Analysis: The Transgender Persons (Protection of Rights) Bill, 2016: Standing Committee Report
Standing Committee on Social Justice and Empowerment (2016-2017) presented its Forty-third report on The Transgender Persons (Protection of Rights) Bill,2016 to the Lok Sabha on 21.07.2017.
Transgender persons, one of the most marginalised communities in our society, were finally accorded basic human rights by the Supreme Court of India after the passing of National Legal Services Authority(NALSA) v. Union of India in 2014. For the first time, the community was brought within the framework of fundamental rights and their basic rights of life, dignity and equality, otherwise ensured to all citizens by the Constitution, was guaranteed to the community. Lawyer’s Collective represented Laxmi Narayan Tripathi in NALSA and brought before the Court international jurisprudence on self-determination of gender identity. It was rightly seen as a landmark judgment, advancing the rights of a community that had existed on the fringes of society for generations. Thereafter, with the passing of the Transgender Persons (Protection of Rights) Bill, 2016, in Lok Sabha, there were legitimate concerns by the community that it was a case of one step forward, two steps back.
The Rights of Transgender Persons Bill, 2014, it was introduced in the Rajya Sabha as a Private Member’s Bill by Dravida Munnetra Kazhagam leader, Tiruchi Siva, in April 2015. However, there was delay in discussing the Bill in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment made available a draft of the Transgender Persons (Protection of Rights) Bill with diluted provisions of the previous bill. It was introduced in the Lok Sabha on 2nd August, 2016, and referred to the Standing Committee on Social Justice and Empowerment on 8th September, 2016, for examination. The Committee held five sittings during the course of examination of the Bill, and relied upon oral and written submissions of a number of NGOs and experts in the field, including Vidhi Centre for Legal Policy, Amnesty International India, Dr. Kaveri Rajaraman, Lawyer’s Collective among others. Lawyer’s Collective has held consultations with the transgender community and represented their issues and concerns before the Standing Committee on a range of issues including self-determination of gender identity, criminalization of begging and demand for reservation among others. The Standing Committee Report was finally presented before Lok Sabha and laid in Rajya Sabha on 21st July, 2017.
The Transgender Persons (Protection of Rights) Bill, 2016, was criticised heavily by the transgender community and civil society for being disconnected with the ground reality of the problems faced by the community. There have also been questions posed of whether there was a need for parliamentary legislation once NALSA was declared. There have been factions within the community that have questioned the need for further regulation, and rather emphasised the need to implement the rights already guaranteed in NALSA.
The definition of ‘transgender person’ as given in the Bill violates their fundamental right of self-determination under Articles 14, 19 and 21 of the Constitution of India. The use of the words “neither wholly female nor wholly male” is regressing back to the idea of having innate biological attributes which are defined by one’s sex. The definition has been borrowed from the provision relating to ‘intersex status’ from Australia’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013, thereby conflating two entirely different identities and concepts in law making the present definition unworkable.
The Standing Committee has affirmatively taken note of international jurisprudence as well as NALSA‘s declaration on the subject of basis of transgender identity: psychological sex, and not biological sex.
Self-identification forms the basis of this judgment, giving the transgender community autonomy over their identity, granting the dignity that has been previously deprived. It is, therefore, hoped that the Standing Committee’s recommendation on this subject will be accepted by Ministry of Social Justice and Empowerment(MoSJE) to redraft the definition.
The Committee also noted a glaring loophole in the proposed statute, in that the anti-discrimination provision under Section 3 does not provide a working definition of ‘discrimination’ per se; but rather illustrates acts that may constitute discrimination. For an act to constitute ‘discrimination’, it is necessary that the law specify the basis of arriving at a finding of ‘discrimination’, i.e., either an act is based in prejudice, stigma, intent of harm or stereotypical assumptions or notwithstanding the fact that the impugned act is based in good faith, it has the effect of distinction, nullifying or impairing equality before law.
The second limb of the definition of ‘discrimination’ is specification of the prohibited grounds of discrimination, in this case, gender identity and/or gender expression. The denial or unfair treatment with regard to access to public utility services, goods, benefits, opportunities, privileges and facilities to a person may not per se constitute ‘discrimination’ if it is rooted in serving an otherwise legitimate purpose. However, denial or unfair treatment solely on the basis of a person’s gender identity and/or gender expression constitutes discrimination as it proceeds from a position of stigma or hostility. For instance, a housing society lets out apartments on rent only to cis-gender males and females. This is prima facie discriminatory vis-à-vis transgender persons.
The Committee’s recommendation of incorporating a definition on ‘discrimination’ as per The Yogyakarta Principles, is welcome as it satisfies the tests of the legal basis of determining ‘discrimination’ in law, as discussed. The Yogyakarta Principles are a set of principles on sexual orientation and gender identity adopted by experts on international human rights law.
The Committee’s recommendation of incorporating ‘establishment’ after ‘person’ under section 3 to make the State amenable to the anti-discrimination provision, is a welcome recommendation.
The Committee’s anxious consideration of a remedy in the form a grievance redressal mechanism with fixed responsibilities and adjudicating power under the proposed statute, provides a complex solution to a simple problem. The existing Courts are competent to exercise jurisdiction for purposes of this law. Section 21 of the proposed statute states that the provisions of the proposed Act shall be in addition to, and not in derogation of, any other law for the time being in force. This must clearly mean that transgender persons can move existing framework of Civil Courts exercising jurisdiction under laws such as The Protection of Women from Domestic Violence Act, 2005.
In order to provide effective grievance redressal for the community, there must be effective implementation and access given to the community within the existing framework. In cases of discrimination, a simple suit for declaration under Section 9 of Code for Civil Procedure can be instituted in a civil court by an aggrieved person. Instead of creating an additional forum specially for the transgender community which would result in added infrastructure and expenditure, the existing system should be effectively utilised. The arbitrary creation of an additional grievance redressal mechanism shows a lack of understanding of the law. Additionally, it would perpetuate the further segregation of the community from society, rather than assist in their integration within the mainstream discourse.
The Committee’s process of deliberation on the legal recognition of gender identity is majorly fraught with inconsistency as is seen with the decision of continuing with the District Screening Committee. According to clause 5 and 6 in the Bill a transgender person is to make an application to the District Magistrate for issuing a certificate of identity, and on receiving such application, the District Magistrate shall refer the same to a District Screening Committee which will decide the person’s gender and issue a certificate of identity to the transgender person. The recommendation to provide for only ‘transgender’ status of the applicant in the certificate of identity, as opposed to right to choose to identify as female, male or transgender as provided in NALSA, flies in the face of the Committee’s own recommendation on tailoring the definition of ‘transgender persons’ based on the MoSJE’s Expert Committee Report, 2014 which may allow for persons to identity as transgender as well as within the binary of female (MtF) or male (FtM).
It is clear that no reasoned justifications are supplied by the MoSJE for its decision as well by the Standing Committee in agreeing with and recommending the abridgment of the fundamental right to self-determination of gender identity against a legitimate State interest (purportedly prevention of misuse of legal recognition for accessing State benefits) in a manner that is least restrictive to the object sought to be achieved.
The Committee’s recommendation to merely provide a “strict code of guidelines to ensure that the screening process neither becomes an arbitrary affair nor a source of harassment to transgender persons” is directly violative of NALSA’s declaration on “any insistence for Sex Reassignment Surgery for declaring one’s gender is immoral and illegal” as the District Screening Committee is disproportionately staffed with medical authorities. This recommendation, if effected in law, will essentially privilege the ‘biological test’ rather than the ‘psychological test’, which is wholly contrary to the jurisprudence as laid down in NALSA judgment on careful consideration of domestic and international law and Constitutional issues of dignity, privacy and autonomy of persons.
While there are diverse views and conflicting opinions on many issues within the transgender community, as there are in any vibrant movement, if there is critical consensus on one issue it is this: demands of recognition that fail to respect human rights of transgender persons are unacceptable, even though they may promote socio-economic advancement in the form of reservations or other affirmative measures.
The Committee’s recommendation, on retaining the criminalization of begging under the Chapter on Offences & Penalties, in addition to existing laws that already criminalize the act of begging such as Bombay Prevention of Beggary Act, 1959, Bengal Vagrancy Act, 1943 among others is baffling and lacks foresight on the life of the law, especially so in the backdrop of the jurisprudential pronouncement on the right to life with human dignity, personal autonomy and self-determination of the Hon’ble Supreme Court in NALSA v. Union of India. While the law on the books may intend to discourage and punish ‘beggary syndicates’ alone, the experience of the Hijra community with the law on the streets under the aforesaid laws has been one of criminalization of identity per se and exacerbating desperate conditions of living.
The existing laws criminalize and punish begging, soliciting alms in public place while singing or dancing, wandering or loitering without purpose; the criminalization of begging under the proposed law only perpetuates the deeply entrenched legal policy vis-à-vis transgender persons and other marginalized and dispossessed communities.
For the Standing Committee to pretend that reinforcing criminalization of beginning in the proposed law will work for the ‘protection’ of human rights of transgender persons as purportedly envisaged by the Parliament, ignores the real and imminent facet of everyday law enforcement and its accompanying prejudices.
In order to protect the targeting of the community, is it desirable that exceptions be carved out for practices traditionally associated with the Hijra community under the anti-begging laws, such as mangti and badhai toli.
The Committee’s recommendation to grant legal recognition of adoption by transgender persons is a welcome move in a long battle for legal recognition of chosen families and alternative families by queer/LGBT communities. The Committee is cognizant of the lived reality of transgender persons who find care and support at a young age in Hijra/Aravani gharanas, as they run away from homes to escape gender-based violence. Although, the Committee’s recommendations require a practical understanding of adoption and the laws governing the process, since the Hijra community does not ‘adopt’ as legally understood.
However, as noted above, acceding to the demand of recognition of chosen families on the one hand while simultaneously chipping away at the social and economic life of Hijra communities by criminalizing a traditional mode of sustenance (begging), defeats the purpose of the proposed legislation, i.e., protection of rights of transgender persons.
It is noteworthy that the Standing Committee has taken a very harsh view of the government’s policy on ‘rehabilitation’, observing that institutionalization of adult persons who are marginalized has not made any headway in the last 70 years as it denudes persons of their autonomy and the right to live with dignity.
However, despite making a categorical statement to the effect that “transgender persons do not need to be rehabilitated by the State, but need protection of their rights guaranteed by the Constitution as well as grievances…”, the Standing Committee goes on to inexplicably recommend “setting up of rehabilitation centres meant only for transgender persons which would cater to their specific needs” under the chapter of Obligation of Establishments.
The Committee has expressly recommended provisions for granting reservation to transgender persons in public education as well as employment, to ensure that proposed law is substantially compliant with the decision of the Hon’ble Supreme Court in NALSA v. Union of India. Affirmative action/reservation is a process of acknowledgement by the State to correct and make reparations for historical deprivation and violence against a class of persons, and the transgender rights movement’s demand for recognition before law has always gone hand in hand with demand for redistributive justice and access to State benefits.
The reworking of the Transgender Persons (Protection of Rights) Bill, 2016, in accordance with NALSA now presents a formidable task to the Ministry of Social Justice and Empowerment; one that may very likely test the Ministry’s commitment to the core values it wears on its masthead.
Tripti Tandon is a Delhi based lawyer and Executive Director with the Lawyers Collective. Suraj Sanap is Legal Officer with Lawyers Collective, HIV/AIDS Unit and Ankita Ramgopal is legal officer with Lawyers Collective.
Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"