Eighteen Reasons Why: The Transgender Bill Should NOT Be Passed

By Brandt D’Mello, with inputs from Shreya Ila Anasuya

A few ideas in this article overlap with a Print article by the same author. This article is composed from the author’s unused research notes.

The Transgender Persons (Protection of Rights) Bill, 2018, tabled originally in 2016, is a piece of legislation consistently resisted by the very community it claims to protect and empower. Several articles have already been written by allies and members of the transgender community, talking about the most problematic clauses of the Bill and it’s being in violation of the NALSA vs. Union of India judgement, which accords transgender persons the right to self-identity.

Here I list all the reasons why the Bill poses a threat to the freedom and safety of trans persons. In addition, I talk about some crucial provisions it needs to carry to truly be a Bill for the community.

Reason 1 — Flawed definition

The definition of “transgender” in the Bill lacks legal clarity, which places the onus on individuals to prove that the proposed law applies to them, or it omits persons altogether. A legal distinction between transgender, gender non-conforming and intersex persons is missing, but this is necessary for it to cater to their specific needs. Intersex- and transgender-specific provisions are required but missing. For example, provisions for an embargo on any sex “assignment” surgeries on intersex minors and the stipulation that hormone blockers be prescribed to transgender or gender-nonconforming children — should they wish it — would be conflicting clauses if a proper distinction is not made.

Reason 2 — Unlawful screening committee

A District Screening Committee is empowered to issue Transgender Identity Certificates. This is highly offensive and constitutes a gross human rights violation. Gender identity is inherent and simply cannot be certified by an external other! Further, it forces a person to out themselves as transgender via their identity documents even if they “pass” as their correct gender. And not all transgender persons wish to claim the legal/gender identity of “transgender” anyway. This is a forced identifier, equivalent to Copperfield’s “Take Care of Him. He Bites.” sign.

Reason 3 — Unnecessarily complicated, unethical process

The process for change in documents starts with applying to the screening committee for a transgender identity certificate. This certificate allows a person only to change documents to “transgender” and access “surgery.” A subsequent medical certificate is required to change documents from “transgender” to “man” or “woman” and change ones name — only a change in the first name allowed. This is an unnecessarily convoluted and traumatizing process for a person already disadvantaged and finding it hard to navigate the system. It forces a person into surgery that they often cannot afford or may not want (not all trans persons want to undergo surgery or other gender-affirming procedures) in order for their documents to reflect their identity. The Bill also robs a transgender person of their right to change their entire name. There is no law preventing a person from doing so.

Reason 4 — No recognition of true family

The Bill safeguards the right of a transgender child to stay with their natal family and in the natal home but does not provide for escape from an abusive family that does not affirm the child’s gender identity. In effect, it forces a gender-nonconforming child to stay within a family that may likely be a site of violence and/or enforcement of assigned gender. It stipulates that in case parents or immediate family are unable to “take care” (what that constitutes is not clearly defined) of a trans person (and the age of the trans person is not specified), they must be sent to a rehabilitation home. This essentialises birth/marital family and denies legitimacy to one’s chosen family or sociocultural community. It also denies individual autonomy and agency to an adult trans person. The only alternative given is for the state to “rehabilitate” the child. This reeks of the ghettoisation that Australian mixed-race children were subjected to in the government’s child removal policies — for “sanitization” of mainstream society? It provides no framework for the child to be entrusted to adult/s with whom a nurturing relationship already exists and who can provide a supportive, affirmative environment. It is a different matter that the conditions in existing homes are appalling, and one is almost certainly consigning the individual to a life of abuse and misery. The language of these clauses also criminalises any person who assists or shelters a trans person running away from abusive family.

Reason 5 — Community requests not heeded

Clauses requested by the community to address the special concerns of gender-nonconforming minors (including the language of “gender-nonconforming” as gender is often a meandering journey in one’s youth) are not present in the Bill. Many other protections and provisions requested by the community that map to our lived realities are not present in the Bill either.

Issue 6 — Insufficient penal protections

Punishment for any violence or endangerment against trans persons (including physical and/or sexual violence) in the Bill is less than that for violence against cis women. This is derogatory, an insufficient penal deterrent, and itself constitutes discrimination. Forcing a person to conform in any way to a gender or name they do not identify with is a heinous offence but is not addressed by the Bill.

Reason 7 — No opportunities or affirmative action

The Bill provides no opportunities in education, employment, or healthcare and no affirmative action on the basis of intersections of gender and caste oppressions. In addition to these, it must also provide for relaxation in age limits for trans persons, who lose years to establishing identity, but no such recommendations are made despite a request from the community.

Reason 8 — Dangerous “rescue” approach

The Bill calls broadly for “rescue, protection and rehabilitation” of trans persons, giving the state control over the freedom and movement of trans persons.

Reason 9 — Unclear and undemocratic council body

The Bill establishes a “National Council for Transgender” with (among others) five transgender community members “nominated by the Central Government” and five “experts” from “non-governmental organisations or associations, working for the welfare of transgender persons.” The very name of this body is offensive. It should be renamed at the very least to “National Council for Transgender, Intersex, and Gender-nonconforming Persons.” The arbitrary selection of transgender representatives without democratic process in the community creates a power hierarchy and scope for abuse and affects community dynamics. Further, NGO representatives are falsely regarded as experts and no definite criteria are listed for expertise. Placing NGO representatives on the council without approval from the larger transgender community is dangerous and problematic. This council is given advisory, monitoring, evaluation, and review authority and an unspecified mandate to “redress grievances.” Instead, it needs to have powers and redressal mechanisms clearly specified.

Reason 10 — No instruction for competitive sports

The Bill calls for “appropriate measures to promote and protect the right of transgender persons to participate in cultural and recreational activities” but makes no mention of equal treatment in professional/competitive sport and events.

Reason 11 — Unclear redressal mechanisms

The Bill calls for individual establishments to “designate a person to be a complaint officer,” but a state redressal mechanism is not clearly outlined other than a throwaway reference in the clause engendering the National Council. A one-person redressal system is insufficient and is quite likely to be biased. Redressal systems within establishments should instead be built on the lines of sexual harassment committees with an external officer and independent representation from the community.

Reason 12 — Calls for serological “surveillance” centres

The Bill calls for HIV serological surveillance centres “to conduct sero-surveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf.” This can be interpreted to enforce mandatory testing of trans persons and poses a risk of severe privacy and confidentiality violations. It also pathologises and stereoptypes an already oppressed and othered community and attaches to it HIV stigma (no offense to the HIV/AIDS+ community).

Reason 13 — Insufficient efforts towards recognising medical needs

The Bill calls for “a Health Manual related to sex reassignment surgery in accordance with the World Profession Association for Transgender Health guidelines” and “review of medical curriculum and research for doctors to address their specific health issues.” What the medical community and state actors fail to understand is that the medical needs of transgender, gender-nonconforming, and intersex persons are different from those of other “patient” communities in that they are individual-driven and cannot be spelled out by an external medical authority. Though the Bill consults international trans health guidelines, it makes no mention of consultation with the community itself to ascertain its needs first hand. Thus there is a high probability of the resulting policy being in serious incongruence with the needs and desires of trans/gender-nonconforming/intersex persons. No mention is made of sensitisation of medical personnel; the medical professionals we have encountered are excruciatingly unaware of how to respect trans persons, let alone how to help them. This knowledge needs to come from the community and its collection cannot be driven by medical researchers or state actors without the risk for serious psychological harm. Furthermore, mental health resources have received no attention.

Reason 14 — Coverage of gender-affirming procedures

The Bill calls for “provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, harmonal [sic] therapy, laser therapy or any other health issues of transgender persons.” This language needs to be changed to “provision for coverage of medical expenses by a comprehensive insurance scheme for *all gender-affirming procedures* or any other health issues of transgender persons” to be fully inclusive of trans persons’ needs. The Bill carries no mention of mandatory coverage by private insurers. It is important that this be added and that it engender a strict “no exemption as pre-existing condition” clause. The Bill must call for all gender-affirming procedures to be added to the list of specified diseases covered under Rule 11DD Section 80DDB of the Income-tax Act, 1961 for tax deduction for those who pay out of pocket for their procedures.

Reason 15 — Criminalises begging, a traditional form of income

The Bill criminalises anyone who “compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government.” Not only does this criminalise a traditional form of employment for traditional sociocultural identities and communities, it does so without providing any concrete alternatives. It also allows the state to impose compulsory labour. Combined with rehabilitation in homes, this seems suspiciously to feed into the Prison-Industrial Complex.

Reason 16 — Hazy allocation of funds

The Bill calls for unspecified grants to the National Council without specifying for what the funds must be allocated or used. Combined with the absence of a democratic community voice, this carries a risk that funds meant for the community will not truly benefit it.

Reason 17 — No legal support for runaways

Despite request, the Bill makes no special provision for trans persons who have run away from home and are dispossessed of their identity and other documents (families often hold documents ransom to control the movements of the individual).

Reason 18 — Immunity clause for state actors

The Bill carries a dangerous clause that “no suit, prosecution or other legal proceeding” can be brought against the government or any local authority/officer “in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act and any rules made thereunder.” This clause gives immunity to state actors for any violent or violative actions they may undertake in claimed “good faith” under claimed pursuance of their duties under this Act and thus carries immense scope for abuse.

It is unclear why the government is in a hurry to pass this Bill despite the several statements issued by the community and its allies to the government, the many protests, a report from the Expert Committee on the Issues relating to Transgender Persons, the limited but vocal depositions before the Parliamentary Standing Committee, the recommendations of this committee, and the existence of a parallel and infinitely more benevolent and appropriate Rajya Sabha Private Member’s Bill. All that can be said is that the passing of this Bill by the Rajya Sabha will be a serious miscarriage of justice. It must not be passed without the amendments the community seeks.

  • Quoted Bill text cited from: HERE