On November 26, 2019, the Transgender Persons (Protection of Rights) Bill 2019 was passed in the Rajya Sabha.
The Bill has was originally drafted by the Ministry of Social Justice and Empowerment around four years ago, and has remained controversial – several trans people and activists raised serious concerns about it, seeing it as upholding discrimination against trans people instead of protecting their rights.
Even though the Bill has been passed after some amendments, activists say it is still discriminatory and there have been protests and press conferences in cities across India raising concerns about the Bill, with more planned in the next few days. Here is why they are opposing it:
It has an unsatisfactory definition of “transgender”
The Bill defines a transgender person as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
Many believe transgender identity should not be defined by biology (even bodies like the WHO and World Professional Association for Transgender Health do not lay down biological criteria), and instead should be defined by the fact that one’s gender identity does not align with the sex assigned at birth. Some also point out that imposing transgender identity on people who are intersex, instead of allowing them to choose their gender, is unfair.
To understand more about differences between Sex, Gender, Orientation, go here.
To read more about what intersex is, go here.
It requires ‘proof’
The Bill says that it is necessary to get a certificate from a District Magistrate, certifying that one is trans.
Previously, the Bill said that in order to get this certificate, one had to get past a district screening committee consisting of five people: a Chief Medical Officer, district social welfare officer, a psychologist or psychiatrist, a representative of the transgender community, and a government officer, who had the final say. If a trans person wanted to identify as either male or female, they would first need to prove to the committee that they had surgery to change their genitalia accordingly. In July 2019, the need for certification under a screening committee was struck out, but trans people still need to apply to the District Magistrate for a certificate to say that they are trans, and to change one’s gender identity to male or female, a medical certificate issued by a Medical Superintendent or Chief Medical Officer is needed.
However in 2014, the Supreme Court ruled that trans people have the right to self-identify as male, female or third gender. The Bill violates the right to self-identify as well as privacy – as it leads to invasive checks to ‘certify’ a trans person’s gender identity.
It fails to provide legal protection
Before the Bill was passed in the Rajya Sabha, a major sticking point was removed: the criminalising of begging.
But it lays down sentences for “sexual abuse” of trans persons that are far lower than similar sentences for assault and rape of women (in India, rape, stalking, and sexual harassment laws are not gender-neutral and apply only to women). For endangering the life and safety of a trans person, or for raping a trans person, a criminal can get off with only upto two years in prison and a fine. However, raping a woman carries a sentence from 7 years to life imprisonment. This appears to place lower value on the lives and safety of people who are trans, and denies them equal rights under law.
The lack of reservations
In 2014, the Supreme Court asked State and Central governments to offer reservations for trans people when it came to education and public sector jobs. This has been a major demand of trans activists, along with reservation in politics. However, the Bill makes no mention of reservation, failing to ensure opportunities for education and employment.
If you would like to raise your voice against the Bill, here’s what you can do: join a protest in your city or town. Bangalore, Delhi, Hyderabad and Pune have seen protests already, but more are planned in Mumbai and other places.
Educate yourself more
– For more trans voices and details of protests against the Bill, head here.
– You can read Lawyers Collective’s criticism of the Bill here.