The Transgender Rights Bill and its problems, broken down
Let's get some clarity on what exactly is in the Transgender Rights Bill, and why people are protesting against it.
The controversial Transgender Persons’ (Protection of Rights) Bill, 2019 was passed by the Rajya Sabha yesterday, despite opposition from House members and protests from civil society groups.
The original draft of the Bill, introduced in 2016, defined transgender persons as someone who is “neither wholly female nor wholly male”. (Yes. Terrible. We wholly concur.)
The draft with this extremely problematic definition was rejected, and in December 2018, the government returned with a new Bill that included a different definition. The revised definition states that a transgender person is “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
The overarching principle behind the Bill is to prohibit discrimination against transgender persons, including denial of service or unfair treatment, in the realms of education, employment, healthcare, access to facilities and opportunities, the right to free movement, the right to reside and rent property, and the opportunity to hold public or private office; among others.
Okay. Let’s follow this format for the rest of this article: What does this mean?
It’s simple - this Bill was drafted with the intent to bring an umbrella of protection for the trans community into law. However, as usual, the government messed up - the impact of actual trans voices while drafting the Bill was minimal, at best. Mostly ignored, to be more realistic. The Bill was passed in the Lower House on the same day the Kashmir fiasco happened in Parliament. And yesterday, it was quietly passed in the upper House.
Now here’s the thing: last weekend was the Pride Parade in Bangalore and Delhi. Trans people dressed in black, to protest the Trans Bill. But guess what? These voices - once again - were completely ignored.
Here are some of the problems with the Bill:
Human rights organisations have alleged that the Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations.
The 2019 Bill mentions self-identification by transgender people, as made possible by the NALSA judgement, but a district magistrate and a government doctor must determine if they medically qualify.
To qualify for the recognition of transgender status, a person would have to make an application to the District Magistrate for a certificate of identity. This would indicate their gender as ‘transgender’. This certificate “shall confer rights and be a proof of recognition” of a transgender person’s “identity”.
According to Human Rights Watch, this clause is unclear on a transgender person’s right to self-identify, which the Supreme Court recognized in the landmark NALSA judgment in 2014. The NALSA v India judgement held that transgender people should be recognized as a third gender and enjoy all fundamental rights, while also being entitled to specific benefits in education and employment. It is crucial that the drafted law be in line with the Supreme Court’s ruling on transgender rights.
According to the HRW report, “even though the bill says that a transgender person ‘shall have a right to self-perceived gender identity,’ its language could be interpreted to mean transgender people are required to have certain surgeries before legally changing their gender.”
What does this mean?
The Supreme Court gave Indians the right to choose their own genders. This law however, requires that this is co-signed by two people who probably barely know you. Does this make sense? No, not really. Especially considering the fact that Trans people will be forced to prove that they are transgender
While the new bill requires the government to “formulate welfare schemes and programmes to support livelihood” including “vocational training and self-employment” for transgenders, it ignores a key demand--public-sector job reservations, such as those for differently-abled people.
What does this mean?
Okay here’s the thing - India grants reservation for SC/ST people, for differently abled people - for anyone whose identity has faced a history of discrimination. Does this not apply to trans people? Absolutely. Do they not need affirmative action? Yes, they do. Shouldn’t they be granted reservations, especially in education, healthcare and employment? Yes. Open and shut case. Let’s move on.
Furthermore, the double standard of criminal punishment has been most loudly protested against. Under the Bill, if transgender people are sexually attacked, their attackers face a maximum jail term of two years--against a minimum of seven years for women who are attacked.
What does this mean?
A cisgender woman - a woman born a woman - is given protection from sexual assault under the Indian Penal Code. It mandates that anyone who sexually assaults her will face at least 7 years in jail. This can even extend to a life sentence. However, a trans woman - who should be given the same legal protection as a cis woman - if assaulted, will see their attacker jailed for a maximum of two years.
I mean, now you have to see why people aren’t happy with the Trans Bill, right?