“After a prolonged discussion on this matter, I think that this Bill is perfect, there is no need for too much discussion on it now.”— Minister Social Justice and Empowerment, Thaawarchand Gehlot
Amidst the sloganeering and ruckus over the creation of a Joint Parliamentary Committee on the Rafale deal, the Transgender Persons (Protection of Rights) Bill, 2018 was swiftly introduced and passed by the Lok Sabha on December 17.
At first glance, the government’s Bill looks quite promising compared to the 2016 version, after 27 recommendations of the Standing Parliamentary Committee were adopted. However, when one looks closer, pertinent questions arise: How has the Bill constructed the concept of “gender identity” and its long-term implications for transgender individuals? Is the Bill potent enough to correct the centuries-old discrimination and injustices against the transgender community? Does the Bill convert the constitutional guarantees of life, liberty and equality into lived experiences for transgender persons?
With a view to achieving a clear, coherent and stable definition clause, the Bill ends up providing a one-sided and an over-simplified understanding of the term “transgender”. Although the government has dropped the previous and more problematic definition, the present one is still defective on many counts. It emphasises the biological dimension of transgender identity; conflates “sex” with “gender” and weaves a medicalised discourse for both; and sets “male” and “female” bodies as the normative standards.
Gender identity is a complex concept that is manifested in multiple ways. While a trans-person may experience a dysfunction with respect to anatomy, others may face even bigger dilemmas about their “self-concept” and “social role”. The Bill fails miserably to factor in these equally significant aspects of transgender identity like how trans-persons view themselves vis a vis others; how the society views a trans-person; how trans-persons conduct themselves as well as interact with others and yearn to get a stamp of approval from the society at large. Evidently, the definition does not provide a “perfect” formula to determine exactly where an individual falls on the “sex anatomy spectrum” that nature has presented to us.
Queer theorists view gender identity as a malleable and fluid concept. They believe that individual life, identity and experiences cannot be constrained in boxes like male/female/transgender. Rather, they perceive a pluralistic world of infinite diversity. For instance, the definition clause very conveniently but erroneously includes all intersex persons within the term “transgender”. It fails to answer two important questions: What constitutes non-standard sexual anatomy? Who decides when the sex anatomy category of male ends and the category of intersex begins or when the category of intersex ends and female begins?
While on the one hand, the Bill expressly prohibits discrimination against a transgender person, on the other hand, it limits the prohibition to only nine types of discriminatory acts. Discrimination is a multidimensional concept and to name just nine types is a travesty of justice. Further, it fails to prescribe a commensurate punishment for the violation of prohibited acts like sexual crimes. Shockingly, the Bill does not even decriminalise homosexuality in line with the 2018 Supreme Court judgment.
Not only does the Bill completely overlook everyday acts of bullying, intimidation and abuse carried out by police officials but also grants them complete immunity from prosecution. The bundle of rights, benefits and privileges extended to other citizens under various laws like marriage, divorce, inheritance and reservations have not been made available to trans-persons.
The Bill grants a right to self-identification to transgender individuals as upheld by the NALSA judgment. Can an individual who self identifies as “male” today, wake up and put on a new gender tomorrow? What is the process to be followed if one wishes to change one’s gender identity? As such, it is pertinent to analyse the right of voluntarism: First, the extent to which the Bill accommodates an individual’s freedom to choose gender; second, the limitations imposed on the right; and third, the implications of the same on transgender individuals. The Bill empowers the District Screening Committee comprising of medical experts and doctors to conduct physical tests in order to determine whether a person may be categorised as “transgender”. The NALSA judgment expressly prohibited subjecting a person to medical examination like intrusive body searches and stripping for such purposes. With this Bill, the government has put in place a new gender regulatory regime which is a negation of the privacy judgment.
The Bill is oblivious of the harsh realities and circumstances of the transgender community. For example, it does not allow the separation of transgender persons from their abusive families. Separation is possible only under exceptional circumstances, under a judicial order whereby a person may be placed in a rehabilitation centre. The insistence on living with the natal family is regressive. Further, state-run rehabilitation centres are known to have deplorable living conditions and frequent instances of sexual violence.
Begging is a primary source of livelihood for trans persons in India. By criminalising the activity, the Bill pushes them into penury. The police will likely use this provision arbitrarily to target trans-persons. The absence of any provision about education and affirmative action for the transgender community is another major shortcoming.
It is disheartening that the 2018 Bill was passed in its present form. Let the Rajya Sabha improve the Bill and send it back to the Lok Sabha.
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