The Centre is likely to reintroduce the Transgender Persons (Protection of Rights) Bill in parliament during the ongoing winter session. But certain provisions in the proposed bill have irked the transgender community. They call it “discriminatory” and the one which “would institute a gender apartheid against India’s vast and complex transgender, hijra, inter-sex and gender variant communities.” Recently, a protest was held at Sansad Marg in Delhi where they highlighted several ‘drawbacks’ in the bill.
Here are some of the issues they have raised over the proposed bill:
Screening committee to establish gender: For the recognition of transgenders, the 2016 bill requires the third gender to apply to a District Screening Committee, which comprises of a Chief Medical Officer, District Social Welfare Officer, a psychologist or a psychiatrist, a representative of a transgender community and an officer of the government.
The need of a Chief Medical Officer has left the third gender community angry as it puts a question mark on their identity and might require for them to go through a certain medical procedure.
The Expert Committee, set up by the Ministry of Social Justice and Empowerment in 2013, had worked upon the issues surrounding transgender rights and drafted a report. Among many recommendations, the report primarily suggested to drop the appointment of a chief medical officer from the committee. The ministry, however, has rejected the recommendations of the panel, and instead decided to table its own bill in the House.
In countries like Argentina which has a ‘model law’ on transgenders, self-declaration by the person concerned is the singular requisite needed to receive a recognition certificate. The Indian parliament’s expert committee had also wanted the Centre to draft the law in lines of the Argentina law.
Definition of transgender: The proposed bill defines transgender on the basis of “male and female”. “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.” This is how the proposed bill defines a transgender. The definition also includes the mention of trans-men and trans-women and it explains them as persons with intersex variation and gender-queers.
Almost all countries with legal transgender rights do not term the third gender as transgender. Instead they define “gender identity” or “gender recognition”. Argentina defines gender identity as the “internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body.”
Malta provides with a similar definition.
The definition adopted by most countries find their footing on the Universal Declaration of Human Rights (UDHR) and other international covenants, which include gender identity as a human right. Article 1 of the UDHR states, “All human beings are born free and equal in dignity and rights.”
The Australian gender identity law too found its basis in the UDHR but it amended the law and modified the definition in 2013. The definition of a transgender in the 2016 bill, set to be tabled in the winter session, found its inspiration from the Australian law. In other words, the proposed bill imbibed the part of the Australian transgender definition as a whole, focusing on the male and the female.
Definition of family: Under the right of residence of the 2016 bill, the transgenders are given a right to reside in their parents’ household or immediate family members and cannot be excluded from the family.
The transgenders however, are not comfortable with the “narrow” definition as most times their biological family fails to provide them with a status of a transgender. Non-acceptance of third gender led the Supreme Court to recognise the gender and establish their rights in 2014.
The transgenders, therefore, want a wider definition of a family as the current provision only protects transgenders from separating from their family on the ground of gender identity. The parliamentary panel had also recognised biological family as the biggest hindrance in their identity-crisis. The right to build a family without prejudices and biases was a popular opinion of the Expert Committee.