In a landmark verdict, popularly known as the NALSA judgment, the Supreme Court in 2014 recognised transgenders as the ‘third gender’ and directed the government to frame a legislation for protecting their social and economic rights. In 2015, as a rare case, a private member’s Bill on the rights of transgenders, drafted by DMK MP Tiruchi Siva, was passed in the Rajya Sabha. However, the government subsequently introduced its own Bill on transgender rights.

After a two-year delay, the Lok Sabha finally passed this Bill on December 17. It accepted 27 amendments to its original draft, while rejecting all amendments moved by the Opposition.

The Transgender Persons (Protection of Rights) Bill, 2018, seeks to protect transgenders from social stigma and ostracism and promote their fundamental rights as equal citizens of the country. It also protects transgenders from discrimination and safeguards their rights by making it illegal to deny them access to public spaces, cause any physical or mental harm to them, or force them to leave their place of residence or village. To compel or to entice a transgender person to beg has also been criminalised.

Such acts of discrimination against trans people have been made punishable with up to two years of imprisonment and a fine. The Bill also calls upon government institutions to provide inclusive education and set up an anti-discrimination cell to protect transgender students from bias. It asks the government to facilitate their employment through vocational training and promote non-discriminatory workplaces and provisions for their access to welfare programmes and rehabilitation schemes. The Bill proposes the setting up of a National Council for transgender persons to monitor and evaluate policies relevant to them.

However, the Bill has been strongly criticised by the Opposition, the transgender community and various civil society groups. Congress MP Shashi Tharoor termed the Bill “regressive” and “fraught with flaws” and asked for “a robust and comprehensive legislation” after consulting the community. Trans Rights Now Collective founder Grace Banu declared it a “black day” for trans people, and the community has asked for the Bill to be withdrawn. They say the Bill slips on some crucial demands of the community and in fact takes away more rights than it gives. Some of the major points of discontent include…

Definition and identification of transgenders

In the NALSA judgment, the Supreme Court had upheld the right of self-identification of gender, where transgenders could identify themselves as one and obtain documents. However, the new Bill defines a transgender as “a person whose gender does not match with the gender assigned to that person at birth and includes trans man or trans woman, person with intersex variations, gender queer and person having such socio-cultural identities as kinnar, hijra, aravani and jogta”. Two major criticisms have been offered for this definition. First is the inclusion of all people with intersex variation within its ambit, many of whom may not identify themselves as a trans person. Second, some critics point out that the words ‘trans men’ and ‘trans women’ have not been adequately defined.

Further, for a person to be identified as belonging to the third gender, this Bill mandates a certificate from the district magistrate, on the recommendation of a district screening committee. The committee is to include a medical officer, a district welfare officer, a psychologist or psychiatrist, a government officer and a trans person. In opposition to this, trans activists contend that people have a right to affirm their own gender, without being forced to satisfy a committee. They argue that a screening committee subjects trans people to physical and psychological examination, which is insensitive as well as discriminatory and is a step backward from the NALSA judgment.

Silence on reservation

The Supreme Court judgment had sought reservation for trans people by recognising them as a socially and economically backward class. Reservation in education and employment was one of the community’s key demands. However, this Bill does not mention any reservation or affirmative action. In place of reservation, the Bill has a clause on rehabilitation of trans people, which is being criticised as problematic. Telangana Hijra Intersex Transgender Samiti’s Karthik Bittu called the focus on rehabilitation as “disturbing” and argued that trans people had a right to live with their adopted families or friends where they feel welcomed, rather than focus on biological family. This clause, he said, may in fact destroy the culture of Hijra and Aravani communities where elders adopt young trans persons and provide them with care and love.

Criminalises begging

Besides failing to provide reservation, the Bill criminalises begging. Anyone who “compels or entices a transgender person to indulge in the act of begging” can be punished by a jail term of six months to two years and a fine. In the absence of educational and employment opportunities, most trans people are forced to engage in begging or sex work. So, to criminalise begging, without providing alternative avenues of living, has been perceived by trans activists as callous and damaging. This may in fact subject trans persons to more police harassment than protect them, they reason.

Little protection against rape and sexual assault

A serious omission of the Bill is that it does not guarantee much-needed and long-overdue equal protection of law to transgenders, even in crimes such as rape and sexual assault. The Bill says that whoever “harms or injures or endangers the life, safety, health or well-being - whether mental or physical - of a transgender person or tends to do acts, including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine”. Hence, the Bill falls short of recommending the extension of IPC provisions on sexual assault and rape to transgenders. Many of the IPC provisions on sexual crimes are applicable only if the victim is a woman.

According to a study, four out of 10 trans people suffer violence before the age of 18. Experiences of trans people reveal that state agencies, particularly policemen, not only adopt a callous attitude to sexual violence against transgenders, but often indulge in it themselves. In August 2017, four men accused of raping a 19-year-old trans woman were given bail by a Pune court on the grounds that Sections 375 and 376 of the IPC on rape were only applicable to men, women and animals, and did not mention transgenders. Earlier this year, the minimum punishment for rape of a woman was increased from 7 to 10 years of rigorous imprisonment through an ordinance.

In the ultimate analysis, despite being specifically meant to end discrimination against transgenders, the Bill is neither inclusive, nor sufficient. It has not taken into consideration many longstanding demands of the trans community, particularly on the right to self-identification and reservation. The Bill is silent on its relationship with other criminal laws, particularly ones that are explicitly based on binaries of gender. Serious crimes against transgenders have been made punishable only with a maximum of two years of punishment, as if they were comparable to petty crimes.

Thus, the Transgender Persons (Protection of Rights) Bill, 2018, fails to end discrimination against transgenders and falls short of truly providing them a life of dignity and equality. It is expected that the Bill will battle rough weather in the Rajya Sabha, where Opposition parties are likely to demand it to be sent to a select committee. Even for the areas where the Bill satisfactorily addresses the community’s dominant concerns, it will meet a real challenge in implementation as the society, which has historically excluded transgenders, may not embrace them anytime soon.

Arpan Tulsyan is a Senior Research Scholar at the Department of Social Work, Delhi University. The views expressed here are personal.