‘Transgender Bill Legitimises Violence Against the Community’

On July 22, a trans woman was beaten up by a mob in India, leading to the death of the woman in West Bengal’s Jalpaiguri district. A slew of such instances have been reported from across the country in the recent times. Trans persons have been attacked, harassed and mocked regularly, sometimes on the rumours of child-lifting, otherwise called kidnapping. This has resulted in 69 mob attacks and 33 deaths in 18 months, according to data. An IndiaSpend analysis of news reports from across India showed that there has been a 4.5 times rise in attacks and two-fold rise in deaths across 2017, with figures soaring in 2018.

The Union Cabinet in a move targeted towards the supposed “empowerment” of the community and to crackdown on the instances of violence, passed the Transgender (Protection of Rights) Bill on July 10. Activists have been waging a long struggle highlighting how the bill puts the trans persons on a lower plane in comparison with the rest of the society, legitimising the violence against the community.

Speaking with NewsClick, Philip C. Philip, a queer activist working with Human Rights Law Network stated that the passing of the bill shows apathy and neglect. The secrecy surrounding the bill has also raised serious questions, as it was not made available to the affected communities and the public at large, till the morning it was tabled in the Lok Sabha. The community is terming the bill is part of a series of betrayal of assurances and a convolution of a law that would do nothing for the trans community and would rather snatch away the bare minimum that existed.

Problematic Clauses still intact just reworded:

Previously, on December 17, 2018, the Lok Sabha had passed the Government of India's Transgender Persons (Protection of Rights) Bill, 2018. Amid the heated debate regarding the Rafale deal in the Lower House, the decision that would affect lives of lakhs of transgender people was taken within a short span of an hour. The passed Bill introduced by the BJP-led central government had watered down the already existing Rights of Transgender Persons Bill, 2014, which was passed in the Rajya Sabha. The Bill was vehemently opposed by the community, as it not only disempowered the community, but also criminalises them.

Also read: Transgender Bill: Denying Constitutional Rights to the Community?

The former version of the Bill also went on to say that those who have not gone through Sex Reassignment Surgery (SRS) can only identify as transgender, and not as male or female, and the identification as transgender depends on the scrutiny and certification by a District Screening Committee; those seeking to identify as male or female need to have had an SRS. The new draft, which is cleared by the Cabinet dismantles the District Screening committee to state the recognition of a transgender person’s identity. Instead, it is now to be decided by the District Magistrate, who will then issue the certificate based on a certain set of documents. The elemental question that arises then is, what are the documents that would allow transgender persons to be recognised with regard to their identity as a transgender person. This clause in itself muddled the understanding of gender identity. The clause still enforces the need for SRS, as the validity of the SRS would be decided by the District Magistrate.

The previous draft of the bill had also denied sex work from being considered work. In the previous Bill, Section 19 in Chapter VIII on “Offences and Penalties” had earlier read, “Whoever – (a) 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 for a term which shall not be less than six months but which may extend to two years with fine.” Rights activists pointed out that the government had not created any forms of employment but criminalised begging. Though the current bill cleared by the cabinet has removed provisions criminalising begging and sex-work, it has introduced a new section that criminalises ‘compelling or enticing’ a transgender person to indulge in forced labour. The need for the section should be under scrutiny, for when there is a pre-existing Bonded Labour System (Abolition) Act which criminalises those employing bonded labour, and is applied across persons with no discrimination on gender, the need for this provision is redundant. Therefore, making this is nothing but primarily a twisting of words to keep previous provisions intact.

As far as the section criminalising violence against transgender persons is concerned, it has been reproduced without any changes from previous drafts. In fact any kind of violence, as much as that which would endanger a trans person's life is punished by a term of a maximum of 2 years. Phillip added, “The maximum punishment one can get is of two years, punitive measures are pathetic. According to the IPC, if a person is raped or killed, the punishment will be seven years. However, this watering down of punishments does more harm to the trans community, which is more susceptible to forms of violence. What is needed in the act is a punitive measure that is over and above the IPC, not one that waters it down.” The present bill stipulates a complaint officer designated to deal with complaints under this law. The process of having a complaint officer is completely unclear, it could be through nomination, election or any other process, but as of now, the process of having the complaint officer is non existent. The procedure finalised will establish the independence and the efficacy of the complaint officer and in its absence, the clause is a cause for concern.

Also read: Muddled Morality: An Attempt at Criminalising Transgender Community

In their latest critique of the bill, Rachana Mudraboyina, one of the founding members of Telangana Hijra Intersex Samiti and also the founder of Trans Vision, and Philip C Philip stated that the Chapter in the bill that prohibits discrimination does cover discrimination against transgender persons on a range of fronts. They write, “It is not even a toothless tiger, it is just a number of teeth scattered about with no power, reason or authority to take action on their own. The National Council for Transgender Persons lacks any kind of independence to carry out functions. The National Council which is composed of at least 30 persons, has a mere representation of 5 persons from the transgender community. Further the persons would be nominated by the Central Government, compromising significantly the autonomy of the persons on board. The chapter prohibiting discrimination is plagued with three major concerns being, lack of an enforcing authority, lack of remedial measures, be it in terms of compensation or any other Lack of punitive measures to be taken against the violator.”

The cabinet clearance of the bill has renewed momentum against the Modi government as activists as well as members of the community have declared that they will continue to oppose this. As Philip and Mudraboyina write, “Our throats cracked ages ago, hands bled and bodies tired. None of it has put a halt to our demand for what is rightfully ours. Through the fight we spent moments mourning our losses, these weren’t losses in courts or in legislation, these were losses of our kith and kin.”