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India’s New Transgender Bill (2018): A Subtle Discrimination

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On 17th December 2018, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2016 with 27 amendments. The bill was welcomed with protests throughout the country, and people asking the government to withdraw it as soon as it came out to the public.

What is the new Transgender Bill all about? 

The bill defines transgender persons as:-

a) (i) neither wholly female nor male;
(ii) a combination of female and male; or
(iii) neither female nor male.

b) whose sense of gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, and gender-queers.

The bill has been in demand since 1871, when the Criminal Tribes Act, which included a separate chapter on eunuchs was passed. Eunuchs were described as impotent men, who were supposed to be registered and prohibited from wearing women’s clothes or dancing in the streets. There have been multiple protests and staged rallies in the country since then, and have been supported by personalities who wanted them to be treated as equals in the society, not criminalising them, and bringing them on equal status as the rest of the country. A hundred and forty-seven years later, the definition has changed a lot for the better, getting much more progressive and not criminalising them.

How does it change the path for transgenders?

The Bill has turned around some age-old discrepancies against the transgender community. The positive rights contained in the bill are mentioned in Sections 9, 15, and 16 of the Act.

Section 9 states that…

(a) The appropriate Government shall take steps to secure full and effective
participation of transgender persons and their inclusion in society.
(b) The appropriate Government shall take such measures as may be necessary to
protect the rights and interests of the transgender person, and facilitate their access to
welfare schemes framed by that Government.
(c) The appropriate Government shall formulate welfare schemes and programmes
which are transgender-sensitive, non-stigmatising and non-discriminatory.
(d) The appropriate Government shall take steps for the rescue, protection, and
rehabilitation of transgender persons to address the needs of such person.
(e) The appropriate Government shall take appropriate measures to promote and protect
the right of transgender persons to participate in cultural and recreational activities.

Section 15 states that…

The appropriate Government shall formulate welfare schemes and programmes to facilitate and support livelihood for transgenders including their vocational training and self-employment.

Section 16 states that…

The appropriate Government shall take the following measures in relation to the transgender persons, namely:
(a) a separate human immunodeficiency virus Sero-surveillance Centres;

(b) to provide for medical care facility including sex reassignment surgery and
hormonal therapy;
(c) pre and post sex reassignment surgery and hormonal therapy counseling;
(d) bring out a Health Manual related to sex reassignment surgery in accordance
with the World Profession Association for Transgender Health guidelines;
(e) review of the medical curriculum and research for doctors to address their specific
health issues;
(f) to facilitate access to the transgender persons in the hospitals and other
healthcare institutions and centers;
(g) provision for coverage of medical expenses by a comprehensive insurance
scheme for transgender persons.

It prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It also directs the central and state governments to provide proper welfare schemes in the above-mentioned areas.

What are the bureaucratic roadblocks in its implementation

Now that the positive parts of the Bill are highlighted, we move on to the negatives – the reasons for the nationwide protests against the Bill by the community. According to the Bill, the benefits provided for the community will only be applicable to persons who are “certified” transgenders. And to acquire such a certificate, the person will be subjected to a screening process by a District Screening Committee consisting of five people – a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person. They need to provide proof of surgeries and photographs of their private organs to the committee. After that, the District Magistrate will issue the identity certificate, based on the recommendation of the committee.

Not only is process long and tedious taking months to provide a certificate obtain, but it also riddled with technical dilemmas. It says that the committee must consist of one transgender person, but who is to give that person an identity certificate? Will the transgender person on the committee also be subject to screening by another committee to first acquire a certificate? The bill sticks itself in a technical loop in the very first step of implementation.

Not just this, but the bill also states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity. However, it gives a right to the committee to judge the person and decides whether or not he/she is a transgender. So at the end of the day, it is the committee who needs to be convinced of a person’s gender identity rather than the person themselves.

The bill, at its core, confuses the term gender with sexual orientation. It has very rightly been protested against, as it does not lay the ground for equal treatment of the community in society. No other gender is mandated to provide an identity certificate to acquire an education or job, but a transgender is.

What does the transgender community think about the Bill?

The community is trying to stop the Bill as it violates their rights rather than protecting them. It is said to be regressive and discriminatory towards them. It has denied then job opportunities with the certificate and criminalises ‘begging’ and ‘sex work’ which are the major sources of income for them.

The bill also doesn’t take into consideration the ‘adoptive families’ of transgenders and the process they must now follow to get their children a certificate. It also doesn’t take into consideration the traditional businesses of the community and talks about mainstream professions that they should get into. It also claims that the community needs protection and rehabilitation, whereas the trans community itself says that what they really need is empowerment and equality.

Since being in the Lok Sabha, thousands of people have taken to streets in Delhi, Tamil Nadu, Karnataka, Manipur using the now viral slogan – #Stoptransbill2018. There were many protests in colleges, where queer collectives and gender cells gathered to voice their opinions against the Bill by holding demonstrations, lectures, and discussions. Massive protests took place in Mumbai’s KC College, Tata Institute of Social Sciences (TISS) and Pune University.

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