The recommendations of a parliamentary panel looking into the rights of this community may be put on the back-burner, setting back any progress made for a more egalitarian society
~By Chandrani Banerjee
A parliamentary document to recognise the rights of transgender persons may turn out to be a damp squib. The Ministry of Social Justice and Empowerment seems in no mood to consider the recommendations made by it regarding job reservations and laws related to marriage and divorce of transgenders. There are reports that the ministry might re-introduce its own version of the Transgender Persons (Protection of Rights) Bill in parliament.
Sources in the ministry confirmed to India Legal that the recommendations of the parliamentary panel have not been fully considered. The report was meant to decriminalise transgenders so that they aren’t persecuted under Section 377 which deals with “carnal intercourse against the order of nature with any man, woman or animal…”
Though the panel comprising 18 Lok Sabha MPs had tabled its report on the floor of the house in July 2017 and had marked provisions to be included in the Bill to safeguard their rights, transgenders feel that without addressing the real concerns, this would mean nothing.
As the Bill has not addressed several crucial issues, it is being viewed as just an exercise to keep the record straight. The Bill, say transgenders, should have recognised their civil rights in marriage, divorce and adoption.
“This matter should be looked at with more depth. On the surface, nothing is going to change. This is one more exercise to bring in a law. But this subject is beyond law. It is about breaking age-old stigmas, changing mindsets and forward thinking.”
—Vyjayanti Vasanta Mogli, transgender activist
Speaking to India Legal, Shatabdi Roy, member of the Parliamentary Panel on Social Justice and Empowerment, said: “I have interacted with transgenders. I came to know many aspects of their lives not generally known. They are facing exploitation at every level. We need to empower them by giving them their basic rights. Enacting a law takes time, so I will wait for at least two sessions to see how much is done. If their basic rights of jobs and marriage have not been addressed, I will take it up.”
Another standing committee member, Dr Narendra Jadhav, said: “I stand by all the 84 recommendations we made and want them to be incorporated. I fully support the Standing Committee Bill. We have done our part. Now we have to see how it is taken forward.”
There were many fears among transgenders about the provisions of the proposed Bill. The Bill says a transgender must obtain a certificate of identity as proof of recognition as a transgender to invoke rights under the Bill. Such a certificate would be granted by the district magistrate on the recommendation of a screening committee, which would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official and a transgender. It defines a transgender as one who is partly female or male; a combination of female and male or neither female nor male. In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.
The proposed Bill also prohibits discrimination against a transgender person in areas such as education, employment and healthcare. It directs the central and state governments to provide welfare schemes in these areas.
Offences like compelling a transgender to beg, denial of access to a public place, physical and sexual abuse, and so on, would attract up to two years’ imprisonment and a fine.
Though the Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution, objective criteria may be required to determine gender in order to be eligible for entitlements.
The Bill states that a person recognised as transgender would have the right to “self-perceived” gender identity. However, it does not provide for the enforcement of such a right. A district screening committee would issue a certificate of identity to recognise transgender persons.
The definition of transgender persons in the Bill is at variance with the definition recognised by international bodies and experts in India. The Bill includes terms like “trans-men”, “trans-women”, persons with “intersex variations” and “gender-queers” in its definition of transgender persons. However, these terms have not been defined.
Reacting to the provisions and alleged rigidity of the ministry, Dr Amitananda Chakraborty, an advocate and an activist working for transgender rights, said: “Reports have appeared in the media that the ministry has rejected the Standing Committee Report on the Transgender Persons (Protection of Rights) Bill, 2016. It is extremely disappointing and dangerous. The Standing Committee had made more than 80 recommendations to make the Bill effective and strong. Though the Committee did agree with the contentious provisions of the District Screening Committee for the recognition of identity of transgender persons as well as the provision criminalising ‘enticing’ a transgender person into begging, the community was totally against both. Overall, the recommendations were a huge improvement on the Bill, and should have been accepted. This again shows the contempt with which the government views the parliamentary process of the standing committee as well as the concerns of the transgender community. The present Bill constitutes a frontal attack on the dignity and freedom of transgenders and is a clear attempt to negate the landmark Supreme Court judgment in 2014.”
The Madras High Court, while reacting to a petition by two transgenders, said a decision on the passage of the Bill should be taken at the earliest because people were suffering.
The Court said that the central government should inform it whether follow-up action would be taken to make the Transgender Persons (Protection of Rights) Bill, 2016, a statute.
The Court took note of the fact that the parliamentary panel meant to study the subject had submitted its report in July 2017. Keeping in view the time that had elapsed, the Court questioned the central government about the progress.
Speaking to India Legal, transgender activist Vyjayanti Vasanta Mogli said: “There are five contentious issues that we want the government to reconsider. We want that WPATH guidelines (these are ethical guidelines concerning the care of patients with gender identity disorders) should be followed when the Bill is prepared. These guidelines are followed worldwide for us. I want the government to address the issue of sexual identity. I want a law that will legally take care of abortions of intersex foetuses and forced surgical procedures of intersex infants. Most importantly, I want it to recognise alternative family structures such as adoptions of transgender children by the Hijra and Aravani communities. I want a group of people related by blood, marriage or adoption of a transgender person to be called a family.”
She said she differed with the proposed definition of transgender persons by the ministry which states “neither wholly male or female, a combination of female or male, neither female nor male”. “This should be about gender,” she stressed.
Reacting to the move to junk the parliamentary panel’s recommendations, Social Justice and Empowerment Minister Ramdas Atawale said: “This is a transition phase. Things are shaping up. The ministry is looking at every aspect that will help the community. I would suggest to look at the whole thing with a positive attitude.”
Among the 84 recommendations, the panel also asked for reservations, provisions against discrimination, penalties on government officials who subject transgenders to any kind of violence, skill training to wean them off begging, and separate public toilets for them.
“This matter should be looked at with more depth. On the surface, nothing is going to change. This is one more exercise to bring in a law. But this subject is beyond law. It is about breaking age-old stigmas, changing mindsets and forward thinking. Educated and economically strong transgenders can be an asset. It is just how we look at the issue,” said Mogli.
Till such time as mindsets change, the plight of transgenders will remain the same in India.