On the Inadequacy of the Transgender Persons (2019) Bill
On 5 August 2019, amidst the chaos and consternation that followed the Indian government’s unilateral decision to revoke the constitutionally unique status of Jammu and Kashmir, the Transgender Persons (Protection of Rights) Bill 2019 (the “2019 Bill”) was passed by a voice vote in the lower house of India’s bicameral legislature. The 2019 Bill had been introduced less than a month earlier by the Minister of Social Justice, Thawar Chand Gehlot, to a muted and generally negative reception from transgender rights activists. Promoted by the Ministry of Social Justice as a progressive piece of legislation, it was argued that the 2019 Bill would, if passed into law, finally ensure equality for the transgender community in India after numerous previous legislative attempts to do so had failed. However in this article it will be argued that, contrary to the minister’s assertions, the 2019 Bill markedly erodes a number of the foundational advances that have been made in transgender rights in recent years.
The National Legal Services Authority v Union of India (“NALSA”) case:
In April 2014, the Supreme Court of India issued a judgment in the NALSA case that appeared to have permanently revolutionised transgender rights in India. The Court recognised that, as transgender individuals were “neither male nor female” and given the fact that Indian law, at the time, recognised gender in a strictly binary sense, transgender individuals were deprived from accessing their fundamental rights and were therefore subject to unconstitutional discrimination. In two sweeping judgments, Justices Radhakrishnan and Sikri recognised that transgender individuals constituted a “third gender,” thereby recognising that the foundational rights enshrined in the Indian constitution ought to apply not only to males and females, but also to transgender individuals.
Secondly, Justice Radhakrishnan rejected the notion that gender ought to be understood is a strictly biological or socially predetermined sense and instead advanced the idea that individuals ought to have the right to define their own gender. A logical corollary of this is that any laws that prescribe preconditions, such as gender-reassignment surgery or medical screening, in order to either legally determine a person’s gender or legally sanction a change in a person’s gender would be unconstitutional. In a series of directions, the Court also urged both national and state level administrations to take decisive action such as the implementation of reservations to improve access to employment, health facilities, and education for transgender individuals.
However, whilst the NALSA decision was undeniably progressive in some ways, it is worth noting that some of the Justices’ reasoning is contradictory and flawed. For example, whilst both Justices emphasised the right of transgender individuals to determine their own gender, in the Court’s first directive one Indian transgender community, Hijras (otherwise known as Kinnars), are explicitly stated to be a “third gender,” which expressly undercuts the right of Hijra individuals to determine whether they are male, female, or “third gender.” Additionally, the Court also appears at several points to conflate transgender people as a whole with the Hijra community in particular and in so doing risks homogenising a varied community.
The 2018 Transgender Persons (Protection of Rights) Bill (the “2018 Bill”)
In 2018 the Ministry of Social Justice attempted to introduce legislation implementing the NALSA judgment through the 2018 Bill which was met with a cacophony of criticism that ultimately led to its failure, not least because Articles 6 and 8 of the 2018 Bill required transgender individuals to apply for certificates of identity. These certificates, in patent and direct contravention of the right of transgender individuals to self-identify their gender, would be issued by District Screening Committees and would be based on medical diagnoses and examinations rather than the testimony of the individuals seeking them.
Furthermore Article 16 of the 2018 Bill, in the author’s opinion, reinforced existing debilitating stigmas surrounding the transgender community in India by calling for the creation of “separate immunodeficiency virus surveillance centres.” Whilst intended to create a safer environment wherein transgender individuals could more freely access the provision of healthcare facilities, in reality in calling for the creation of such centres the 2018 Bill further perpetuated embedded societal stigmas that link venereal diseases to the transgender community.
Perhaps most egregiously, Chapter VIII of the 2018 Bill sought to criminalise anybody who: (i) compels transgender individuals to do forced labour or bonded labour; and (ii) entices a transgender person to indulge in the act of begging. Whilst seemingly innocuous, the provisions of Chapter VIII of the 2018 Bill effectively criminalised a significant part of how transgender communities in India operate and survive. Certain Indian transgender communities, such as Hijras, organise themselves into extended hierarchical “families” led by a guru (teacher). As transgender people face significant discrimination and prejudice, they are often unable to access education or formal employment. Consequently, begging is all too often the only viable means by which transgender individuals survive, and the organisation of these communities into extended hierarchical “families” means that the provisions of Chapter VIII could feasibly have been deployed to criminalise the way of life of certain transgender communities in India.
The 2019 Bill: another false dawn
When introducing the 2019 Bill, Rattan Lal Kataria, one of the Ministers of State for Social Justice, noted that the 2018 Bill had several “serious issues” and had been subject to 27 amendments, “most of which the government had accepted” and implemented in the 2019 Bill. Urging members of the lower house to pass the 2019 Bill, the Minister went on to reassure parliamentarians that the government had conducted “discussions and consultations” with committees of experts on transgender rights in preparing the 2019 Bill.
Certainly, it must be acknowledged that the 2019 Bill no longer contains provisions that would, if passed into law, have criminalised begging by members of the transgender community. Although, the practical impact of this change is mitigated by the fact that more than 20 States in India retain anti-begging legislation modelled on the Bombay (Prevention of Begging) Act 1959. The legality of these anti-begging statutes has been called into question by a 2018 decision of the Delhi High Court, but almost all of them remain in force as at the time this article was written. Consequently, the fact that the 2019 Bill no longer contains provisions that would have criminalised begging by members of the transgender community is at best a hollow victory. Moreover, it is important to note that the 2019 Bill continues to contain the provisions which criminalise the compulsion of transgender persons to do “forced” or “bonded” labour, which could easily be interpreted broadly and applied to transgender individuals who are found to be begging on the streets at the behest of others in their community.
Secondly, the 2019 Bill retains many of the salient features of its predecessor which actively undermine the progress made in the NALSA judgment. For example, the Bill clearly contemplates that, whilst transgender individuals may apply for a “transgender certificate” of identity which would be based on their self-declared identity, any change to that identity (i.e. from transgender to female or male) would require the issuance of a revised certificate to be legally recognised. This would entail a transgender individual making an application to a District Magistrate who, with the aid of a medical professional, has the ability to determine the “correctness” of any such certificate. Although the 2019 Bill sets out no guidelines about how a District Magistrate is to determine the “correctness” of a person’s change in gender, it is clear that this would most likely entail a medical examination and the provision of evidence that an individual had undergone gender-reassignment surgery. Not only would such a process be humiliating but it also flatly contradicts the Supreme Court’s direction in the NALSA case that “any insistence for gender-reassignment surgery” in order to determine or legally sanction a change in a transgender individual’s gender identity is “immoral and illegal.” It is therefore unsurprising that the inclusion of this in the 2019 Bill has been met with widespread criticism from various transgender rights groups and Human Rights Watch. Yet the shortcomings in the 2019 Bill extend far beyond undermining the right to gender self-identification.
In an effort to alleviate the stigma and oppression that transgender people have historically faced, the Supreme Court in NALSA expressly directed that transgender people in India be granted employment and educational reservations. The reservation system is a system of positive discrimination in India wherein a certain number of places at higher educational institutions and public sector jobs are reserved for people from historically disadvantaged groups. Although half a decade has now elapsed since the NALSA judgment, the 2019 Bill remains regrettably silent on the creation of reservations for transgender people. In lieu of concrete legislative measures aiming to increase the integration of transgender individuals into society, the 2019 Bill simply requires the government to “formulate welfare schemes” for transgender individuals.
Finally, Section 375 of the Indian Penal Code defines rape in gender specific terms. That is to say that only a “woman” may be raped—thus transgender individuals (as well as men) who are raped have no remedy in criminal law. It is clearly a positive move that the 2019 Bill seeks to alter the status quo by recognising that transgender individuals can also be raped. However depressingly, upon a closer inspection of the 2019 Bill, those found guilty of rape of a transgender woman are publishable by a fine and/or a custodial sentence of between six months and two years. This is manifestly unsatisfactory, as the existing laws on rape against cis-gender women currently provide a custodial punishment ranging from a minimum of seven years up to a life sentence in certain circumstances. This difference is made all the more pertinent by the fact that transgender individuals are statistically extremely likely to be the victims of sexual violence as, in the absence of adequate opportunities, they are often forced to beg on the streets or turn to sex work. The message sent by the government in drafting the 2019 Bill is stark and disturbing: transgender individuals may be raped but they are still to be treated as second-class citizens who lack the protections available to cis-gender women.
Conclusion
It ought to be evident from the foregoing that the 2019 Bill is just as retrograde and flawed as its predecessor. Despite the suggestions of the Ministers responsible for the Bill, little beyond merely cosmetic changes have been made, and the 2019 Bill not only fails to provide equality and protection to India’s transgender community but also significantly erodes some of the advances made in the NALSA judgment.
Article tags: | intersectionality | transgender rights |
“The 2019 Bill not only fails to provide equality and protection to India’s transgender community but also significantly erodes some of the advances made in the NALSA judgment.” Image source: Ajay Verma/Reuters
“The message sent by the government in drafting the 2019 Bill is stark and disturbing: transgender individuals may be raped but they are still to be treated as second-class citizens who lack the protections available to cis-gender women.“ Image source: IAS EXPRESS
The NALSA case risks homogenising the transgender community. Image source: GETTY IMAGES
An individual holds a flag representing transgender rights. Image source: The Mary Sue
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