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

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On December 17, 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 Act are highlighted, we move on to the negatives, the reasons for the nationwide protests against the Bill by the community.

The benefits provided for the community come only when a person is ‘certified’ to be a transgender, from a District Screening Committee. This committee is to consist of five people- a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
The District Magistrate will be then issuing the identity certificate, on the recommendation of the screening committee. This process is long and tedious, takes months to obtain, and all of this only to be recognised for who you are

The bill also has a lot of contradictions in itself- particularly in two areas:

It states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity. But it does not provide any enforcement to this right as a committee has to issue a certificate to the person only if they are convinced of their identity as transgender. The bill calls for a transgender to be present on the committee for the production of a certificate for another transgender. But this is a highly confusing situation wherein if every transgender is supposed to be screened, who would be on the screening board?

The transgender bill has very rightly been protested against, as it actually criminalizes the community- it does not treat them as equals in the society. This bill can create loopholes in the country’s legislative system and can prove to do more harm than good, making rights and laws that are good but only in theory.

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