On the 28th of December, 2018, thousands of transgender, intersex and gender non-confirming people and their allies came together in New Delhi at Parliament street on Friday morning to protest against the Government of India’s Transgender persons (Protection of Rights) bill, 2018. Waves of protests and press conferences have been taking place at the district and state level over the last week in all these states and today all these groups converged in Delhi.  Members of communities all across the country came to Delhi from Tamil Nadu, Karnataka, W. Bengal, Telangana, Andhra Pradesh, Kerala, Manipur, Haryana, Gujarat, Maharashtra, and Uttar Pradesh. 

Rajeev Gowda, MP,  Congress, Rajya Sabha came to the protest site and pledged his support for referring both the problematic Transgender Persons (Protection of Rights) Bill, 2018 and the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, to a Select Committee.

Tiruchi Siva, MP, DMK, Rajya Sabha addressed the crowd and honoured the self-respect struggle of the transgender community to which he had been a dedicated ally for many years. As he spoke, protestors raised signs stating “Pass the Tiruchi Siva Bill in the Lok Sabha” and “Stop the Government of India Bill in the Rajya Sabha”. Accompanying him were Sonal Mansingh and Ameeya Yajnik, who pledged their support to the transgender community. MPs from the CPI (M) also raised their voice in support of the community struggles. 

Derek O’Brien, MP, TMC, Rajya Sabha addressed the rally and vowed to stand with the community and fight the bills that have criminalized the community. When he said they would end the regime of this anti-people government, the crowd cheered. 

Members of the community also burnt copies of the bill and sloganeered against the BJP government.  Representatives from workers and students organizations also attended and gave their support to the mobilization. 

Grace Banu from Tamil Nadu said “Without reservation, we have no opportunities. No one is ready to offer us the chance to work. If we aren’t given the chance to live, why doesn’t the government just euthanize us or declare us refugees in our own country?”. Subikshamma said that the community will oppose this government to the very end on this bill.

Several transmen activists spoke up about their struggles and unique needs as a largely overlooked group within the trans community. Satya Rai Nagpaul on behalf the Indian Federation of Transmasculine Persons said “It is beyond time that the government had a comprehensive idea of the diversity of genders and that “transgender” includes a whole spectrum of transmasculine persons”. Kiran Raj from Telangana said “No one else can determine my gender. It is not in my body or known to the government”. Kiran from Karnataka said “We have been protesting about this transgender rights bill for a long time. No screening committee can tell us who we are”. Saransh from Delhi asked “If you, a cisgender person, are not asked to strip before anyone to prove your gender, why should I? I am a man, and have identified that way since childhood, and I should not have to prove this to anyone”. Selvam from Tamil Nadu asked, “How much longer must we struggle to just be seen as human like everyone else?”.

Rani, a transwoman leader from Karnataka said “Many of us come from poor backgrounds and our only acceptance is from the transgender community, our only livelihood is from traditional begging. If even that is criminalized, we will starve”. Chandramukhi Muvvala from Hyderabad said, “Implement the NALSA judgment!” Aparna from West Bengal gave a passionate speech in which she asked “How can the government tell me who I am? If I do not accept my mother and parents telling me what my gender should be, who are more important to me than any government, do you think I would abide by this government’s opinion?” 

The protest at parliament street took place in response to the Lok Sabha passing the Transgender Persons (Protection of Rights) Bill, 2018. This Bill contradicts, rather than protects, many of the rights and protections laid out in the country’s Supreme Court’s NALSA verdict of 2014. Along with the Trafficking of Persons  (Prevention, Protection and Rehabilitation) Bill, 2018, this regressive and dangerous legislation will subject the thirunambi, thirunangai, transgender, hijra, kinner, intersex and gender non conforming communities in India to increased discrimination, harassment, and institutional violence.

The Trans Bill criminalises traditional begging without offering horizontal reservations or any opportunities in education and employment; it violates our constitutional rights of freedom of movement and association as well as the NALSA judgment which encodes self-identification; and it encodes discrimination by prescribing lower punishments for sexual violence upon transgender people as compared to cisgender women.

Some of the most harmful aspects of the current version of the Bill:

1. This Bill upholds the establishment of screening committees, comprised of District Magistrate, Psychiatrists, Medical Officers, and one Trans person, which will have the power to determine whether or not an applicant qualifies as transgender. The process of “proving” one’s gender in front of a committee violates multiple fundamental rights, and is utterly humiliating. The Bill also mandates “surgery” as the basis for applicants to qualify as transgender and avail of protections. This requirement violates the principle of self-determination of identity for Trans, Intersex, and GNC people, and disenfranchises many who can not afford surgeries as well as those who do not desire any surgeries.

2. The Bill criminalizes begging, sex work, and other forms of livelihood that many in the trans communities depend on to survive. Contrary to the stated purpose of the Bill – Protection of Trans persons’ Rights – it criminalizes and discriminates against us, specifically targeting entire communities of Transwomen, Hijras, and Transfeminine people who have historically practiced begging and sex work as the primary source of income. The Trans, Intersex and GNC communities thus firmly oppose this Bill along with similarly criminalizing and discriminatory provisions of the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018. Both Bills are currently pending before the Rajya Sabha and must be withdrawn in their current form.

3. The Trans Bill 2018 also denies reservations and affirmative action for trans, intersex and gender nonconforming people in employment, education, and healthcare. Thus between criminalizing begging and sex work, and denying reservations, it puts our very lives at stake.

4. The Bill requires Transgender people, to reside with their birth family – even though birth families are often the first site of violence against these individuals. If trans people are aided by other Trans community members in escaping such conditions at home, the community members can be imprisoned for up to 4 years

5. The Bill postulates that sexual violence against trans people will face punishment up to 2 years, in comparison with the 7yrs of imprisonment for sexual violence against non-trans women. In this way, the Bill directly discriminates against the Trans, Intersex and GNC communities and strips us of dignity and equality

6. The Bill has labelled all intersex people as transgender. This is a gross violation of the right of self-determination of intersex people, many of whom do not identify as transgender.

Read more about the problems with the bill.

Harmful aspects of the Trafficking Bill:

1. Bill is unclear with respect to existing laws which already penalize trafficking and exploitation of trafficked victims for sexual exploitation, bonded labour, contract labour, and inter-state migrant work.

2. Bill goes against fundamental principles of criminal justice and the Indian Constitution by creating new offenses unrelated to trafficking, use of unclear sentencing policy, vesting excessive powers in the police, etc.

3. Bill ignores and furthers the failures of existing ‘protection’ homes, fails to hold magistrates accountable, and explicitly bars victims of trafficking from accessing the legal remedies that every citizen of India is entitled to in the name of ‘protection’. 

4. Bill lacks consultation with trade unions, labour groups, sex workers, and transgender communities, specifically with respect to impact on informal labour, including begging, sex work, and domestic work, thereby categorically targeting marginalised communities.

5. Bill does not hold accountable state actors and employers, but instead declares one’s choice and form of labour and sustenance as trafficking and prescribes excessive punishment for the marginalised communities engaging in these form of labour.   

6. Bill criminalizes the administration of hormones and other medicines, failing to distinguish between coercion and assistance in accessing gender affirming hormone therapy. 

7. Bill does not distinguish between voluntary sex work and trafficking.

8. Bill is against international legal norms which focus on human rights and a victim-centred approach

 

RECOMMENDATIONS 

BACKGROUND OF 2018 BILL

The landmark Supreme Court  NALSA (2014) verdict accorded transgender individuals the right to self-identify as the third gender or within the binary, as male or female; and ruled that insistence on sex reassignment surgery, hormone therapy, or other procedures to legally declare gender was illegal and immoral. The verdict directed the Centre and State Governments to provide the community with various social welfare schemes and to treat the community as socially and economically backward classes. It asked for the transgender community to be extended reservation in educational institutions and for public appointments, proper medical care and separate public toilets.  It also asked for the recommendations of the Expert Committee Report on Transgender persons (released February 2014) to be reviewed in light of the verdict and be implemented within six months, i.e. by October 2014.

In 2015, the “Rights of Transgender Persons Bill 2014” was passed by the Rajya Sabha on 24th April 2015 unanimously, with cross-party support. A private member’s bill introduced by the MP from Tamilnadu, Tiruchi Siva, the Bill had been drawn up in consultation with the community and has since then been pending before the Lok Sabha.  Tiruchi Siva’s bill was largely reflective of the NALSA verdict and had several progressive positions such as reservation rights, employment and education opportunities, right to self-determination, special courts, a Transgender Rights Commission and more.

Later in 2015, the Ministry of Social Justice and Empowerment drafted a Rights of Transgender Persons Bill (2015), and sought public input, with comments to be submitted by  14th January 2016. The MSJE Bill had borrowed several concepts such as  ‘inclusive education’, ‘reasonable accommodation’, and ‘barriers’ etc. from the Rights of Persons with Disabilities Bill 2013; harboured problematic notions of rehabilitation, lacked clarity on sexual offences committed against transgender persons, etc. The draft bill received substantial input from transgender and intersex led groups, as well as from LGBTIQ and ally groups. 

The Transgender Persons (Protection of Rights) Bill 2016 was then introduced in the Lok Sabha on August 2, 2016.  However, it did not incorporate any of the community feedback given to previous versions of the Bill. In October 2016, the Lok Sabha  Standing Committee sought, through a newspaper ad, feedback on the bill, with the last date that was eventually extended to November 5, 2016. Subsequently, community feedback was given to the Parliamentary Standing Committee, which submitted its report in July 2017. Except for the revised definition of ‘transgender’, progressive amendments made by the Standing Committee have been largely ignored in the amendments resulting in the 2018 bill.

WHO ARE WE?

Transgender persons have a strong physical and/or cognitive discomfort with the gender which is socially, legally and medically unambiguously assigned to our bodies at birth. Persons who don’t identify as transgender are cisgender. 

Intersex: Persons with intersex variations have bodies that do not conform to medical, legal and social categories of male and female, in various ways [anatomical, chromosomal, hormonal etc]. Some intersex persons are uncomfortable with the gender they were assigned, in which case they may be transgender and intersex; but if not, they can be cisgender and intersex. 

Hijra: The Hijra community is a sociocultural group whereby some members of the transgender and intersex communities formally enter a traditional system of living together and mutual support. They may take on different identities and names in various local languages: kinnar in Hindi, tirunangai in Tamil, aravani in Tamil, mangalamukhi in Kannada. Some kinnars may identify as Triteeya prakriti or third gender while others do not.

Transgender woman: Transgender women are transgender persons who identify as women, regardless of how they look, or dress. Some transgender women are also hijra identified while others are not.

Transgender man: Transgender men are transgender persons who identify as men, regardless of how they look, or dress. In Tamil Nadu some transmen may also identify as thirunambi.

Shivashaktis and Jogtas/Jogappas: These are culturally specific groups who are socially permitted a feminine gender expression  in the context of specific religious roles.

Genderqueer/Gender non-binary/Gender fluid/Agender/Intergender: Persons who do not identify within the gender binary may have a variety of gender identities including but not limited to these categories above. 

REFERENCES

FULL TEXT OF 2018 BILL, 27 AMENDMENTS, UPDATES AND MEDIA COVERAGE:

FULL TEXT OF 2016 BILL

OVERVIEW of 2016 INCLUDING CRITIQUES GIVEN TO STANDING COMMITTEE

TIRUCHI SIVA BILL 2014 – passed RS in 2015

MSJE 2015 BILL (AFTER SIVA BEFORE 2016 BILL)

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