bill are pending in the Lok Sabha and are likely to be discussed in the upcoming winter session of Parliament. It is important that all MPs concerned about the rights and welfare of the transgender community act to ensure the passage of a comprehensive bill that would enable the aspirations of transgenders for generations.