Guest Post by Sakshi Aravind
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.
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.