India's “murder of gender justice”

The Transgender Persons (Protection of Rights) Bill, 2019 was passed by India’s Rajya Sabha or Upper House of the Parliament on 29th November 2019. It subsequently became law after the President’s endorsement. The bill was passed despite opposition by members of the transgender community and activists.

When the bill was passed in the Lok Sabha or Lower House of the Parliament 11 months ago, transgender people, lawyers, activists working for gender justice, Members of Parliament (MPs) and politicians had criticised it.

The bill was introduced in the Rajya Sabha by Social Justice and Empowerment Minister Thawar Chand Gehlot on 20th November despite protests from transgender communities across the country who called it unconstitutional and a violation of fundamental rights.

Trans rights activist Grace Banu said in Chennai that it was terrible. “We do not want this bill. We reject it outright. The government has passed this bill and murdered gender justice in India,” she said.

According to the activist, this bill strips transgender people of their right to determine their gender and binds them to the gender binary. Grace, who has been a part of the anti-trans bill movement, says most of the MPs, who voted on the bill, had no understanding of the bodies of transgender people or their experiences.

The government claims that this bill will protect the rights of trans people, while the transgender community believes that the bill is regressive and also does not ensure the community’s participation in education, health, and employment. The community demanded the government to amend the bill.

In April 2014, the country’s Supreme Court recognised the transgender community as the third gender, followed by males and females. The National Legal Services Authority of India (NALSA) was the primary petitioner in the case. The court declared that the basic rights conferred under the constitution of India will be uniformly applicable to trans people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is seen as a significant step towards gender parity in India. The top court asked the government to enact a law for the rights of the transgender community.

Subsequently, the government made the first draft of the Transgender Persons (Protection of Rights) Bill, in 2014. Trans people pointed towards several shortcomings in the bill and suggestions were obtained from them and then the bill was finalised.

Activists said even the final draft of the bill violated the Supreme Court verdict that recognised the right of transgender people to decide their gender. According to the new bill, transgender people will need a medical certificate for their trans rights.

The certificate will be issued by the district magistrate. A screening committee will issue a recommendation for every person to the district magistrate. The committee will comprise of a medical officer, a psychologist, a government officer, and a transgender person. Members of the community say that asking some kind of certificate for their physical gender identity is insulting in itself.

Bittu K, a transgender rights activist, says, "the way the bill calls for medical examinations and certificates is horrifying. It is very unfair to ask transgender people to appear before a screening committee who do not have knowledge about them. Doctors and hospitals have a narrow perception of the transgender community, and the community members face harassment and exploitation in hospitals.”

The activist also said, “the government has not accepted any of the recommendations made by the transgender community in this bill.”

Activists point out a clause in the bill criminalises begging for transgender people and it prescribes prison term for anyone who forces or lures a transgender person to indulge in the act of begging.

Activist Tripti Tandon of Lawyers’ Collective, a legal services organisation, pointed out the transgender people do not have any other source of livelihood and so most of them seek alms or engage in sex work. Therefore this clause will deprive them of their only source of income, she says.

Bittu says, "the bill is silent about providing employment security to the community. No quota has been provided to them in any field. On the other hand, the bill declares all the present means of livelihood for the community as illegal without providing any alternative."

Sexual exploitation and rape of a woman are punishable with imprisonment of at least seven years. But the bill prescribes imprisonment of six months to two years for crimes against transgender people. Bittu said it is discriminatory and it is clear the government does not treat transgender people at par with others.

The National Human Rights Commission (NHRC) conducted a national survey for the transgender community in India and found that 92 percent of members of the community are denied the fundamental right of livelihood. As they do not find it easy to get jobs, they are forced to engage in works such as begging and sex work. But the bill says begging is a crime. This will greatly increase the difficulties of the community already facing economic and social exclusion, activists say.

An activist Anindya said the bill does not provide alternative employment although it criminalises begging.

Meera Sanghamitra, an activist associated with the National Alliance of People's Movements (NAPM), said that the government does not care about the community and the bill violates their rights.

Activists say the government bypassed a very progressive bill for the transgender community that was prepared by the member of parliament Tiruchchi Shiva and it was even cleared by the Upper House. The bill contained many important things for transgender people including a quota for them in many fields.

Activist Tripti Tandon said that "according to the parliamentary process when a bill on a subject is passed in a House, no other bill on that subject can be introduced in Parliament until a final decision is reached on that bill. But the parliamentary process has been violated by the government as it introduced the Transgender Person (Protection of Rights) Bill, in the Parliament although MP Tiruchi Shiva had prepared a legislation for the rights of the transgender community and it was cleared by the Upper House but was not introduced in the Lower House. Instead, another bill was introduced in the Lower House. Thus the government undermined the dignity of Parliament.”