The contentious Transgender Persons (Protection of Rights) Bill, 2016, which was tabled in the Lok Sabha by Thaawarchand Gehlot, the Minister for Social Justice and Empowerment in August 2016, is set to be re-introduced in the winter session of Parliament. India's transgender community — which numbers 4.8 million according to data from the latest round of the census — is up in arms, since they believe the legislation meant to safeguard their interests only serves to undermine their right to life and livelihood.
The Bill was subsequently sent to the standing committee on social justice and empowerment for consultation. The original version of the bill is to be re-introduced without any change in the draft provisions.
Evolution of transgender legislation
In February 2014, the Supreme Court passed a landmark judgement, paving the way for enshrining the rights of transgenders in law. The apex court deemed that individuals had the right to the self-identification of their sexual orientation. It ruled that the fundamental rights granted by the Constitution are equally applicable to transgenders who constitute the 'third gender'.
The judgement also called for affirmative action in education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. The blueprint for transgender rights legislation draws from the court's directives.
The first effort at framing legislation for the same was made in December 2014 by Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. The Rights of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Mr. Siva. It was unanimously passed in the Upper House but was never debated in the Lok Sabha.
The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgenders, as well as transgender rights courts. These remedial measures to prevent sexual discrimination were done away with when the government drafted The Rights of Transgender Persons Bill, 2015.
Despite these notable omissions, the skeletal framework of the draft Bill borrowed heavily from its predecessor. After consultation with legal experts and transgender activists, the 2015 draft Bill was sent to the Law Ministry. It was introduced in the Lok Sabha in August 2016 after considerable revision to the 2015 draft.
Why is the transgender community upset?
The final version of the legislation identifies transgenders as being “partly female or male; or a combination of female and male; or neither female nor male”. This definition which draws a clinical caricature is a departure from the intention of the original Bill to cleanse society of the stigma it placed on transgenders.
Moreover, to be recognised as transgenders, individuals have to submit themselves to a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychiatrist, a social worker, and a member of the transgender community. This is in stark contrast to the 2014 Bill which gives individuals the right to self-identify their sex.
The anti-discriminatory clauses of the Bill are extended to education, health care and social security. The provision of earmarking jobs for transgenders, a central plank of the 2014 Bill, has been lost in translation, with the diluted new draft ditching reservations and espousing equal opportunity in all spheres of life, as a panacea to create equity among the sexes.
Grievance redressal has been internalised, with establishments consisting of hundred or more persons mandated to designate a complaint officer to deal with any violation of the Act. This is in lieu of the setting up of central and State transgender rights courts.
What did the standing committee recommend?
In its report on the 2016 draft Bill, the committee draws attention to the inadequate definition of the third gender, which is founded on a heterosexual worldview. It also advocates extending civil rights enjoyed by the citizenry, such as marriage, divorce, and adoption, to encompass the third gender.
The draft is also riddled with internal contradictions. While it has criminalised discrimination on the grounds of sex, it maintains that transgenders are covered under the legislation for inheritance. It must be noted that it is often the families of transgenders who excommunicate them and push them into penury. Instigating transgenders into beggary or leaving their domicile is a punishable offence for which the maximum term is two years.
Some of the recommendations that find a place in the final draft include the rescue, protection, and rehabilitation of transgenders. Educational institutions have been directed to adopt an inclusive approach that is gender-neutral. The government has also formulated welfare schemes especially targeted at transgenders such as basic medical facilities including sex reassignment surgery. Vocational training programmes are also in the pipeline.
However, the ambiguity in the definition of the "third sex" lends itself to misinterpretation. Section 377 of the Indian Penal Code, which has been used to criminalise non-heterosexual sex, draws many transgenders into its net. Non-conformist sexual orientation is scoffed at and transgenders often find themselves at the receiving end of disproportionate attention from law enforcement agencies.
However, the Supreme Court ruling on August 24, 2017, that the Right to Privacy was a fundamental right, and was thereby applicable to the protection of sexual orientation of citizens gave a reprieve to the LGBTQ community. The Transgender Persons (Protection of Rights) Bill, 2016 is slated to be re-introduced in winter session of Parliament which starts on December 15, 2017.