While the SC’s ruling gave the LGBTQ community the right of self-identification, the Transgender Bill has made the it dependent on certification by a system which is full of insensitivity and apathy towards its members
Irony has died a thousand deaths.” This statement by Aqsa Sheikh, a transwoman doctor and medical college teacher, rightly sums up the Transgender Persons (Protection of Rights) Bill, 2019, that was ratified by the Rajya Sabha recently.
The Bill was moved by the Social Justice and Empowerment Minister Thawar Chand Gehlot on November 20, which is globally commemorated as the Transgender Day of Remembrance, in memory of people murdered as a result of transphobia. The Pride Parade, held on November 24 to protest against some contentious provisions of the Bill, received no acknowledgement from the Upper House and got passed after two days, ironically on Constitution Day. The Bill has been contested and criticised from the day it was drafted and passed in the Lok Sabha, as, among other things, the community is miffed over the provision that mandates that a screening committee certify a person’s trans-status.
“If we want a trans-ID, we will have to approach a screening committee, which is full of cisgender people”, says Grace Banu, a trans-rights activist from Tamil Nadu.
Shanthi Muniswamy, a member of the community says, “How can a screening committee be authorised to confirm whether or not I am a transgender?”
Mridul, a transman, activist and member of a queer-feminist collective says it is even more difficult to get legal documents to reflect a transperson’s gender identity. “My birth documents certify me as a female but I want them to identify me as a male because I am a man. But as per this Bill, I can’t get that done unless I have had a Sex Reassignment Surgery. Then, someone else will determine whether I can be a man or not”, says Mridul.
While pointing to the minor’s right of residence, Mridul says, “For transgenders, the family is usually a source of trauma and violence. As per the Bill, any transgender person below 18 years of age will have to live with their natal families, failing which, they will be admitted to a rehabilitation centre, a place to modify delinquent behaviour. How demeaning and unfair is that.”
The Bill treats sexual harassment, assault and violence against homosexuals and heterosexuals differently. But more than that, what shocks the community is the fact that the maximum punishment for a sexual offence against a transgender is two years of imprisonment as against a minimum of seven years of jail for sexual assault on a woman. In cases of sexual assault or gender-based violence, any punishment of less than three years is bailable at the police station. The person doesn’t even have to go to court to get bail after assaulting a transperson. It is a mockery of the Constitution,” says Chisty Nag, a student at the Tata Institute of Social Science and a member of the community.
None of the sticky issues regarding provisions related to the right of self-identification, the narrow definition of family, sex work or sensitisation, have been addressed, discussed or amended in the Bill.
This toothless Bill has also dampened the hope which the verdict in the National Legal Services Authority 2014 vs Union of India case gave to the community. The provisions of this Bill and the Supreme Court’s verdict stand in stark contrast. Whereas the apex court’s ruling gave the LGBTQs the right of self-identification, this Bill has made the community dependent on certification by a system which is full of insensitivity and apathy towards transgenders.
This Constitution Day could have become a milestone in the long history of the struggle of the community for transgender rights. Lawmakers could have gifted the trans-citizens of India an empowering Bill, or at least held some much-needed deliberations over the contested provisions. But, as the Bill was passed in the Rajya Sabha without any consideration or acknowledgement of the concerns of the protesting community, it is now time to ask, kaanoon logo ke liye hai, ya log kaanoon ke liye (Is the law for the people or vice versa)?
“The Bill violates several constitutional freedoms and it can be challenged in court”, says Bittu KR, a trans-activist who works with the Telangana Transgender Hijra Samiti.
But the question is why has the legislature left the community to fight a long legal battle all over again? They have been fighting for decades to be recognised as a part of our society, and when we have lawfully accepted them to be our citizens, then why this discriminatory and apathetic Bill which claims to be a Bill of Rights but doesn’t recognise the dilemma that it creates for the transcommunity? Why is this system treating passing of a rights Bill as a favour? Where is the responsibility involved in making provisions for someone who has to adhere by it every day?
(The writer is a postgraduate scholar, Department of Political Science, University of Delhi)