Law
Shortly after the Bill was passed in the Lok Sabha, many voiced protests against what has been termed a regressive Bill.
Photo taken from the Namma Pride March in Bengaluru

Around 3.30 pm on Monday, as noisy debates raged on, the Transgender Persons (Protection of Rights) Bill was hurriedly passed by the Lok Sabha with 27 amendments. Shortly after the Bill was passed, social media was witness to several protests by the community and activists to what has been termed a regressive Bill.

Less than an hour after the passing of the Transgender Persons (Protection of Rights) Bill by the Lok Sabha, Grace Banu, a trans activist from Tamil Nadu and the founder of the Trans Rights Now Collective, took to Facebook that stated that Tuesday was a “black day for us”.

According to several activists, out of the many changes suggested to an earlier draft of the Bill, a total of 27 amendments have been accepted.

“Right from the beginning, we have been opposing this Transgender Persons Protection Bill, 2016. Trans people are opposed to this Bill, it is totally against the community. It criminalises the community and is meant to kill the trans people,” Grace says, speaking to TNM.

Grace adds that representatives from the community previously met the Standing Committee in charge of drafting this Bill and several MPs to give their suggestions to improve the Bill. The Bill has been witnessing several protests from the community since it was made public in 2016.

Grace tells TNM that there still are several issues with the Bill, which does not benefit trans people living in India. 

The definition of transgender

While the Bill that was passed by the Lok Sabha on Monday did amend the definition of transgender from an earlier definition, which was more problematic, it is still not a perfect definition.

The original definition in the Bill stated that a transgender person was one was “neither wholly female nor wholly male; or a combination of female or male; or neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans men and trans women, persons with intersex variations and gender-queers.”

After outrage from the community over this problematic definition, the definition was amended to “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender- queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”

As pointed out in a statement issued by Lawyers Collective, while this revised definition is better than the original one, a still clearer and more precise way to frame it would have been “a person whose sense of gender does not match the gender assigned at birth.” As it stands, the statement reads, this current definition is “prone to ambiguous and illiberal interpretation”.

As mentioned by Thiruvananthapuram Congress MP Shashi Tharoor on Twitter, the Bill also incorrectly assumes that all persons with intersex variations are transgender persons. 

No reservations

In the NALSA judgement, the State and Central governments were asked to extend reservations to trans people in education and public employment. After the Bill was first made public in December 2017, activists had, then too, made it clear that one of their major demands was reservation in employment, politics and education.

However, there is no mention of reservation in the government’s Bill, explains Gee Imaan Semmalar, a trans activist from Sampoorna India.

“Reservation or affirmative action was one of the major demands. If we have to enter the employment and education sector, we need reservations. NALSA said trans people should be considered socially and economically backward. The National Backward Classes Commission have not given any objection to this Bill. Very soon, this Bill will become law but they have remained silent on affirmative action,” Gee states.  

Referring to the clause in the Bill that states that the State will ensure the “rescue, protection and rehabilitation” of transgender persons, Gee says “trans people do not need rehabilitation, they need equity and equality through reservations.”

Criminalisation of begging

The new Bill also criminalises begging and prescribes a jail term for 6 months to 2 years for anyone who “compels or entices a transgender person to indulge in the act of begging”. This makes trans persons and communities particularly vulnerable, as Grace points out that many trans people in India are forced to take to begging due to lack of employment opportunities.

Grace Banu states that it is ‘callous, damaging and cruel’ to criminalise one of the only avenues trans people have to sustain themselves, that too, without providing any meaningful alternatives as demanded by the community and as allowed for by the SC through reservations.

“The criminalisation of begging in this Bill is totally against us,” she says. “Ninety per cent of trans people have to beg and do sex work. All right, if begging is criminal, then what is the other step, what is the other way? They should give us an alternate solution, saying, okay you can’t beg, but you can do this instead. This Bill doesn't give us any solution.”

As Gee Imaan says, “In the face of structural marginalisation of the trans community, one of the few livelihood options that they have is begging. If you’re not providing alternative opportunities and taking away the opportunities that they have, it is completely unfair.”

No legal protection against rape and sexual assault

As Congress MP Shashi Tharoor stated in a comprehensive thread on Twitter, “many offences under the IPC such as rape, stalking, sexual harassment etc are applicable only if the victim is female.”

In August 2017, a Pune court allowed four men accused of raping a 19-year-old trans woman to be let out on bail, as Sections 375 and 376 of the IPC, which deal with rape, explicitly state that a man only commits rape against a woman and make no mention of people of other genders.

The new Bill passed in the Lok Sabha does not fill that 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.”

If passed, the Act will codify that the crime of sexual “abusing” a trans person, or endangering their life, health, safety or well-being through verbal, physical or sexual abuse will be seen as merely a “petty crime”. It also means that the only law that deals directly with the crime of raping a transperson will state that this crime is punishable with a much lesser sentence prescribed to sexual crimes against woman.

Destroys the notion of gender self-identification

The 2014 NALSA judgement stated that transgender persons had the right to gender self-identification and that a trans person could choose to identify as a male, female or third gender.

Gee explains that the government’s Bill says that one has to go though a District Magistrate to receive a certificate and the DM is allowed to give you 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 a certificate identifying one's gender.

“The SC’s judgement says you are allowed to self identify, but these procedures are in direct contradiction to that. If you are given a certificate saying you are a trans person only, then where is the self-identification in that? I identify as male, but they'll only give me a trans card, right? It’s in contradiction of the SC judgement that states that without surgery and without hormonal treatment, you can self-identify your gender as male, female or trans,” Gee adds.

As Grace Banu mentions, for the past year and a half, trans activists have voiced their opposition to this Bill and have been meeting the Standing Committee and other Parliamentarians, to recommend changes in the Bill.

However, she states that none of their most crucial suggestions were taken. Gee Imaan describes the 27 amendments as mere “cosmetic proofreading changes.”

Grace Banu recollects that recently, three trans people struggling for jobs wrote to the President of India, asking him to cancel their citizenship as their fundamental rights were meaningless without reservation in employment in education.

“If all this [discrimination] is happening, and the government is not giving us any other solution, then how do we live? How do we sustain our lives and go forward?” Grace asks.