This article was originally published on 19 December 2018, when the Lok Sabha passed the Transgender Persons Bill; it has been updated to reflect that the Rajya Sabha, on 26 November 2019, passed a revised version of the bill. The Bill will now be placed before the President for his approval — a formality — after which, it will become law.
The Rajya Sabha passed a bill today that not only goes against the Supreme Court’s landmark 2014 NALSA ruling in many ways but actively disempowers the trans community. The idea that the Transgender Persons (Protection of Rights) Bill, 2019, will ensure concrete steps from central and state governments to protect trans people’s rights to housing, education, health care, and employment, is a laughable one. Instead, the approved version of the bill ignores many of the recommendations sent in by community organizations all over the country. Many have pointed out that the very people who will be directly affected by the bill have not been consulted in the process of its creation.
After the 2014 NALSA ruling from the Supreme Court, which affirmed people’s right to self-identify their gender, among other fundamental rights, the Court asked the Government of India to implement the stipulations within six months. NALSA mandated that welfare and employment opportunities should be created through reservations, to help the socio-economically backward trans community, 92% of whom still aren’t able to participate in the formal economy, thanks to centuries of marginalization. But the Transgender Persons (Protection of Rights) Bill, 2019, talks of non-discrimination within educational institutions, without offering even a fee waiver or stipend, let alone reservations for transgender people.
The most fiercely objected stipulation of the bill is the government’s requirement that a transgender person must apply to their District Magistrate for a certificate of identity that establishes their gender as transgender and, if desired, for a certificate of identity that re-establishes their gender as a man/woman should they undergo gender-affirming surgery. This sets up the District Magistrate to determine whether a transgender person … is a transgender person or not.
Clearly this goes against the NALSA judgment, which supports the right to self-identify your gender, and denies transgender folks very basic human rights. Would any cis person agree to stand before a magistrate, prove that they really do exemplify their gender identity, and hope the magistrate agrees? (The bill does not provide the magistrate with any guidelines as to how to certify gender identity.) To put any individual in charge of how transgender people are allowed to identify is just incredibly unjust and takes India so many steps backward in terms of granting every citizen their fundamental rights.
Ironically, the requirement of a gender certificate also allows for potential discrimination, segregation, humiliation, and violence — physical and/or mental — against transgender people, as Samajwadi Party’s Member of Parliament Jaya Bachchan pointed out during the floor debate. This might even come from the medical community, which has no systematic training on how to treat queer and transgender people and is notorious for discriminating against the community, keeping trans people from accessing basic health care and gender-affirming surgeries. Even qualified doctors are often unaware or uncertain about how to handle issues pertaining to LGBTQ+ folks. While the bill promises “to facilitate access to transgender persons in hospitals and other healthcare institutions and centers” and to review medical curricula to address the community’s needs, there is no mention of sensitivity training to better connect the trans community with quality care.
While the bill was passed amid chaos in the lower house, the upper house passed it without amendment. Meanwhile, the transgender community — which was barely informed of the details of the final draft introduced Monday — are taking to social media and the streets, to protest the bill that certainly threatens the very rights it purports to protect.
