VARNIKA MISHRA | 16 JANUARY, 2019
The bill was to be heard in Rajya Sabha, but did not come up this winter session.
NEW DELHI : Opposition to the the Transgender Persons (Protection of Rights) Bill, which the Lok Sabha passed in December 2018, continues, with the LGBT community saying that the bill does little to ‘protect’ them. The bill was to be tabled in the Rajya Sabha, but did not come up this winter session. Activists say this if passed and codified into law, it will further the political, economic and social isolation of the trans community.
Activists highlight various problems with the bill including “the lack of involvement of the community itself.” As Dalit transgender activist Grace Banu put it, “the government did not think of anyone but itself” in formulating the bill.
Speaking to The Citizen, trans rights activist Kaveri Karthik Bittu said that the bill reflected nothing but the “arrogance of the government”. Bittu pointed to the “flawed nature” of the rehabilitation provisions offered by the Bill, saying that these provisions are “nothing but a way to feed into the business profitability of NGOs such as the Salvation of Oppressed Eunuchs (SOOE), run by transphobic individuals like Dr Piyush Saxena looking to profit off of their tie ups with the government.”
The bill pays no heed to the NALSA judgement of 2014 where the Supreme Court held that transgender people have a right to non-binary self determination and directed the Central and State Governments to ensure reservation in education and public employment for the community. In fact, the Bill completely overturns the judgement by mandating Sex Reassignment Surgery (SRS) and criminalising the only means of livelihood for most trans people: begging.
It also treats crimes against the community with grave insensitivity by cobbling them up together and providing a sentence far less stringent to what is applicable when the same crimes take place against cis gender heteronormative citizens of the country.
On January 8 2019, the Peoples Union for Democratic Rights (PUDR) also released a statement in opposition to the bill. The PUDR, in a conversation with The Citizen, said that in the past, the government had strongly expressed its unwillingness to grant civil liberties to the trans community and this Bill is simply an extension of that sentiment.
A copy of PUDR’s statement is attached below:
PEOPLE’S UNION FOR DEMOCRATIC RIGHTS
Statement opposing the draconian transgender bill
8th January 2019
PUDR stands in support of the trans, queer and LGBTQI+ movement in opposing the Transgender Persons (Protection of Rights) Bill (the Bill) as an assault on the democratic rights of transpersons. The Bill violates the right of transpersons to self-determination and self-identification, recognized by the Supreme Court as a fundamental right under Art. 21 in the 2014 NALSA v. Union of India judgment. Under the guise of combating trafficking in persons, the Bill increases policing in trans communities and of trans bodies, who are already highly vulnerable to police harassment and violence, and disproportionately represented in the prison population of the country.
Instead of upholding the right to self-determine ones gender, the Bill provides for ambiguous definitions, invasive procedures and increased criminality, to add to the hurt and humiliation of trans and intersex persons. Carrying forward the stimatization of non-conforming gender identities as an ‘illness’ or pathology, the Bill requires transpersons to submit to a certification process before a panel of medical officers, psychologists and psychiatrists to determine their gender, and provides for recognition of a person as either man or woman only after mandatory Sex Reassignment Surgery (SRS).
In a measure that purports to protect the rights of transpersons as a vulnerable class of people, the Bill penalises anyone who ‘compels or entices a transgender person to indulge in the act of begging’ without any attempt to address the root causes which drive transpersons to begging to earn their livelihood, namely, discrimination, segregation and exclusion from education and employment, thus resulting in indirect criminalisation of begging. Ironically, the Bill does not criminalize sexual violence including rape, normalized against transpersons instead, these offences are treated as ‘petty offences’, bailable and non-cognizable, with punishment of 2 years, compared to 7 years for the same offences under IPC. Though, the 2013 Criminal Law Amendment provides for gender neutral provision against the sexual harassment (S. 354A IPC) and the same was upheld recently by the Delhi High Court in Anamika v. UOI & Ors (2018) but the rest of the provisions awarding protection (354, 354B, 354C, 354D) remains gender specific and thus, inaccessible to transpersons.
The Bill also empowers the Court to send transpersons into the custody of ‘rehabilitation centres’ on being abandoned by their birth-families, which are primary sites of their torture and harassment. By failing to recognize ‘families of choice’ among hijras as self-determined arrangements of care, the Bill violates their freedom of association in intimate and personal relations, and of those facing common oppression. It upholds brahmanical patriarchal family forms, which inflicts daily punishment and humiliation on transpersons.
It is important to note that Rajya Sabha passed its first ever Private Member’s Bill in the last 48 years, the progressive draft of The Rights of Transgender Persons Bill, 2014, which was tabled by Mr. Tiruchu Silva. The Private Bill had separate provisions for 2% reservations in education and public employment, establishment of National-State Commissions, Legal Aid and Fast Track Courts, after extensive democratic consultations, but the same has been left pending since 2015 in the Lok Sabha. The Standing Committee also recommended reservations and recognition of civil rights like marriage, partnership, divorce and adoption. The Central Government tabled its own Bill in the Lok Sabha in 2016 to thwart the progressive provisions of the Private Bill which was passed in 2018 with amendments completely disregarding recommendations by the Standing Committee.
PUDR vehemently opposes the passage of the Transgenders Bill diluting the rights and protection awarded by the NALSA judgment as it furthers injustice and violence against the trans and gender non- conforming persons. PUDR demands -
1. Withdrawal of Transgender Persons (Protection of Rights) Bill and The Trafficking Bill.
2. Refer both Bills to the Parliamentary Standing Committee.
3. Decriminalize begging and sex work.
4. Uphold the right to self-determination of transpersons recognized by the Supreme Court, guarantee reservations in employment and education, and provide social security.
Deepika Tandon and Shahana Bhattacharya
Banu also added that if the Bill is passed, “the trans community will go back by 15 years”.