The Transgender Persons (Protection of Rights) Bill, 2016 has been passed in the Lok Sabha with the full blessings of the cabinet. This bill is a redrafted version of the ‘Rights of Transgender Persons Bill’ drafted by the Ministry of Social Justice and Empowerment in 2015.
The current bill – referred to as the TG Bill 2016, comes on the back of a series of legislations and verdicts that have given members of the transgender community in India some cheer. Particularly the NALSA vs. Union of India verdict by the Supreme Court of India, which for the first time gave transgender persons the right to self-determine their identity.
And so there was some hope that this current bill would expand on those rights, and provide ways and means by which trans-persons – some of the most marginalised, oppressed people in the country – could seek recourse under the law for crimes committed against them. Given that the transgender networks, organisations and individuals had sent in their recommendations, inputs and amendments to the draft bill of 2015, and that the MSJE had held consultations with members of the community in various cities, this hope was not too misplaced.
That hope has been dashed.
The TG Bill 2016 is a watered down version of the draft bill of 2015, and compared to other legislation that appeared before it, many steps backward.
No right to self-determination of identity
Gone, in this bill, are the rights to self-determine one’s identity. Gone is the recognition that the transgender community in India is not homogenous, and comprises a range of socio-cultural identities and lifestyles.
Chapter 1 of the TG Bill 2016 says:
"transgender person" means a person who is—
(A) neither wholly female nor wholly male; or
(B) a combination of female or male; or
(C) 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."
In one fell swoop, this bill has negated every bit of progress the transgender community has achieved (and paid a heavy price for doing so) by defining trans identity as a conflict with the binary male or female identity.
There is very little public knowledge about intersex variations, and many a time, persons with intersex variation may never be aware of their particular variation. And thus, not all intersex persons need identify as transgender. These are two very different sets of circumstances and lived experiences; significant overlaps exist, it is true. Just as exist vast points of differences. However, by confusing intersex persons with transgender persons, and by lumping these two sets of people together, the people who drafted this bill have established their acute ignorance of the community they seek to address, and have created more problems and potential for discrimination among them.
Contrast the TG Bill 2016’s phrasing, with the clause from Tiruchi Siva’s TG Bill 2015:
"(t) ‘transgender person' means a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as — kinnars, hijras, aravanis, jogtas etc."
Not only is Tiruchi Siva recognising that a person’s gender is assigned to them by others at birth, and that a transgender person’s intrinsic sense of self need not be based on this compulsory assigning, Siva also acknowledges that not all transgender persons need to necessarily seek medical or surgical interventions in order to identify with the gender they are most comfortable with. This allows every trans person absolute right and control over their bodies, their selves.
No way to seek justice
Gone is the acknowledgement that caste divisions within the transgender community further victimises an already vulnerable set of people. Gone too, in this bill, are specific ways for trans persons to seek justice in the case of discrimination, violence, abuse and a denial of rights.
Where Tiruchi Siva’s bill sought to provide a special fast-track court to hear cases pertaining to the trans community:
TRANSGENDER RIGHTS COURTS 46.
For the purpose of speedy disposal of suits of a civil nature which may be filed by on behalf of transgender persons regarding infringement of their rights as a transgender person, under this or any other law for the time being in force, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification in the official gazette, specify for each sub-division, a court to be a Special Transgender Rights Court for the hearing and disposal of such suits and criminal cases, as prescribed
this current bill is silent on the violence trans people face. There is no single mention of what justice can a trans person seek. Yes, there is an 'Offenses and Penalties' section, but that leaves one in doubt about what exactly the course of action is. There is no mention of approaching competent authorities (the Police, an Executive Magistrate, as outlined in Tiruchi Siva's bill) or any guidelines to the authorities on how to provide assistance to a trans person facing discrimination. Tiruchi Siva’s bill recommended changes to the Indian Penal Code to cover cases of sexual assault on trans persons, which this bill makes no mention of.
Family gets 'custody' of a trans person
But by far the biggest transgression that the 2016 TG Bill commits, is the very sweeping rights it confers upon ‘family’ to retain custody of a trans person.
In many instances, it is the family that is the seat of violence, abuse and a denial of identity for a young trans person. For transgender children, and minors, the family and the natal home become places where the right to self-determine gender, and to express that gender through various means, are severely curtailed. Young transgender girls are compulsorily made to conform to the male gender they were assigned to, often with verbal and physical abuse. Young transgender boys have their movements restricted, the full weight of patriarchy descending on them to keep them in their place – the house.
The only recourse for such transgender children, is to run away from the natal home. More transgender children are homeless, and at risk of sexual and physical abuse. For them, the Hijra families, the Jamaads or dormitories are places of refuge, the hijra elders their adoptive parents, the hijra community their family and friends.
This reality of the transgender experience is reflected in the TG Bill that Tiruchi Siva introduced in the Rajya Sabha. It says:
(1) No child who is a transgender shall be separated from his or her parents on grounds of being a transgender except on an order of competent Court, if required in the best interest of the child.
(2) Where the immediate family is unable to care for a transgender child, the competent Court shall make every effort to place such child within his or her extended family, or within the community in a family setting.
Explanation — ‘Family’ means a group of people related by blood, marriage or adoption to a transgender person.
On the other hand, the TG bill of 2016 proclaims that:
1) No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person.
(2) Every transgender person shall have—
a) a right to reside in the house-hold where parent or immediate family members reside;
b) a right not to be excluded from such house-hold or any part thereof;
c) a right to enjoy and use the facilities of such house-hold in a non discriminatory manner.
(3) Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.
Not only is there no mention of adoptive families, families by choice, there is this further clause:
"forces or causes a transgender person to leave house-hold, village or other place of residence;"
which, combined with:
Whoever,—
(a) 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;
is a point of huge, huge worry.
The new clause penalises those enticing or compelling a transgender person to beg. Let us ignore, for the moment, that one does not feel enticed to beg. Let us ignore that often times, given the prejudiced and repressive society we live in that denies transgender people life and livelihood, begging is the only way transgender people – mainly transgender women – survive. This clause puts Hijra and Aravani community elders – the adoptive parents of young transgender persons – under undue risk. The Hijra family system becomes unnecessarily and unfairly criminalised in this bill. This bill – contrary to protecting transgender persons’ rights, ends up severely curtailing them and even harming the lives of members of the community.
By excluding – either wilfully or out of ignorance – the ground realities and lived experiences of transgender persons, the TG 2016 bill is perpetuating the very violence/discrimination it seeks to address, and has negated any progress that NALSA or Tiruchi Siva have achieved. It is therefore very worrying that the government is pushing hard for this bill to become law.
Nadika N is a non-binary trans woman and a writer currently based in Bangalore. She tweets at @nadjanadika