Proving their gender has become a big task for the transgender community, as the amended Transgender Person (Protection of Rights) Bill, 2018 has mentioned a clause of ‘verification of gender identity’.
Even after two years, the Transgender bill 2018 is unable to resolve the plight of the trans community. The new bill was passed with 27 amendments in Lok Sabha on Tuesday. The first transgender bill was drafted in 2016 which comprised flaws and unclarity. Activists and members of the transgender community have stated that the bill still remains unclear even after revision. The bill is regressive and fraught with flaws, stated Shashi Tharoor, who himself had suggested 21 amendments in the bill. Despite rework, the bill has not mentioned many changes which were suggested by activist and community people, like reservation and the necessity of section in the law to protect the community.
The bill which aims to stop discrimination against the transgender community, stands out to be discriminatory in itself.
It defies Supreme Court’s decision of NALSA (National Legal Services Authority vs Union of India) judgement under Article 21 of the Constitution of India, which states one’s gender is part of the fundamental right to dignity, freedom and personal autonomy. The amended bill includes verification of gender identity under which a District Screening Committee will issue a certificate of identity that recognises the individual as a transgender.
“Although, the apex court had upheld NALSA, the bill flouts the order. There shouldn’t be a medical intervention for verification. How will the screening identify whether a person has been operated or not, or if someone has been living in a transformed body for 20 years out of whatever age he/she has lived. It is about what the individual identifies himself/herself, the expressions of an individual is their identity,” said Laxmi Tripathy, who had spearheaded the bill as a representative of the community.
“Moreover, the inclusion of ‘transqueer’, ‘intersex’ in the bill is unclear,” added Tripathy.
The district screening committee will comprise, chief medical officer, district social welfare officer, psychologist or psychiatrist, representative of the transgender community and government officer. The challenge will be to provide appropriate infrastructure. The cases need to be handled sensitively. The psychiatrist and psychologist should be friendly, sensitive and educated about the subject. Otherwise, there are chances of rejecting genuine cases, said Bindhumadhav Khire, Founder of Sampathik Ttrust. He also stated that the bill is unsatisfactory as many amendments recommended by the community has not been made. Like, reservation in education, employment. Also penalising for begging and no right of self-determination of gender is a setback.
Meanwhile, with few such questions and objections, city-based transgender activists and community members came to the street to protest against the bill on Wednesday. Their ordeals dont seem to rest. Instead of making their life easier, the bill has brought several questions and difficulties in front of them.
“It is only recently that the transgender community has started taking education, while those who have received some support from the family are educated. But the majority of the community members are deprived of education and normal lifestyle. I was very young when my family abandoned me because of my gender-orientation. I was denied of financial support from family and relatives. With no education and acceptance in the society, the only way to earn a livelihood was what my guru taught. Begging is the way we earn for ourselves, which the new bill has criminalised. Who will give us a job without education or skills? Will the society accept us doing a respectful job like others? We need means to be employed. The reservation clause included in the bill doesnt even hold strong specifications,” said Sana Shaikh who was part of the protest.
The bill specifies the following offences, compelling transgender persons to beg or do forced or bonded labour (excluding compulsory government service for public purposes), denial of use of a public place, denial of residence in a household, village or other places of residence and physical, sexual, verbal, emotional or economic abuse. These offences will attract imprisonment between six months and two years and a fine.
“The bill has mentioned penalising sexual abuse of a transgender but under which section of IPC are we supposed to register a complaint is unclear. Section 375 and 376 of IPC doesn’t consist a clause for sexual abuse of transgender and the Supreme Court has partially scraped section 377. No separate section or addition under any criminal law has been formulated yet,” said transgender activist Sonali Dalvi.
The lengthy bill has no answers to these numerous questions of the community people. We have no proof to our gender identity except for the birth certification which holds us to be a female or ‘male’ and our expressions and body behaviour of being a female or male. But for them, the gender orientation has been a puzzle, which they have been able to solve now and a few are still struggling to accept their identity. NALSA judgement had brought relief to them, the Trans Bill 2018 has taken them back to their turmoil. The gender identity has to go beyond biology. It is more about an individuals expression and personal experience which doesnt confine to sex assigned at birth.
Furthermore, social acceptance is still lacking. Even if these community members stop begging and opt for education or respectful job, will the society accept them healthily, remains a question. May be, the government is trying to uplift the community but it needs to first work on the grassroots, provide facilities, emphasise on education and employment, gender sensitivity classes should comprise LGBTQ community as well. Still, a long way to go, but the dialogue needs to happen.