Whose rights is the Trans Bill protecting?

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Whose rights is the Trans Bill protecting?

Thursday, 05 December 2019 | Keshav Suri

The concept of requiring certification to prove one’s gender is draconian. It not only stems from the idea of discrimination but also opens the door for increased corruption and humiliation of an already ostracised community

In India and south-east Asia, we have traditionally and culturally celebrated transgender people from time immemorial. With colonisation and other cultural shifts, the idea of a diversity mosaic, which was intrinsic to the DNA of our existence, seemed to fade way in time.

A struggle started in 2014 with the NALSA Vs Union of India case and continues till today, where the legislature has a chance to undo the atrocities the trans community has been subjected to over time, much like what the Supreme Court (SC) did for the Section 377 verdict in September 2018.

Can we imagine a world without separation and labels? I wonder what that would be like? A Bill, meant to protect the trans-community, stands on the very foundation that evokes the idea of discrimination. The Transgender Rights Bill treats gender in a fixed binary, which goes against the basic principle that trans-rights activists have been fighting for. The concept of requiring certification to prove one’s gender is draconian. It not only stems from the idea of discrimination but also provides a doorway for increased corruption. An already ostracised and economically weak community will be further humiliated and exploited to enable this said process of certification. According to a trans-activist, the 2014 NALSA judgment stated that transgender people had the right to gender self-identification and that a trans-person could choose to identify as a male, female or third gender.

The Government’s Bill says that one has to go through a District Magistrate (DM) to receive a certificate approving one’s identity as a trans-person. However, to be identified as male or female, one will have to undergo surgery and then get the certificate revised.

Protection is the right of every marginalised community but the ultimate aim is to get them on par in society. The provisions of the Transgender Rights Bill passed by the Parliament fail on all accounts.

No legal protection against rape and sexual assault: The new Bill does not fill the legal gap by laying out any much-needed, specific provisions or punishments to deal with the rampant issue of sexual violence, rape and assault of trans-people. The Bill only states, whoever “harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine”, as opposed to a minimum seven-year jail term in the Indian Penal Code for sexual assault on a woman. This implies that it is “okay” to violate the bodies of transgenders, or it is less of a crime to force yourself on a trans-individual.

No job reservation: As far as addressing economic equality, what exactly is the road map for the integration and protection of the trans-community? In the NALSA judgment, the State and Central Governments were asked to extend reservations to trans-people in education and public employment. However, there is no mention of a reservation in the Bill. It is creating roadblocks in terms of employment and education. As per the directions of the SC, trans people were to be included in the Other Backward Class (OBC) quota for jobs and education. The Bill has disregarded that directive.

Parenthood: How can one overlook the cumulative effects of the Surrogacy Bill and the Transgender Rights Bill. Put the two together and trans people, who are either single or un-operated, can bid the idea of surrogacy and therefore parenthood, goodbye.

 A study of the Bill makes it clear that those drafting it neither have sensitivities for the community nor are qualified to undertake the task. The Bill identifies transgender and intersex persons together. There is no distinction between biological sex and gender. What’s more bizarre and disappointing is that stakeholders were not consulted while drafting or amending the Bill. After there have been numerous protests by the community across the country regarding the irksome provisions of the Bill, ignoring the community’s reservations shows the apathy of the Government and its insincerity in protecting the rights of trans-individuals. The Bill has flouted basic human rights, the directions of the apex court and the guidelines set by international bodies like the World Medical Association and the World Professional Association for Transgender Health. What we do get instead are some cosmetic changes like district screening committees and dilution of the begging provision.

The Bill violates the fundamental rights of transgenders. The trans-community believes that the Bill makes a mockery of their personhood, community, rights and only adds to everyday humiliation and violation. I concur. In its current state, the Bill is promoting transphobia. The need of the hour is to support the community and listen to the voices emerging from it. Unless we figure out the root of a leak, it is impossible to stem the flow of water. Similarly, if we don’t understand the issues plaguing the community, any Bill will only work as a superficial bandage without providing any real healing.

As my activist friend Zainab summarises, “Instead of protecting and promoting our rights and entitlements, the Government has taken away our right to self-determine our gender, forcefully rehabilitated us with biological families. It has willfully remained silent on issues of reservation and watered down punishment for hate crimes and assaults on us.”

The authorities concerned need to interact with trans-community members and take their point of view into account. I am not one to despair and lose hope but the Parliament’s approval of this Transgender Rights Bill does make me understand the enormity of the task in front of us. It is upon us, the people, to assert what we desire the future of our nation to be.

(The writer is Executive Director, The Lalit Hotels)

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