The passage of the Transgender Persons (Protection of Rights) Bill, 2016, into law in India will undermine the rights of the very individuals it seeks to protect.
Transgender rights activists in India have called December 17 – the day the Lok Sabha hurriedly passed the Bill – a “Black Day”. When the Bill was introduced in Parliament in 2016, transgender rights activists and civil society organisations had highlighted numerous flaws, and called for amendments in line with national and international human rights standards. However, despite the government introducing 27 amendments to the original Bill, major problems have not been addressed.
The Bill has been called “violative” and an instrument to “deepen the apartheid” against the transgender community. Transgender rights activists worry the Bill has left them exposed, at the mercy of a law that will break their backs before it does anything to protect them. For a group that has been demonised, persecuted and marginalised for centuries, the renewed urgency to stop the passage of this Bill must be paid mind, and fast.
If passed into law in its current form, the practical impact of the Bill will be very different from the intention stated in its title.
Self-defined gender identity
The Bill fails to legally recognise a self-defined gender identity – which is a cornerstone of the universal battle for transgender rights and has been recognised by the Supreme Court. In 2014, in National Legal Services Authority versus Union of India, the Supreme Court stated that a trans person could choose to identify as male, female or third gender. But what this Bill does is require transgender persons to go through a district magistrate and “District Screening Committee” to get certified as a trans person. It lays out a vague bureaucratic procedure to be followed for legal gender recognition, which violates the right of trans persons to have their self-identified gender recognised.
The Bill also restricts recognition of gender identity, as it only provides for transgender persons to receive identity certificates recognising them as “transgender”. A trans person who identifies as a man or a woman would have to undergo procedures such as surgery or hormone therapy before they could apply to the district magistrate for a certificate recognising their change in gender.
Such provisions will perpetuate a permissive environment for abuse. The Bill does not do much to restore dignity to the community if the identity of transgender persons must be so intrusively scrutinised as per government policy.
Affirmative action
Transgender persons in India have historically faced discrimination in many areas, including access to education, employment, health care and housing. While the Bill prohibits discrimination, it does not explicitly include a definition of discrimination that covers the range of violations that transgender persons face.
Stigma, taboo and social exclusion have resulted in many members of the community undertaking sex work, begging and dancing at events. A reasonable and necessary demand was made by the community: economic equity through employment opportunities that would be reserved for them. However, despite the Supreme Court in 2014 directing the government “to extend all kinds of reservations in cases of admission in educational institutions and for public appointments” to transgender persons, the Bill does not contain any provisions related to affirmative action.
Not only does the Bill ignore affirmative action, there is also a risk that it will criminalise transgender persons begging of their own volition. Criminalisation of anyone who “compels or entices a transgender person to indulge in the act of begging” increases the risk that transgender persons – many of whom have limited employment opportunities – will be criminalised because of misuse of the law, as has occurred in several instances.
Without creating a viable alternative, the government is curtailing what is often the only means many transgender individuals have of sustaining themselves.
Inadequate protection
Even the most cursory observation of the state of the transgender community in India will reveal innumerable cases of crimes against transgender persons, including rape, assault, stalking and harassment. The Bill recognises certain categories of crimes committed against transgender persons, all of which are punishable with imprisonment of up to two years.
In 2013, the Indian Penal Code was amended to expand the definition of rape and recognise a broader range of offences against women, including acid attacks, voyeurism, stalking, sexual harassment and disrobing. While transgender persons often face similar abuses, the Bill does not fully recognise the range of violence they face, and does not provide for sentences commensurate with their gravity. Additionally, the Bill does not specifically recognise, and provide appropriate penalties for, violence that transgender persons face from officials in educational and health care institutions, police stations, jails, shelters and remand homes, or other places of custody.
This Bill simply does not go far enough to protect transgender individuals who are subjected to abuses relentlessly, and with relative impunity.
Gaping loopholes
The Indian transgender community is understandably devastated with the sheer lack of protections afforded by this Bill. If there was a genuine willingness within the government to help improve their lives, it seems to have been squandered by a Bill with gaping loopholes. It appears to wilfully ignore the on-the-ground concerns of the community that require the law to explicitly be on their side.
After being passed by the Lok Sabha, the Bill is now pending in the Rajya Sabha. If the necessary outrage that this Bill has induced does not stop it from being passed and pave the way for change, then the message to the transgender community in India is clear: the government neither understands their concerns, nor does it wish to.
Aakar Patel is Executive Director of Amnesty India.
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