The Transgender Persons (Protection of Rights) Bill, 2016 may have been cleared by the Lok Sabha, but the Bill is likely to give the government a tougher time in the Upper House. Opposition parties are closing ranks on it and are likely to demand that it be sent to a Select Committee for adequate legislative scrutiny.
In the Lok Sabha, the Bill was passed with 27 amendments introduced by the government. All the amendments moved by Opposition members were rejected. The Bill has already been examined by a parliamentary standing committee.
The Bill defines a transgender person, prohibits discrimination against such a person, confers upon the person the right to be recognised as a transgender person and not male or female and also deals with the issue of certificate of identity to transgender persons. The Bill has been brought following a 2014 order of the Supreme Court that asked the central and state governments to take steps for the welfare of the transgender community and to treat them as a third gender for the purpose of safeguarding their rights under Part III of the Constitution.
An opposition leader said, “In the Lok Sabha, the Bill was passed by a voice vote. All the amendments moved by the opposition were negated. Legislation cannot happen on a deadline, we need to do due diligence and subject the Bill to legislative scrutiny before we pass it. So opposition parties will demand in the Rajya Sabha that the Bill be sent to a Select Committee.”
Several civil society groups have opposed the Bill, which they say disregards many of their suggestions as also some crucial points raised in the standing committee report of July 2017. This includes the right of transgender persons to self-identification, instead of being certified by a district screening committee. The panel had also pointed out that the Bill is silent on granting reservations to transgender persons.
These groups pointed out that the present Bill is “retrograde” in comparison to the private member’s Bill drafted by DMK MP Tiruchi Siva in consultation with the community. In April 2015, Siva’s Bill became the only private member’s Bill to be passed by the Rajya Sabha in 45 years.
Transgender rights groups have said that the Bill violates more rights than it protects, and criminalises their traditional livelihood and kinship networks. They pointed out that it encodes discrimination in many ways, including with the provision for a lower punishment for sexual violence against transgender persons, which will entail a maximum of only two years in jail as against seven years’ imprisonment awarded in case of sexual assault on cisgender women.
“I was born female but I always knew I am a man. Now the Bill states that I have to approach the district magistrate, who shall ask a district screening committee to tell me what I am,” said Saransh, a transman from Delhi.
Meera Sanghamitra from Telangana Hijra Transgender Intersex Samiti added, “I have a right to self-identification, I am not what’s between my legs. The Bill reinforces the historical discrimination and stigma.”
She added that the government’s Bill ignores the NALSA ruling on reservation in employment, education, healthcare and its progressive directives for “a community that was subject to discrimination for 70 years”.
Another major objection is to the provision that if the immediate family is unable to take care of a transgender person, the court shall order such a person to be placed in a rehabilitation centre. Moreover, the Bill awards maximum punishment of two years in jail for begging, in effect criminalising communities such as Hijras and Kinnars.
Independent researcher Vqueeram Aditya said, “The Bill treats transgender persons as victims who need protection rather than empowered subject with rights. It denies and delegitimises larger networks of kinship in order to legitimise the institution that has been most oppressive to many transgender persons, that is their family.”
The transgender community has demanded that the Rajya Sabha refer the Bill to a Select Committee so that it can incorporate all of their concerns following consultations with the community.