A PARLIAMENTARY committee headed by a BJP MP has criticised the central government’s draft transgender Bill for not addressing important civil rights issues, such as marriage and divorce, for transgender persons and thereby leaving them vulnerable to criminalisation under section 377 of the Indian Penal Code.
The report by the Standing Committee on Social Justice and Empowerment — headed by Ramesh Bais, a seven-term Lok Sabha MP representing the Raipur constituency— is the first ever government document to recognise the right to civil union for transgender persons.
The 31-member panel, comprising MPs from a number of political parties, tabled its “unanimously passed” report on The Transgender Persons (Protection of Rights) Bill, 2016, in the Lok Sabha on Friday. The Bill was introduced in the lower House in August 2016.The report states, “The Bill does not refer to important civil rights like marriage and divorce, adoption, etc., which are critical to transgender persons’ lives and reality, wherein many are engaged in
The report states, “The Bill does not refer to important civil rights like marriage and divorce, adoption, etc., which are critical to transgender persons’ lives and reality, wherein many are engaged in marriage like relations, without any legal recognition from the State.”
It further states that unless the Bill recognises the rights of transgender persons to partnership and marriage, under respective personal laws or other relevant legislations, they will remain at the risk of criminalisation under Section 377. The colonial era IPC section punishes those having sexual intercourse “against the order of nature” with imprisonment extending up to life term and a fine.
The preface to the report assures the transgender community that “a historic shift is underway, you are not alone in your struggle for the end of violence and discrimination. It is a shared struggle. Transgender is not an anomaly. It is part of the spectrum of people’s realities.”
In a departure from the government’s official position, the panel has gone beyond the issue of transgender persons and state, “While there is no shame in being gay, lesbian, bisexual, transgender or intersex of even straight — there is most certainly shame and dishonour in being a homophone, a transphobe and a bigot”.
The panel’s stance is significant in the light of the BJP’s reluctance to amend section 377. Immediately after the Supreme Court judgment of 2013, which upheld section 377 and left it to the legislature to amend the law if it deemed fit, then party president Rajnath Singh backed the IPC section terming such acts as “unnatural”.
Last year, RSS joint general secretary Dattatreya Hosabale had said that homosexuality should not be treated as a crime but as a “socially immoral act” and “a psychological case”. The Parliamentary panel has also asked for recognising “alternative family structures” in the context of transgender persons so that the Hijra or Aravani family system, where the community elders adopt young transgender children, are not criminalised. It has asked that family be defined under the Bill as “a group of people related by blood, marriage or by adoption of a transgender person”.
The report is also critical of the draft Bill’s definition of transgender persons which it terms as “unscientific and primitive and based on the underlying assumption of ‘biological determinism’”. The bill defines transgender persons as neither wholly male or wholly female, a combination of female or male and neither female nor male.
The panel has suggested that they should instead be defined merely as persons “whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women, gender-queers and a number of socio-cultural identities such as kinnars, hijras, aravanis, jogtas etc.”
While the exact transgender population in India is not known, Census 2011 records the population of ‘others’ (people who do not identify themselves either as male or female) at 4.87 lakh. A 2011 survey by Salvation of Oppressed Eunuchs, an NGO, pegs their number at 19 lakh.
The panel wants the Bill to define discrimination against transgender persons and make such discrimination, practiced either by people, the state or private establishments, punishable. Moreover, it also points out how the Bill is silent on the Supreme Court directive to extend benefits of reservation, in educational institutions and government jobs to transgender persons who have to be treated as socially and educationally backward communities.