The story so far: Parliament has made into law the Transgender Persons (Protection of Rights) Bill, 2019 , which had been framed for the welfare of transgender persons. The Bill was passed in the Lok Sabha on August 5 this year, a month after its introduction in the House, and the Rajya Sabha cleared it on November 26, with a last minute move to refer it to a Select Committee being defeated in a voice vote. The community had organised protests across the country, urging changes to the Bill, claiming that in the form in which the Central government had conceived it, it showed a poor understanding of gender and sexual identity.
What were the objections to the Bill?
Activists had problems right from the beginning, starting with the name. ‘Transgender’ was restrictive, they argued, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. Charging that the Bill had serious flaws, because of this basic lack of comprehension about gender, some activists also wrote an alternative wish Bill, outlining their demands.
The Bill was meant to be a consequence of the directions of the Supreme Court of India in the National Legal Services Authority vs. Union of India case judgment, mandating the Central and State governments to ensure legal recognition of all transgender persons and proactive measures instituted for their welfare. Activists harked back to this judgment of April 2014, chastising the Union government for failing to live up to the opportunity to ensure that fundamental rights are guaranteed to all people regardless of their sex characteristics or gender identity. Rejecting ‘Transgender’ as the nomenclature, they suggested instead that the title should be a comprehensive “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”, and in definition, sought to introduce the distinction between transgenders and intersex persons upfront. Members of the community perceive transgender as different from intersex, and were insistent that the distinction be made in the Bill.
Transgenders have a different gender identity than what was assigned to them at birth, while intersex indicates diversity of gender based on biological characteristics — ambiguity in anatomical genitalia — at birth. There are also multiple variations in intersex itself.
While the Act is progressive in that it allows self-perception of identity, it mandates a certificate from a district magistrate declaring the holder to be transgender. This goes against the principle of self determination itself, activists argue, also pointing out that there is no room for redress in case an appeal for such a certificate is rejected. One long-pending demand has been to declare forced, unnecessary and non-consensual sex reassignment surgery illegal, and to enforce punitive action for violations.
Transgender and intersex persons might require a range of unique health care needs, and that should have been incorporated into the Act, activists say.
While the Act envisages the setting up of a National Council for Transgender Persons to provide the institutional framework for its implementation, suggestions on the composition of such a council, or the demand to set up a working group for a Council for Intersex Persons were also ignored.
What is the historical context?
In 2013, the government set up an expert committee to study the problems of transgenders and recommend solutions. The committee, comprising experts from various fields and members of the community, also looked at past experience as in the State of Tamil Nadu, which had set up a welfare board for transgender persons, and made recommendations right from allowing a ‘third gender’ in official forms, to setting up of special toilets, and customising health interventions.
In 2014, a private member Bill, The Rights of Transgendered Persons, was introduced in the Rajya Sabha by Tiruchi Siva, a Member of Parliament from Tamil Nadu, which looked at a range of entitlements of such persons, providing specifically for them in health, education sectors, skill development and employment opportunities, and protection from abuse and torture. It was passed in the Rajya Sabha.
In 2016, the Government introduced its own Bill in the Lok Sabha and it was referred to a Standing Committee, which made a number of recommendations including defining the term persons with intersex variations, granting reservations for socially and educationally backward classes, and recognition of civil rights including marriage, partnership, divorce and adoption. However, with the dissolution of the 16th Lok Sabha (2014-19), that Bill lapsed.
Earlier this year, the Madurai Bench of the Madras High Court declared a ban on sex normalisation surgeries on intersex children and infants, relying on a petition to the National Human Rights Commission on the subject from Gopi Shankar, an intersex person, and activist. The Tamil Nadu government followed this up with issuing a Government Order banning such surgeries.
What is the future?
While the community is miffed that the Bill has become an Act without any effort to make valid or relevant changes to its original composition, it worries about how implementation will address the pressing needs of the community.
It only hopes that the National Council for Transgender Persons will allow for a more favourable implementation of the law, and thus provide more elbow room for genuine representations of the community that the Bill itself failed to accommodate.