Why prove existence?

All eyes have been on Kashmir since Tuesday when the Rajya Sabha approved the resolution to revoke the 70-year-old Article 370 that gives special status to Jammu and Kashmir. Amidst the din, not many noticed the Lok Sabha passing the Transgender Persons (Protection of Rights) Bill, 2019, almost secretly. It’s a move that the LGBTQIA+ community terms ‘betrayal’, on the day they call ‘Gender Justice Murder Day’. ‘Almost secretly’ because the Bill wasn’t made available to the community members despite repeated demands till the day it was tabled. ‘Betrayal’ because of its regressive provisions for gender certification, apathy towards right to residence, failure in pushing for inclusivity in education, employment or politics, and not addressing a range of complex issues.

Though the Bill defines a transgender person as one whose gender doesn’t match the gender assigned at birth, there’s no provision for self-perceived gender identification, and a certificate to ‘prove gender’ has to be issued by the district magistrate (DM). The bill calls for prohibition of discrimination in employment, education, healthcare, accessibility to public spaces and opportunities, and pitches for penalty for offences against transgender persons. However, pointing out the regressive portions in the bill which render them as second-class citizens, the shattered trans community sees the move more as a publicity stunt to showcase inclusive nationalism than empowering nearly 4.5 lakh transgender Indians.

Manu Karthika, a trans man and manager of Queerythm Thanal Transmen care home in Thiruvananthapuram, finds the bill lacking visibility for trans couples. “Trans couples are people who enter into a relationship after knowing their problems – a relationship that’s bound to last a lifetime. The bill is not inclusive for them; it doesn’t cover legal validity regarding property rights and adoption rights. I also find the identity certificate process problematic. It demands a person to undergo surgery to confirm their gender. Even though a district magistrate, psychologist, doctor and a trans person are suggested to be present in the panel, the representation is just on paper. And what if the people on board are unaware of the umbrella term? There have been instances of denial of card as the board members feel that the applicants lack feminine or male traits they have been expecting. Imagine the agony of a person who has to prove their gender before such a board! Are men or women asked to do that? Self-declaration is all it takes to prove one’s identity,” he opines.

Lashing out against the absurd provisions of the bill, writer-activist Varsha Bhargavi asks, “Do I, as a woman, have to get a certificate from the district magistrate to prove my gender? If not, why should transgender people go through it? No heterosexual man or woman is forced to get certified by the DM. I believe that transgender people must be represented in Parliament so they can speak for themselves. Since they are not there, the existing human rights are applicable to all.”

Manu also feels that the Bill doesn’t cover trans men. Among the over 200 trans men he associates with, only nearly 80 have come out. “The visibility of trans men is very poor compared to trans women. They suffer in silence in their homes, married life and social system. Only support and acceptance can make them empowered,” he says.

Terming homophobia ‘an internalised prejudice in our country’, Varsha says, “It’s time to introspect as individuals, raise our collective consciousness towards transgender people, and restore equal rights and empower them economically, socially and politically, so they can be safe and free from violence. Then, they themselves can assert their demands directly without dominant heterosexuals taking decisions on their behalf.”

Human rights activist Neysara Rai, founder of transgenderIndia.com, finds the Bill considering trans people as sub-humans. “The Bill states that any crime against a trans person, even endangering their life, is punishable by a maximum of two years in prison.  Through a Bill that seems to be unjust, the government is proudly writing on the Constitution that transgender people are sub-humans and trans lives do not matter.”

Fuming at the ‘planned presentation’ of the Bill, Shakti Waghela, a trans person from Mumbai, equates the Bill to ‘murder of transgender people’. “It was all part of a plan; they released the Bill at the right time when it got over-shadowed by the scrapping of Article 370. The NALSA judgment had sought strict punishment for severe crimes like rape, murder and sexual violence with the same penalty and imprisonment for crimes against women. But the new Bill suggests only minor punishment like jail ranging from six months to two years for sexual assault and harassment. While gender identification has to be an individual decision, how can a group of people interview you to decide whether you are ‘fit to be’ a transgender person? How will a person in their pre-transition phase take rejection? This Bill is equal to killing us.”

Observing that the previous Bill was more progressive, Dr. A.K. Jayasree, gender activist, suggests that trans community should be allowed to deal with their matters. “With provisions like a district magistrate’s certificate, the power lands in wrong hands. Regarding gender identity of transgender persons, respect their own voices. It’s better if their own organisations, following a self-regulatory mechanism, can ascertain gender identity. They have better knowledge and their own representatives. When right-based approach is practised globally, we too have to follow suit,” she says.

Trans community, Jayasree says, should have a say in decision-making process as the first step to inclusivity. “Though the new Bill decriminalises begging, there should be provisions for job security, the lack of which leads the community members to begging and prostitution. Unlike other minority communities like tribal people or other marginalised population, transgender persons lack acceptance from family and are denied their rights – to livelihood, to own property and even to have kids. There’s no law that denies them all these, but there need to be supportive laws. Provisions should be added to prevent atrocities against them as in SC/SCT Act to save them from further harassment. Reservation should be introduced in jobs, education, etc.”

Trans rights activist Amrita Sarkar suggests that the Bill be reworked. “The biological family has been given the prime authority to make a decision on rehabilitation. But we know that not all trans people are getting support from family. Instead of NCT, there should be state-level councils and representation of the community on state and district levels.”

Amrita also points to another undemocratic part of the Bill. “There is a part of the Bill that states that no one can protest or raise voice against the people who passed the Bill. It’s not about protest, but pointing out the flaws because if the government wants to help us, we should work hand in hand.”

Manu too pitches for inclusion of various provisions. “Most of the trans persons who come out are educated ones; there need to be job reservation for minority communities like ours. Hospitals should be equipped with quality facilities for sex reassignment surgeries. Though the NALSA judgment to uphold gender identities gave hope, the Bill nullifies it all and makes matters difficult for the community members. We are mulling over measures to keep the discourse alive so that our issues will be reminded to be addressed and never pinned down to complete apathy.”

Problems with the Bill

• Gender identity certificate from district magistrate: Based on male-female binary as it mandates sex reassignment surgery.
• Lack of measures for structural change: No creation of inclusive spaces and opportunities.
• Denying Right to Residence: Trans persons get to choose only either biological family or rehabilitation centre
• No legal provision on marriage, adoption, etc
• No provision for reservation
• Lack of stringent provisions for prevention of atrocities
• Improper representation of trans persons in political and decision-making bodies, including the 30-member National Council for Transgender Persons (NCT), which has only five from the community.