Transgender Persons Bill 2018: Half-hearted legislation does more harm than good, creates rights that can't be enforced

It has been four years since the passing of the landmark judgement of the Supreme Court, wherein the court granted recognition and certain rights and protection to the transgender community in India. This judgement was followed by two private member bills and then the present government bill for the codification of the rights of transgender persons. The present bill which was first introduced on August 2016 was sent to the Standing Committee on Social Justice and Empowerment (the “Committee”) after a month, which then resulted in the committee giving its final report in July 2017. This week the bill was finally passed by the Lok Sabha with corrections based on the report of the Committee.

This Bill was a watershed moment in the legislative history of the country, being the first bill cleared from the Lok Sabha that seeks to provide protection to the transgender community in the country. This bill was long overdue considering that it was 1871 when the Criminal Tribes Act was passed in the country that consisted of a separate chapter on “Eunuchs.” In this act, Eunuchs were defined as “impotent men,” who were supposed to be compulsorily registered and prohibited from wearing women’s clothes or dancing in the streets, ostensibly to criminalise the traditional communities of transwomen present in the country at the time.

 Transgender Persons Bill 2018: Half-hearted legislation does more harm than good, creates rights that cant be enforced

Representational image. Reuters/Anindito Mukherjee

The bill has taken a progressive stand as to the definition of the word transgender and defined it in an expansive fashion as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.” However, the bill is also courting controversy due to the fact that it requires trans persons wishing to avail themselves of the benefits of the act to seek certification of being transgender from a District Screening Committee, and rightly so as it hits at the very core of the demand of self-determination, which the community has been very firm and vocal about, and which was also a crucial aspect in the private member bills.

The Bill seeks to set up a tedious procedure for obtaining an identity certificate, which will 1) require an application being moved in the office of the District Magistrate, 2) the application being sent to the screening committee, 3) the screening committee reviewing the application (and in all likelihood the applicant) and giving its recommendation back to the District Magistrate, 4) the District Magistrate then issuing the identity certificate, which will entitle one to protection under the law.

The bureaucratic situation in the country is not a hidden fact, and the ordeal that such a procedure will put an applicant through, which requires not only the convening of meetings but might also require the committee to reach a joint decision. This provision can be contrasted with a simpler procedure for obtaining a disability certificate which requires an application to the certifying authority, consisting a board of government doctors, and the doctor who specialises in the disability of the applicant will then examine the applicant on the basis of set parameters and then grant or deny a certificate. What is even more curious is the fact that the screening committee is required to have a transgender representative, while the act clearly stipulates that one has to be screened by the committee before they can be certified as transgender, so the possibility of such committees ever being set up is also suspect and would require certain persons to be deemed to be transgender by a process not provided in the bill.

A bare perusal of the Bill does not make out any need for such certification, as the bill largely provides for negative rights, ie, rights that require a lack of action; for instance, the right to not be discriminated against at work, right to not be externed from property, which are such rudimentary rights that there can be no reason to put in restrictions of screening before providing the same. Further the positive rights provided in the Bill are contained in Sections 9, 15, and 16 of the Act, which also provide for setting up of Vocational Training Institutes and providing relevant medical facilities, which are again not something of such value that will (or can) be misused by persons “pretending” to be transgender, leaving the reason for requiring certification in this bill unclear. Hence, the requirement of obtaining a certificate for such rights is patently unreasonable and against the spirit of the act itself. It is also important to point out that the present bill does not provide or mention anything about reservation being provided to the transgender community.

Further, the bill proposes very transphobic provisions such as the offence of “enticing” transpersons to beg, which has the potential to criminalise the tradition of many trans communities which include the practice of seeking alms in return for blessings, and the same should further be looked in light of the fact that begging per se has been decriminalised in the country*. Also, the bill in numerous places provides for dangerously vague provisions that can be misused by persons in authority such as section 9(4), which merely states that “The appropriate Government shall take steps for the rescue, protection, and rehabilitation of transgender persons to address the needs of such person,” but does not at all state how the government agencies will decide who needs rescue, protection, and rehabilitation, and the same is open to misuse for arresting and detaining transpersons, as was commonly being done to homeless persons under the Beggary laws.

While it is a positive sign that the government is taking some interest in the rights of transgender persons, such half-hearted attempts at creating legislation will create loopholes that can potentially do more damage than good, and create rights that can never be enforced.

*Read order of Hon’ble Delhi High Court dated 07.08.2018 in W.P.(C) 10498/2009 & CM APPL. 1837/2010

Kartikeya Bahadur is a practicing human-rights lawyer with specialisation in Access to Justice from Tata Institute of Social Sciences, Mumbai. He is an extramural researcher with Monk Prayogshala.

Updated Date: Dec 26, 2018 09:43:40 IST