Gender
identities are fluid postulations which cannot be limited by definitional
boundaries or legal formalities which defeat the notions of bodily autonomy
integral to one’s identity. Unfortunately, the recently passed Transgender
Persons (Protection of Rights) Bill, 2016 (“the bill”) appears to be
precisely aiming at this. Although the bill has been introduced with a lofty
ideal of addressing the social exclusion and marginalisation suffered by
transgender individuals, it charts out a path towards the stated objective with
little thought and reasoning. The text of the bill reeks with unfamiliarity and
ignorance with the notion of gender and reinforces several of the biases and
misconceptions with which transgender community is understood in India. Worse
still, it has incorporated risible procedures, such as ‘certification’ of gender,
and entities like screening committees that creates more problems than what the
bill hopes to resolve.

Understanding
gender, and concomitantly, gender identities has been a matter of more than
mere academic interest. Should law interfere in this domain is a question that
has been debated for long. Even the generic meanings of what is it to be a male
or female, should these be confined to physiological characteristics or
manifestation of certain behaviours or preferences (famously illustrated by
Judith Butler’s idea of performativity)
has been nebulous at best. Intuitively, it maybe understood that forceful
presence of law in these realms would only be counter productive. This bill
instantiates one of the distressful consequences of legally defining
transgender.

Many affronts
of the bill

The definition
provided in the bill not only goes against the grain of logic but also defeats
the fine reading of third gender attempted by the 2014 judgement of the Supreme
Court in National
Legal Services Authority v Union of India (“NALSA”). In its landmark
decision, the court had held that the transgender individuals have a right to
self-identified gender and had placed the responsibility on the governments to
grant legal recognition for the same. It had left the meaning of gender open
ended, emphasising on the agency of the individual and stating that transgender
would include range of identities and experiences, “including but not limited to pre-operative,
post-operative and non-operative transsexual people”. However, the
present bill defines transgender in binaries of male and female by stating that
transgender is someone:

(i) who is
neither wholly male or wholly female,

(ii) a
combination of male or female or

(iii) neither
male nor female.

While the folly
and shallowness of the legal drafting is evident, it betrays a graver problem
with social understanding of gender identity. The problems lay not just with
the inappropriateness of the definition of transgender but also with what is it
to be ‘wholly male’ or ‘wholly female’. Nowhere in the whole array of existing
laws has either male or female been defined. Arguably, while it is necessary to
define transgender to extend the umbrella of protection, in the absence of a
coherent reasoning, it seems unfathomable why the two stated genders need to
form points of reference.

Bill’s troubling
non-engagement with Article 15

A greater
difficulty in the bill arises on the point of its non-engagement with Article
15 of the Constitution, which provided the core of NALSA judgment. In the
decision, the two judge bench had affirmed that the term ‘sex’ included gender
identity and as a consequence, discrimination on the basis of one’s gender
identity was also prohibited. Unfortunately, the bill which purports to be
engendering an anti-discrimination law does not provide any reference to
principles of Art.15. Thus, apart from the obvious absurdity of blanket
prohibition against any form of discrimination, constitutionally justifiable or
otherwise, it creates a category of ‘others’ who do not belong to a social
mainstream. This fails the original intention of the legislation to facilitate
social incorporation through the legal intervention. The bill does not account
for the fact that normalizing and streamlining our understanding of transgender
identities is a slow process that should have been effectuated structurally,
more so, through consolidating the constitutional interpretation made in NALSA
judgment and re-emphasising principle of fundamental right to dignity.

Absurdity of
Certification and Creation of Committees

If one were to
believe this is the end of the problems, one would indeed be disappointed. The
bill strangely proposes a preposterous process of certification under S.5.
Here, a transgender person, who seemingly has a right to self perceived gender
identification, is now required to make an application to the district
magistrate for issuing certificate of identity. The district magistrate shall
in turn refer such an application to the district screening committee
constituted by the appropriate government for granting the recognition. A categorical
denial of autonomy and agency of individual’s right to self-identification is
disturbingly manifest in the chain of process that precedes certification. It
is impossible to find an analogous provision in any law that requires a man or
a woman to prove their gender identity before entitling them to the protection
of law. 

Further, the
bill goes on to place certain obligations on the appropriate government to
undertake welfare measures and on individuals and establishments to practice
non-discrimination in matters of employment, social milieu et al. However,
these provisions read more like policy guidelines, lacking the force of law.
Specific understanding affirmative actions that can be adopted or incorporation
of Yogyakarta principles
that outline India’s obligation towards human rights of multiple sexual
orientations and gender identities is absent. Primarily, the bill is not
cognisant of everyday practices of discrimination and violence experienced by
transgender individuals within and outside of domestic spheres. It does not
deal with institutionalised violence, like the abuses experienced at the hands
of police for instance. The beneficial provisions and mechanisms provided
under the bill are also superficial and inadequate. It provides for a National
Council for Transgender Persons, requires the appropriate government to
undertake welfare measures and programmes and also to provide them with
necessary healthcare facilities. While these are welcome measures, the extent
of obligation placed on the governments is uncertain. 

Missing coherence
in the bill

There are
certain glaring incoherences in the design of the bill. Although the intention
behind some of the provisions is welcome, the wording of the sections require
serious reconsideration. For instance, use of the term rehabilitation,
especially in S.13(3), which states that a transgender person who has been
given up by the family due to the inability to take care of such person shall
be rehabilitated. An implicit idea of gender identity being equated with
disability is telling. This is worrying as the precise objective of the bill
should have been to fight such attitudes in society. It is imperative that even
a provision extending protection need to be precisely worded instead of
revealing the underlying ignorance or condescension of the drafters.

Equally
outrageous is the provision which penalises anyone compelling or enticing a
transgender individual to engage in begging or other similar forms of forced
labour. It has been pointed by activists
and academics that this provision is drafted in complete ignorance of the
social reality that begging has been one of the very few available livelihood
options to transgender community. Prevailing intolerance and biases in the
society has led to severe social as well as economic marginalisation. In such
situations, the aforementioned provision does more harm than it seeks to cure.

Conclusion

The inanity of
the 2016 bill reminds us of the private member bill passed by Rajya Sabha in
2014, ‘The
Rights of Transgender Persons Bill, 2014‘, which was not only exceptionally
progressive but also comprehensive in terms of rights and benefits granted
under it. The provisions were substantial and not sketchy, where questions of
creation of economic opportunities, skill development, responsibilities of the
government, mechanism for addressing violence and harassment against
transgender community were elaborately addressed.

Questions of
gender identity are deeply personal and political at the same time. It cannot
be moulded or designed according to compulsions of law. A whole range of sexual
orientations and gender identities exist on a spectrum which cannot be captured
within legal frameworks. A critical move towards social transformation would
require us to understand that there is no need for the law to capture it at
all. Admittedly, it is necessary to have a law that deals with everyday violence
and discrimination suffered by transgender individuals. But our response needs
to be more mature and weighted than frivolous, as has been done currently.
Across jurisdictions, there has been a tide of social transformation and
progressive measures to accommodate the interests of gender identities, most
recently in few of the Latin
American nations as well. It would be regrettable if India persists on its
retrogressive measures at this hour.