A disturbing facet of lawmaking in India is that laws are often drafted without in-depth research, as a result of which they are misinformed and remain paper tigers. Another is that a culture of tokenism prevails regarding pressing social issues, seen most recently in The Transgender Persons (Protection of Rights) Bill, 2016.
Radical changes in draft
In April 2014, the Supreme Court delivered the landmark judgment of NALSA v. Union of India, which affirmed the fundamental rights of transgender persons. The court gave a series of directives to the government to institute welfare measures for transgender persons, including affirmative action. It also directed that the Expert Committee Report prepared by the Ministry of Social Justice and Empowerment (MSJE) be implemented.
In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. On April 24, 2015, in a rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha.
Instead, the government decided to get its own Bill — The Rights of Transgender Persons Bill, 2015 — drafted, which was put up for public comments in December. The 2015 Bill was largely based on the 2014 Bill, but it did away with provisions on Transgender Rights Courts and the National and State Commissions. The Ministry also consulted civil society and activists. In April 2016, the 2015 draft Bill was sent to the Law Ministry, in July the Cabinet approved it, and in August it was introduced in the Lok Sabha. It is unclear at which point the drafting changed, for the Bill introduced in the Lok Sabha was drastically different from the 2015 Bill. Not only was it shorn of many critical features of the previous two Bills, it also completely disregarded all existing discourse and resources — the NALSA judgment, the Expert Committee Report, and public comments. The 2016 Bill has now been referred to a Standing Committee.
What led to such radical changes in the new draft? Given that the discourse on transgender rights has garnered sufficient momentum and visibility, this watered-down Bill reflects callousness on the part of the legislature. Previous research, consultations, drafts, and judicial orders stand completely ignored in the face of political (dis)interest, which means that much of the work will now have to be repeated.
To start with, the 2016 Bill in many ways falls short in its substantive content. Clause 2(i) of the Bill, which defines the term ‘transgender person’, has been inexplicably borrowed from a provision of the Australian Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which defines the term ‘intersex’. This, even though the Expert Committee Report clearly explained the difference between transgender and intersex identities. The 2014 and 2015 Bills had more accurate definitions of the term transgender. In fact, the 2015 Bill was the most progressive in this regard as it granted a transgender person the right to identify as either ‘man’, ‘woman’, or ‘transgender’. Another problem is the absence of a provision on reservation, running contrary to the NALSA judgment and the 2014 and 2015 Bills which directed reservations for transgender persons.
Not a rights-based approach
While the NALSA judgment is couched in rights language, locating the fundamental rights of transgender persons in the golden trinity of Articles 14, 19 and 21 of the Constitution, the 2016 Bill, though it uses the word “rights” in its title, deviates from a rights-based approach and leaves transgender persons at the mercy of the “benevolent” state. This is puzzling considering that the 2014 and 2015 Bills, and even other recent laws like the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Bill, 2016, are framed in rights language.
Further, the Bill is completely silent on how its content will impact the operation of existing laws. Most laws, including of marriage, adoption and succession, continue to be based on the binary of male and female. Criminal laws, especially those dealing with sexual offences, also continue to be gendered. The cisnormative (the assumption that everyone has a gender identity that matches the sex the person was assigned at birth) foundation of the law remains a significant barrier to access to legal justice for transgender persons. Jurisdictions like the U.K., Ireland, Argentina and Malta, which have legislated on transgender rights, clarify in their laws the impact gender change will have on existing legal institutions that are inaccessible to persons with non-conforming genders. The NALSA judgment too recognises the need for making civil rights accessible to transgender persons. However, the Bill fails to take this into account.
Finally, none of the Bills have addressed the issue of Section 377, which is frequently used to harass transgender persons, specifically transgender women. The conventional understanding of Section 377 is that it criminalises all sex that is not between people of opposite genders. But recognising trans-rights means recognising that there are more than the “opposite” genders of male and female. Embracing rights of persons with non-conforming genders while criminalising persons with non-conforming sexual orientations is thus absurd.
The 2016 Bill is the product of an uninterested and insincere attempt at lawmaking. India is within touching distance of enabling the legal empowerment of a hitherto marginalised community and it would be a shame if it squandered the opportunity by passing a bad law.
Shruti Ambast and Namrata Mukherjee are Research Fellows at Vidhi Centre for Legal Policy, New Delhi.
