By Sharanya Gopinathan
What does Dr Piyush Saxena, a self-described past-life regression therapist, film producer, actor and magician, have to do with trans people? Well, he’s the founder of an organisation called, unbelievably, “Salvation of Oppressed Eunuchs”. This seems to be the sole reason why he became the government’s primary source of information for the Transgender Persons [Protection of Rights] Bill 2016.
This controversial Bill is set to be tabled in the Winter Session of Parliament, and is meant to put into action all the mostly-wonderful things the Supreme Court ordered in the NALSA judgment of 2015.
The Bill has been championed by the Union Minister for Social Justice Ramesh Bais, a BJP MP who headed the committee that provided Parliamentary report on an earlier version of the Bill. Bais freely admits he doesn’t know much about trans people himself, and that his main source of information was Dr Saxena. If the knowledge that a professional magician is the brains behind a Bill protecting trans people doesn’t worry you already, get this: in an interview to Hindustan Times, Saxena once said that some trans women are sexually “very hot”, and also never get erections.
Given the individuals behind the Bill then, it’s no surprise that it’s hugely problematic. This timeline by Sampoorna, a trans and intersex advocacy group, shows that the government has no excuse for the many issues with the Bill. It had numerous opportunities to revise it to include the suggestions that rights’ groups submitted at different stages of the Bill being drafted, like in December 2015, when the government put out an early draft. Sampoorna has even launched an online signature campaign to stop the Bill from being passed.
So what “protections” does the Transgender Persons [Protection of Rights] Bill 2016 afford trans people in its current form, and why are LGBTQI groups opposing it so vociferously now? Here’s a quick rundown of the facts.
Who gets to be trans?
“Let’s start at the very beginning. A very good place to start,” sang Julie Andrews who is currently advocating for trans students in the US. The Bill spectacularly begins with a wildly problematic definition of the word “transgender”. It declares that a transgender person is “neither wholly female nor wholly male, or a combination of female or male or neither female nor male, and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans men and trans women, persons with intersex variations and gender-queers.”
While the definition of “transgender” is of course, very complex, and can change in different cultural contexts, it’s generally accepted that a transgender person is simply one whose gender identity is inconsistent with the one assigned to them. It certainly has nothing to do with being neither “wholly female nor wholly male” or an amalgamation of the two.
This “definition” also flies in the face of the Supreme Court’s own ruling that people have the right to gender self-determination. Not to mention that transgender and intersex are not interchangeable terms at all and it’s problematic for this Bill to say they are.
Even more worryingly, the current Bill specifies that a transperson needs to receive a certificate to show that they are trans to avail any of their rights under this Bill. A person who wants such a certificate must file an application with the District Magistrate, who will refer them to a “screening committee” consisting of a Chief Medical Officer and a psychiatrist, among others, who will apparently take a group decision on the person’s gender.
This once again flies in the face of the idea of gender self-determination, a right the Supreme Court has recently reaffirmed we possess in the Right to Privacy judgment, and in NALSA. Just imagine the spectacle of a trans person having to convince a doctor, psychiatrist and assorted others that they are trans. Or imagine having to prove your own gender to a doctor and psychiatrist to receive a certificate saying you are the gender you claim to be. Imagine the insult, the humiliation, the sheer unfairness of it all.
Where did all the medical services go?
While it seems to have big plans for identifying and certifying trans people, the Bill is remarkably unambitious when it comes to health care, one of the biggest areas of concern for trans people.
The Bill goes back on a provision from its own 2015 version, and no longer contains a provision for free gender-reassignment surgeries and procedures. Instead it now has a provision for “providing for medical health facilities” such as gender-reassignment surgeries and hormonal therapy, except it doesn’t seem to be free. It also provides for an insurance scheme for transgender persons, but only those certified by a District Screening Commission.
The Bill also makes the highly ambitious, complex plan of bringing out a “health manual” on gender reassignment surgery, aimed at medical professionals.
But trans and intersex groups, as Sampoorna points out in their comprehensive list of criticisms of the Bill, have been asking for the Medical Council of India to make clear guidelines about trans health care, monitoring mechanisms to ensure accessibility to healthcare, the creation of separate wards for transgender persons in hospitals, the right to avail insurance without having to prove their gender to psychologists, and the provision of amenities to provide healthcare and education to trans people in juvenile justice homes, prisons and short-stay homes. None of these provisions have made it into the Bill. But hey, at least there will be a manual.
Why criminalise begging?
The Bill’s provision on the criminalisation of begging is the perfect example of how little this Bill speaks to the actual, specific realities of trans people’s lives. The Bill says, “whoever compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour […] shall be punishable with imprisonment.” Hijras and begging have a complex relationship. Academicians have listed begging (mangti) as one of the three traditional types of work that hijras in India engage in for their livelihood (the other two being badhai, or giving blessings, and sex work), which means that hijras engage in both a cultural and economic practice of begging. This Bill ignores all these subtle connotations.
Organisations such as Sampoorna have pointed out that the provision will only lead to the “further criminalisation of vulnerable trans communities struggling to make a livelihood”. It could also lead to situations where gurus (the heads of hijra family structures) could be imprisoned for “forcing” their chelas to beg. The Bill, therefore, is likely to punish individuals who engage in begging without being cognisant of the actual economic circumstances, alternative family structures and cultural traditions that lead some trans people in India to begging in the first place.
‘No one rapes trans people’
Shockingly, the Bill takes no measures to curb the specific violence that the trans community faces. The current laws on sexual assault in the Indian Penal Code do not apply to trans people anyway (due to the archaic language of the law like the “modesty of a woman” or “unnatural sex with any man, woman or animal”). The new Bill does nothing to bridge this legal gap.
The only oblique reference to sexual violence here says that the sexual abuse of a trans person would be “punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine”.
What logical reason is there for the crime of raping a trans person to merit a lesser punishment than the crime of raping a non-trans (cis) person, which has a minimum sentence of seven years? By mandating a lesser sentence here, the Bill seems to imply that violence against a trans person is a less heinous crime than violence against a cis people. This conveys the clear message that, in the eyes of the law, trans people are lesser humans than others.
Forgetting something?
The Bill contains a definition of family that fails to include families of choice and adoptive families, which are of particular relevance to trans people. It also makes no mention of affirmative action, a move that the Supreme Court itself called for in NALSA, or for a specific avenue for the documentation of rights abuses.
So as it stands, the Transgender Persons [Protection of Rights] Bill 2016 is clearly woefully inadequate to meet the needs of the Indian trans community. If passed, it would not only cement problematic definitions of gender into law, but also institute provisions that actively harm the community and potentially lead to more interference and discrimination than they already face.
It would also make it seem as though the job is done because if a seemingly-comprehensive Bill actualising the NALSA judgment is passed, it seems unlikely that lawmakers will rush to the issue again in the near future. This would mean that the Bill, if passed, will likely be the last major legislation we will see in this field for a while. So, it’s even more urgent that it’s done right.