OPINION

Against gender rights

The decision to re-introduce the 2016 Bill on transgender rights makesa mockery of democratic norms

The transgender community and its allies have erupted in anger over the decision of the Ministry of Social Justice and Empowerment to re-introduce the original Transgender Persons (Protection of Rights) Bill, 2016 in the winter session of Parliament. Union Social Justice Minister Thaawarchand Gehlot felt the original version to be “good”, which is the only publicly available ‘justification’ to back its re-introduction. So why the anger and the mobilisation to stop the Bill in its current form? Despite resistance to the 2016 Bill followed by a year-long process to redraft it to reflect the demands of the community, the Ministry has taken the decision, and without a single change.

Journey of the Bill

The transgender community saw the Supreme Court’s landmark decision in NALSA v. Union of India as a victory, as it recognised that transgender persons have fundamental rights. The judgment was followed by a private member’s Bill, the Rights of Transgender Persons Bill, 2014, which was unanimously passed in the Rajya Sabha. Instead of introducing it in the Lok Sabha, the Ministry uploaded its own Bill, the Rights of Transgender Persons Bill, 2015, on its website in December for public comments. The 2015 Bill, which was largely based on the 2014 Bill, did away with the national and State commissions for transgender persons and transgender rights courts. The Bill was fairly progressive since it granted a transgender person the right to be identified as a ‘man’, ’woman’ or ‘transgender’. However, the 2016 Bill, that was finally introduced in the Lok Sabha, came as a shock. A highly diluted version, it also pathologised transgender persons by defining them as “partly female or male; or a combination of female and male; or neither female nor male”. Met with backlash, the Ministry set up an expert standing committee on social justice and empowerment to examine the Bill.

The committee report

The standing committee invited public comments and thereafter held multiple rounds of consultations. Its report, released on July 22, 2017, criticised the 2016 Bill for its stark deficiencies and recommended re-drafting the definition of a ‘transgender person’ to make it inclusive and accurate; providing for the definition of discrimination and setting up a grievance redress mechanism to address cases of discrimination; and granting reservations to transgender persons. However, its substance lay in its insistence that the law must grant equal civil rights to transgender persons (marriage, divorce and adoption), thus opening the door for the legal system to take steps to undo its oppressive heteronormative (the presumption that heterosexuality is the norm) and cisgendered (the presumption that people’s gender identity is aligned with their anatomical sex) foundation.

The Ministry’s decision to re-introduce the 2016 Bill disregards the pre-legislative consultative policy which requires Ministries to grant a minimum of 30 days for public comments and to place a summary of feedback/comments received from the public/other stakeholders on their website.

It is time to begin the process of resistance all over again.

Namrata Mukherjee is a research fellow at the Vidhi Centre for Legal Policy, New Delhi

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