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Violation of Human Rights and Gross Injustice: Why RS Politicians Are Opposing the Transgender Bill

By: Jashodhara Mukherjee


Last Updated: November 22, 2019, 13:06 IST

Image for representation

Image for representation

As Patra said, if the bill is passed, the transgender community would surely have a law in place, but no protection.

On August 5, 2019, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019, with almost no debate - probably, in great haste, since Article 370 which took away the statehood of Jammu and Kashmir was abrogated on the very same day.

On Wednesday, several members of the Rajya Sabha sought to review the bill and demanded that it be referred to a select committee. Both Houses of Parliament must pass the Bill in order for it to become a law.

The Bill was reportedly meant to prohibit discrimination on grounds of gender and pave the way for inclusivity as far as transgender people were concerned, thus making life more secure for them. It was also supposed to provide a mechanism for social, educational and economic empowerment of transgenders. However, the Bill resulted in furore with several activists and politicians condemning it and calling it regressive in nature.

Politicians like Congress' Rajeev Gowda, Samajwadi Party's Jaya Bachchan, Biju Janata Dal's Sasmit Patra and Trinamool Congress' Derek O'Brien have raised concerns about the Bill and some have even gone on record to claim that they would, under no circumstances, let the Upper House of Parliament pass the Bill.

While O'Brien assured transgender communities that the Bill would not get passed in Rajya Sabha and that his party would never let that happen, Gowda, Patra and Bachchan, in individual speeches, broke down exactly what was wrong with the Bill.

The Bill is in direct contradiction to the NALSA Judgement

Gowda says that the Bill, if passed, would be in direct conflict with the NALSA Judgement. The National Legal Services Authority (NALSA) v. Union of India is a landmark verdict by the Supreme Court which, in verbiage, declared transgender persons to be a "third gender", a status that had been denied to them previously. It held that transgenders are economically and socially backward classes and would, therefore, be granted reservations, as far as employment and education are concerned. Yet, no such provision has been made in the bill.

More importantly, the NALSA Judgement allows transgenders the right to self-identification, a right that has been snatched away by the new Bill. As per provisions in the new bill, an individual would have to apply to a district magistrate for certification; that would be followed by an intense examination process following which a certificate would be awarded. However, this contradicts the right of transgenders to determine their own gender, since it would be entirely up to the DM to award the certificate or withhold the same.

This lacuna in the bill has been addressed by Gowda, Bachchan and also Sasmit Patra, who all feel that this is a gross injustice. While Gowda says that the medical procedure has not been laid out and is vague, Bachchan says that "certification itself is discrimination. It is humiliation of a human being. This is not what we should do to a human being."

Sasmit Patra paints a vivid picture of how the loopholes in this section of the bill put transgender people in a tight spot. He speaks of a scenario where a transgender individual has to go up to a DM and convince the latter of his sexual identity; if, by chance, the magistrate feels that the application is not convincing enough, there is no recourse for the individual concerned.

The Bill describes "Gender" as a "psychiatric" issue

Gowda points out that Section 12.3 of the

Bill describes "gender" as a "psychiatric issue" which essentially narrows down concept of gender as a whole. He asserts that the difference between "gender" as a social construct and "sex", which is purely biological, needs to be understood and given serious thought.

The bill also claims that transgender persons should be put in rehabilitation or shelter homes, if their parents are not able to provide supportive homes. Gowda says that the harsh reality is that most transgenders do not find welcoming homes and putting them in rehab for the same is a gross violation of their right to live freely. Gender, or the right to choose one's gender, should be not be seen as something requiring rehab.

The issue of non-separation of gender non-conforming children from their families 

Gowda says that while the Bill originally claimed that transgender children shall not be separated from their families, Clause 12 limits it to just children, and not adults. According to Gowda, this creates grounds for misinterpretation and also allows families of transgender persons to evict them once they can no longer be called children.

Convoluted notions of discrimination and vague provisions for employment opportunities for transgender people

In his speech, Gowda also highlights that the bill has no provision for discrimination and does not even define what discrimination is or what its impacts can be. He proposes an amendment to this section and goes on to define discrimination on grounds of sexuality of the rest of the House.

He also says that the bill is supposed to strengthen the transgender persons economically. However, if it has no provisions for establishments having discrimination policies, how can transgender persons hope to work in companies without the impending fear of hate or being discriminated against?

Patra too raises a valid point here. He says that Bill urges transgender people to seek education opportunities at government-aided and government-funded organisations only. However, that is unfair and limits their horizons.

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    The Bill aims to elevate the status of transgender people in our country, curb discrimination and empower them as socially and economically backward classes. Yet, as these politicians pointed out, the bill lists not a single provision for the same. The provisions that are there lack clarity and ambiguity and as Patra said, if the bill is passed, the transgender community would surely have a law in place, but no protection.