Transgender Bill Violative Not Protective: Here's Why Transpersons Are Agitating Against the New Bill

New Delhi: The transgender community in India has been agitating ever since the government in a surprise move on Monday passed the Transgender Persons (Protection of Rights) Bill in the Lok Sabha.

Many from the community have come forward through social as well as legacy media to speak against the sudden passing of the bill. According to many transpersons, instead of empowering the community, the 2016 Bill is set to further weaken their position in the country and reinforce the atrocities and prejudices against transpersons.

"We had no information about what is being presented in the Parliament. Hardly any transpersons were consulted and most of our recommendations were not incorporated," said Anindya Hajra of the Pratyay Gender Trust. The activist further added that because of the Bill, their lived realities will be completely erased. "It is violative and not protective. It is unconstitutional," Anindya said. Many have been outraging against the passing of the Bill.

Violation not Protection

In light of the events, some transpersons, sex workers, activists and lawyers got together in Delhi on Tuesday to speak out against the flaws of the Bill. The activist also reminded the journalists present at the press meet that the Bill was going against the Supreme Court's NALSA judgment that said transpersons should be given affirmative action.

"The bill is problematically silent on the the matter of reservation for transpersons in jobs and education sector. It is no secret that the community still faces joblessness due to prejudice," Anindya said.

The activist stressed that instead of investing in providing education, healthcare and job opportunities, the government was criminalizing transpersons for organised begging.

A double attack is the colluding effect the Transgender Bill has in collusion with the Anti-Trafficking Bill which was passed in the Monsoon session of Parliament in July this year. It was purportedly aimed at increasing prevention, rescue and rehabilitation of survivors of trafficking.

However, the Bill does not take into consideration consensual sex work and seeks to forcefully 'rehabilitate' each survivor by sending them back to their families or rehabilitation centres. Many transpersons as well as sex workers have since claimed that the law is meant to target them.

Transpersons are often forced or obliged to earn their living through sex work. Lack of reservations and prejudice means that the community continues to suffer in the job market. With organised begging - another profession that employs, however frugally, many members of the transcommunity - criminalised for them with a maximum incarceration of 10 years.

The Anti-Trafficking Bill is also problematic for the transcommunity as it criminalised administering hormones and medication to a person without making the distinction between coercion and assistance. Another shocking flaw in the Bill as pointed out by Karthik Bittu of the Telangana Hijra Intersex Transgender Samiti is the complete lack of protection for the 4.9 lakh (so far recorded) transpersons living in India.

No protection from sexual violence

The Transgender Bill does not mention any punishments for rape or sexual assault of transpersons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman. In terms of protection, the Bill offers a measly six months to two years imprisonment for those found guilty of atrocities against transpersons as mentioned in the Bill.

Bittu also stressed on the fact that the Bill's focus on the biological family was disturbing. "The fact that they won't accept adopted families or companions of choice as families is odd. Are we children that we have to stay with our parents?" Bittu asked. He added that it was a consorted effort to destroy the culture of Hijra, Aravani elders adopting young transpersons and providing them with basic amenities and a safe space. The Bill is up for clearance in Rajya Sabha in the next two days and the community is hoping for better sense to prevail. They have approached several members of the Rajya Sabha and would be organising rallies by the end of the month to protest the passing of the Bill. They have also sought support from political parties and ministers like Congress's Shashi Tharoor, who has been vocal in his criticism of the Bill.

Among other problematic aspects of the bill is the fact that it takes away the transperson's power to self determine their gender. Though the Bill rewrote the older definition of transgender with a slightly more acceptable one, the definition is still vague and invites abuse of interpretation. And despite several rounds of submissions from the trans community, the Bill maintained that transpersons would need external certification to be established as transpersons.

This also goes against the NALSA judgement that had made it clear that a trans person had the right to self-determine their gender and identify as a boy, a girl or the third sex. As per the current Bill, a person has to apply to their local District Magistrate to first be certified as a transperson. Then, if they want to be specified as a man or a woman, the person will have to go through 'surgery' and then obtain a the required documentation through a District Screening Committee.

Cannot self-determine own gender

According to Bittu, most persons with non-binary sexual identities realise it early on. They may not confront it or tell their friends or family but the conflict arises early on. "I knew when I was 6 that I wanted to be a man. Why should I need to go through hoops to prove my sexual identity?" he said, adding that the apathy was reflective of the present government's apathy toward minorities.

"The Bill was passed under the counsel of cis men. The people judging me for my gender would most likely be cis men. It's just a humiliating slap in the face," Meera said. If the Rajya Sabha passed the Bill unchanged, the transgender and LGBTQ community shall not take it lying low, she added.

The Bill, which was passed with 27 amendments amid a ruckus in the Lok Sabha, is expected to be approved by the Rajya Sabha during the Winter Session of Parliament.