Recently, the Standing Committee on Social Justice and Empowerment chaired by the BJP Member of Lok Sabha, Ramesh Bais, and composed of 17 Lok Sabha Members and 10 Rajya Sabha Members, presented its 43rd report on the Rights of Transgender Persons Bill, 2016.
My first reaction on reading the report was gagging, followed by laughter, frustration and sadness – in that order.
Then, I kicked myself for holding onto a shred of belief that the Brahmanical state ever intended to extend any rights to trans or intersex people. In spite of all our efforts to educate the Standing Committee, the report relies heavily on the imagination of trans people as Hindu mythical creatures like Ardhanareeswara.
Before we get to the committee’s report, here’s a brief background of the issue.
On April 15, 2014, the Supreme Court delivered a judgment, which was widely celebrated as a landmark judgment that upheld the right of trans people to self identify our gender as male, female or third gender, irrespective of gender affirming surgeries or hormonal therapy.
This right to self identify gender without medical interventions or certification is not unique and has international precedent in New York, Malta, Colombia, Argentina, Denmark, Italy, Ireland and Ecuador. The judgment was to be implemented in six months.
As is typical in the world's largest "democracy", the implementation never happened due to various departments and ministries of an apathetic government playing a lethargic game of ping pong with the judgment.
Two bills and a report
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. Though it was passed unanimously in the Rajya Sabha, it disappeared into a bermuda triangle situated someplace in the Lok Sabha.
In December 2015, the Ministry of Social Justice and Empowerment put up a draft of The Rights of Transgender Persons Bill, 2015 and sought comments from the public to be sent by January 2016. Many trans led groups sent recommendations to this draft, none of which was taken into account by the Ministry when they drafted the more draconian The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2, 2016.
Again, trans led groups and legal advocacy groups sent recommendations and some groups deposed before the Parliamentary Standing Committee in a bid to educate them.
But despite these efforts by trans led groups, the report that the committee submitted on July 21 - with replies from the Ministry of Social Justice and Empowerment - is a farce.
Use of the derogatory term, ‘eunuch’
The report begins with, “Eunuchs are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Their fortunes are determined to a large extent by their looks. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups. India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today.”
The committee believes that trans/intersex people (it is unclear who they are referring to when they use the derogatory term “eunuch”) are peculiar to the South Asian context. It's amazing that they have missed out on the transgender tipping point in the West in-spite of the power of globalised American news! Clearly, the committee is also ignorant of the fact that in January 2016, the Karnataka government submitted to a high court Division Bench comprising acting Chief Justice Subhro Kamal Mukherjee and Justice Ravi Malimath that it will remove the word ‘eunuch’ from Section 36 A of the Karnataka Police Act.This follows a PIL that was filed by the Karnataka Sexual Minorities Forum which sought to declare Section 36A of the Karnataka Police Act as unconstitutional.
It is ironic that while using the derogatory term “eunuch”, the committee points out that the term “hijra” [used commonly as a term of self identity among many trans women] carries with it “an obvious sense of denigration.”
The report goes on to say, “Eunuchs lived fairly secure lives working as domestic 'girls' in the homes of wealthy people and by performing during numerous ritual ceremonies. This role of eunuchs ended with the advent of the British rule and abolition of many kingdoms. Eunuchs were left with no means of supporting themselves. Hence, they exist in this pitiable condition in the Indian subcontinent."
Such conclusions lacking any sociological or historical basis wouldn't pass muster even in the term paper of an undergraduate student in any of the universities in India. But clearly, the Ministry believes that the golden period of trans/intersex people in the subcontinent was destroyed by the British, instead of our collective disempowerment being the result of various factors like caste, patriarchy, state apathy, transphobia, lack of awareness, public prejudices etc, in addition to the criminalising laws of the colonial empire and the nation state.
The myth of ‘misuse’
The ministry has pinned down the definition of transgender persons as -
(A)neither wholly female nor wholly male; or
(B)a combination of female or male; or
(C)neither female nor male.
The portion of the draft bill which included a definition of “those whose sense of gender does not match with the gender assigned to that person at the time of birth and include trans men and trans women, persons with intersex variations and gender-queers,” has been struck down by the Ministry. They cite the reason that any person could claim that their gender doesn't match that which is assigned to them and the screening committee would have no way to judge or certify.
They claim that widening the scope of the definition would open it up to misuse! Why any person would fake being a trans person given that there are no real welfare schemes being proposed and given the many social disabilities that come with such an identity is indeed baffling.
The committee must educate itself
The recommendation of the committee to rename the bill "The Transgender and Intersex Persons (Protection of Rights) Bill, 2016,” was shot down by the Ministry which believes that, "Transgender is an umbrella term which includes intersex persons also. Re-wording the title of the Bill would not serve any purpose."
The committee is quickly convinced by this view and agrees with the Ministry in the report. This, in spite of hearing a brilliant, in person deposition by Sampoorna working group team member, intersex activist Chinju Ashwathi, in which he patiently answered intrusive and inappropriate questions from the Parliamentary standing committee in December 2016.
This, in spite of multiple attempts both in person and in writing to educate the standing committee on the differences and overlaps between trans and intersex categories.
Certification not self-identification
A trans or intersex person would have to apply to the District Magistrate, who, on the recommendation of a district screening committee following a physical examination will be certified only as transgender. On the basis of this certification, it is proposed that all the identity cards like voter id, adhaar card etc will be changed, effectively making us all carry the burden of being trans everywhere, all the time.
Needless to say, this denies the right of trans people who identify within the binary our basic constitutional right to equality and liberty, a right that is upheld by the NALSA judgment.
The committee in the report, points out that a physical screening process is demeaning and in violation of the Supreme Court judgment and the constitution, but then, quickly backtracks and agrees with the ministry when the latter insists on this humiliating procedure as being necessary to prevent misuse.
Undue insistence on natal families
The bill states that transgender children be allowed to stay only with natal families and that if the immediate family is unable to care for the child, on the order of a competent court, the child should be placed in a rehabilitation centre.
The committee recommended that hijra families of adoption should be recognised as a lot of young trans people leave natal families due to violence, and have only hijra families for support. The ministry however struck down the recommendation by claiming that “parallel systems” cannot be allowed to exist and that if this is allowed the bill will have no meaning for the transgender community!
The ministry also further said, "As long as Transgender Person is a child, he/she should not have a choice to reside other than the household where parent or immediate family reside as it would increase the chances of his physical and sexual abuse.”
It would be naive to believe that the ministry is not aware that the most sexual abuse across genders are instances of incest within natal families. To claim that there would be increased chances of physical and sexual abuse in a matrilineal hijra system than in natal families is an improbable and ignorant hypothesis. Of course, there may be hierarchies and instances of violence within hijra families like any other, but to de-legitimise as “parallel systems” our families of choice that exist as sole survival, support systems when traditional ones have failed us miserably is brutal.
Criminalisation of begging
The bill states - “Whoever, compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government 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."
The committee voiced its concern that though “well intentioned”, this might be used to harass and criminalise trans people who beg of their own volition or due to lack of employment opportunities. The ministry responded in an off handed manner that skill training will be given once the Bill is passed. However, when the Committee asked for specific schemes and programmes in the Bill to support the livelihood of the transgender persons, the Ministry replied that "it is not possible to put everything in the Bill as the same is derivative in nature"!
The Ministry is completely silent on crucial issues like health, education, social security, marriage and adoption, reservations under economically and socially backward classes, penal provisions against foeticide and forced surgeries on intersex infants.
The bill provides for a punishment of only imprisonment for a term which shall not be less than six months but which may extend to two years and with fine for whoever denies trans persons public passage or access to public places, forces a transgender person to leave a house-hold, village or other place of residence or harms/injures/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. In a broad sweep, the bill mentions a range of crimes, makes no mention of relief amounts or whether the crimes are bailable/non-bailable.
In comparison, The Criminal Law (Amendment) Act, 2013 details a wide range crimes against cisgender women and greater punishments.
But this law will not protect even the trans people who identify as women if they are all certified as proposed by the committee as “only transgender.”
Two days back, there were reports of a court letting off all four accused of gang raping a 19-year-old trans girl in Wadgaon Budruk, Pune citing that neither sec 377 [under which the case against the accused was filed] which criminalises “carnal intercourse against the order of nature with any man, woman or animal” nor IPC 376 which is the anti rape law which mentions women as the victims/survivors are applicable to a victim/survivor who is trans identified. This is the same judicial system that the Ministry refers to in the report as "robust" and capable of handling crimes against trans people!
The question then remains, why this farce?
Gee Imaan Semmalar is a trans activist and artist living in Bengaluru.
Views expressed are the author's own.
All images by Gee Imaan Semmalar.