Principle 1 of the Yogyakarta Principles on Gender Identity and Sexual Orientation, 2006, which the United Nations has endorsed, states that “all human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.” The transgender community constitutes approximately five per cent of the country’s population. They are bullied, intimidated and ostracised on a daily basis. The Supreme Court of India, in the NALSA case, upheld the transgender persons’ right to self-identification and directed the government to take steps for their welfare and treat them as a third gender for the purposes of safeguarding their fundamental rights.
As an immediate response to the NALSA judgment, Tiruchi Siva introduced the Rights of Transgender Persons Bill, 2014 as a private member’s bill and got it passed in the Rajya Sabha. Thereafter, the government built on it and came up with the Right of Transgender Persons Bill, 2015. The latest Transgender Persons (Protection of Rights) Bill, 2016 does seek to provide for protection of rights of transgender persons and their welfare. But just like the government’s Juvenile Justice Bill, Child Labour Bill and Surrogacy Bill, this too achieves exactly the opposite result of perpetuating discrimination of the group whose rights it intends to protect.
Who is a transgender? The new bill reinforces the stigma attached to transgender individuals by defining the term ‘transgender’ in extremely narrow biological terms. It violates individual dignity by attributing certain characteristics like ‘unwholesome’ or ‘incomplete’ to transgender identity. It restricts the fluid concept of gender to just male, female and transgender and compels individuals to choose from the three rigid categories thereby failing to respect the right of self-identification. More importantly, the bill empowers the district screening committee comprising medical experts and doctors to decide whether a person may be categorised as a transgender. Thus, the definition of the word transgender is technically flawed, extremely narrow in scope and degrading of transgender identity.
Consequently, 90% of the transgender population would be excluded as they fail to meet the fixed biological criteria which also goes against the NALSA decision in which Supreme Court had observed that “gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person…..Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.” The NALSA judgment also expressly prohibited subjecting a person to medical examination like intrusive body searches and stripping for the purposes of checking if a person is a transgender.
Unlike earlier bills, the new bill does not provide transgender persons with Sexual Reassignment Surgery free of cost which also goes against the court verdict which had laid emphasis on medical services. It is a common phenomenon for transgender persons to experience physical and verbal abuse and humiliation at their parental home. The bill turns a blind eye to the reality and does not permit separation of transgender persons from their parents and families. Separation is possible only under exceptional circumstances when a transgender person is able to get a judicial order under which such a person may be placed in a rehabilitation centre. This makes matters worse on three counts: first, the provision fails to respect individual autonomy of transgender persons and treats them as incapable of making right choices; second, in effect it makes the traditional haveli system prevalent in cities like Hyderabad illegal. The haveli system is a customary arrangement for transgender persons wherein the members eat, live and pray together in peace and harmony just like a traditional family. Over a period of 300 years, the haveli lifestyle has become a deeply entrenched part of transgender existence in cities like Hyderabad. The elders of the transgender family become the adoptive parents of the young and the other members their family and friends ; third, state-run rehabilitation centres for transgender persons, as has been reported, are characterised with deplorable living conditions, instances of sexual violence and unnatural deaths.
One such centre in Bengaluru infamously called the ‘beggars colony’ serves the purpose of illegal detention of transwomen who beg on the streets. Maximum violence and abuse that transgender persons face is at the hands of law enforcement agencies like the police. The policemen randomly pick up transgender persons from the streets and incarcerate them in these centres. It is seen that they are charged with crimes like public nuisance, extortion, kidnapping, Section 377 offence and illegally detained in these centres. Thereafter, the policemen carry out rape and custodial violence on them. As such, these centres serve no better than brothels.
Transgenders do not get any kind of employment in public as well as private sector due to their distinctive identity. Begging is the only means of survival for them. The new bill in effect penalises transgender persons who ‘indulge in the act of begging’ to earn a livelihood. Further, states such as Andhra, Karnataka, Maharashtra have anti-begging laws that prosecute indigent people for engaging in acts of begging.
In the Ram Lakhan case, Justice Ahmed of the Delhi High Court rightly observed that “(Beggars) are persons who are driven to beg ... as they are starving or their families are in hunger. For any civilised society to have persons belonging to this category is a disgrace and a failure of the State. To subject them to further ignominy and deprivation by ordering their detention in a Certified Institution is nothing short of de-humanising them.” The government must withdraw its regressive bill. Let transgenders be recognised, with full capacity to take decisions in respect of their bodies. Let us say bye bye binary.
Faizan Mustafa is Vice-chancellor of NALSAR University of Law, Hyderabad
Email: vc@nalsar.ac.in