Delhi, December 17, 2017: “Reservations nahin diye, aur rozi roti bhi chheen lenge. Yeh kaisa kaanoon hai?” (They didn’t give us reservations, and they want to snatch away our livelihood as well. What kind of a law is this?). One among several voices of protest at Parliament Street in Delhi today against the Government of India’s Transgender Persons (Protection of Rights) Bill, 2016.

Waves of protests and media conferences have been taking place over the last week in several states across India, and today hundreds of transgender men and women, intersex and gender non-conforming people and their allies came together in Delhi to protest the Bill that has been described as outright discriminatory and unjust.

Apart from Delhi and its neighbourhood, the protestors included people from Assam, Andhra Pradesh, Bihar, Gujarat, Karnataka, Kerala, Maharashtra, Manipur, Meghalaya, Nagaland, Tamil Nadu, Telangana and West Bengal.

Quote: In rage, transgender activists tore up the Bill and demanded their constitutional rights from the government: “We would rather have no legislation, than this draconian, regressive legislation!”The Bill was introduced last year in the Lok Sabha by Social Justice Minister Thawaar Chand Gehlot, but was criticized on several grounds by transgender, intersex and other queer community groups. The government invited inputs from different stakeholders, even setting up a Parliamentary Standing Committee on the matter. However, in a recent abrupt decision, the government rejected all inputs received over nearly a year and said it would table the original Bill in the upcoming winter session of the Parliament.

In April 2014, taking cognizance of the discrimination and ostracization faced by transgender and non-binary individuals, the Honourable Supreme Court of India in National Legal Services Authority Vs. Union of India and Others (NALSA) had directed the government to grant legal recognition to transgender individuals and to take specific steps to ensure equality and non-discrimination for transgender persons (see inset below).

The Transgender Persons (Protection of Rights) Bill, 2016, on the other hand, stands in sharp contrast and disregard of the NALSA judgment. It completely ignores also the Parliamentary Standing Committee’s report. Far from protecting the rights of the transgender communities and empowering them, this Bill, if passed, can end up curtailing the rights already granted in the NALSA verdict.

Inset: What the Honourable Supreme Court of India said in the NALSA verdict (April 2014): “Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”

To begin with, the Bill does not take the complexity of transgender, intersex and gender-queer identities into account and reduces the definition of transgender to the binary metric of ‘male-female’ by defining a transgender person as “neither wholly male or female” or “a combination of both male and female” or “neither male nor female”.

One of the transgender activists gathered at the protest in Delhi said: “Gender is an expression and we all express it differently. This Bill dilutes identities and makes us fall under one category of ‘transgender’ for the government’s own convenience.”

In the process, the Bill also ignores the distinct, even though sometimes overlapping, concerns of transgender and gender variant individuals from those of intersex persons. The fact is not all intersex persons may identity as transgender, and neither are all transgender persons intersex.

Speaker after speaker at the protest expressed outrage at the clause that mandates verification by a screening committee. “Why does the government get to decide our identity? When cis individuals [people whose gender identity matches the gender that they were assigned at birth] are not expected to prove their identity, why are we trans people always put under the test of proving our authenticity?”

Another grievance against the Bill is that it does not grapple with relevant issues like inheritance and property rights, which concern transgender persons who are often banished from their families. The Bill does not provide for the right to marry and to adopt, thus depriving transgender persons of Fundamental Rights under Article 14 of the Constitution of India.

A Hijra activist pointed out: “The Bill criminalizes mangti [seeking alms] without speaking of reservations or other forms of livelihood. Without offering us solutions, how can you take away our existing means of livelihood?”

Indeed, the Bill remains woefully silent on the issues of affirmative action and welfare schemes, something that NALSA had advocated for. The Bill does not protect transgender persons from discrimination and harassment. There are no specific provisions to address the many ways in which transgender persons can be harassed and victimized.

“Every time we go out on the street, we are harassed, eve-teased and sexually harassed. We have been tolerating so much discrimination and stigma for years. We have been pushed into sex work and left to beg on the streets by this society. And now that we are asking for our rights, this Bill has been given to us. This Bill does not give us any rights but takes away everything that NALSA gave us,” the Hijra activist asserted.

Many Hijra and other transgender women find traditional practices like mangti to be the only source of income as they are denied access to education and employment because of the stigma around their gender identity. The Bill seeks to penalize anyone who “entices” a transgender person to beg. Unclear on how to ascertain how “enticing” is carried out, the Bill once again indulges in ambiguity which can lead to criminalization and further stigmatization of Hijras and the traditional Hijra gharanas.

Provisions such as these could give immunity to the police to exert force on transgender women, since there has been a history of police violence and crackdown on Hijras and other transgender women on account of begging.

Frivolously drafted, the Bill has provisions that perpetuate discrimination and treat transgender persons as second-class citizens. For instance, Section 19(d) of the Bill states 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”.

It is a matter of grave concern that the punishment for “endangering” life or causing physical and sexual abuse is limited up to only two years. Not only does this trivialize the lives of transgender persons but also goes against the paradigm of equal rights.

Inset: Key demands of the national campaign to protest the Transgender Persons (Protection of Rights) Bill, 2016: 1) Hold widespread consultations with transgender community members from all gender identities and regional identities before bringing the Bill before the Lok Sabha; 2) Implement key recommendations that will decriminalize the transgender community and provide equal penalties for violence against transgender people as for all people; 3) Uphold reservation and anti-discrimination policies that hold the key to liberating transgender people from widespread barriers to education and employment. Source: Media release issued at protest site, December 17, 2017

The Bill’s failure to define the terms “abuse” and “endanger” makes both the crime and its sentencing unclear, hence creating ambiguity that can work against transgender persons. Further, the Bill creates an ambiguous space within law to deal with crimes against transgender persons instead of incorporating necessary changes in existing laws, broadening definitions and defining scope to include non-binary individuals.

Sexual assault, for instance, is not defined in the Bill. It has also not been made clear whether the existing definition and punishment for sexual assault under Sections 375 and 376 of the Indian Penal Code can be broadened to include transgender persons. The lack of clarity makes transgender persons vulnerable to the law and may deny them access to justice. In a recent case of rape of a transgender woman in Pune, the judge dismissed the case saying:

“It was difficult for us to establish that a transgender was raped by four men. The law states that Section 377 of the IPC is intercourse against the order of nature with any man, woman or an animal. There is no mention of a third gender. We could have shifted the case to Section 376, but even that became difficult because there is definitive mention of a gender.”

On the next steps, one of the activists said: “We have to take this movement to various states, need to meet with MPs and express our dissent. We want to know how many people in the Parliament have read the Bill. Our lives depend on the Bill. Drafters of these legislations don’t know anything about our identity and without our consultation they draft laws about us. This Bill is anti-people and anti-trans and the government will have to realize that they are accountable to us. We need to demand more accountability from the government.”

In rage, transgender activists tore up the Bill and demanded their constitutional rights from the government: “We would rather have no legislation, than this draconian, regressive legislation!”

About the main photo: Protest against the Transgender Persons (Protection of Rights) Bill, 2016 under way on Parliament Street in Delhi on December 17, 2017. Photo credit: Ajita Banerjie