While designed to protect, the transgender policy in its passage of being transformed into law in India will allegedly undermine the rights and affect lives of lakhs of the very individuals it seeks to protect. The Bill was introduced by the current Bharatiya Janata Party-led Central government, watering down the already existing Rights of Transgender Persons Bill, 2014 and on December 17, 2018, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2018. The day that has been termed as – a “Black Day” by transgender rights activists. Ripples of the nationwide outcry could also be felt in Guwahati where people of the transgender community took to the streets of the city on February 17, 2019 to voice their opposition against the Bill.
Transgender rights’ activists and civil society organisations had highlighted numerous flaws, and called for amendments in line with national and international human rights standards. However, despite the government introducing 27 amendments to the original Bill, major problems have not been addressed.
The Bill has been termed as “discriminative, harmful and violative” to the guidelines and directions of the Supreme Court of India on Right to Privacy. Activists fear that the Bill gives the right to the government to strip them off their clothes before doing anything to protect them.
For a group that has been demonised, persecuted and marginalised for centuries, the renewed urgency to stop the passage of this Bill must be paid mind, and fast.
Swati Bidhan Baruah, a transgender activist, said the current bill would make life difficult for the community, especially by refusing the right to self-determine one’s own gender.
While the 2014 National Legal Services Authority judgement which states that transgender persons have the right to gender self-identification and that a trans person could choose to identify as a male, female or third gender, the new policy trespasses the privacy of a transgender.
The Bill says that a transgender person has to go through a screening committee that will comprise of a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person which will then recommend the District Magistrate to grant a certificate of identity.
“We believe that it is a harm and sheer violation of our privacy because through the screening committee, the government will have the power to strip a transgender person off their clothes to check whether they are real or a person in disguise and to check what is between the legs is a violative provision for the transgender community,” says Swati Bidhan Barua, founder, All Assam Transgender Association and the state’s first transgender judge.
Activists also said that the provisions included in the Bill will perpetuate a non-restrictive environment to abuse a transgender.
Julie Kinnar, a transgender woman, said, “We strongly oppose the transgender bill as it will strip us naked which is heinous even to be considered. We are the citizens of this nation and we have our dignity and we cannot let this happen. If required, we will launch massive protest and are ready to sacrifice our lives to protect our dignity.”
Due to the existing social stigma and lack of education, the community is forced into begging and sex work. However, a clause in the current Bill criminalizes the very source of the community’s livelihood – begging. The clause reads, “Whoever compels or entices a transgender person to indulge in the act of begging 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.”
As the community has noted, this clause is likely to be misused against the other transgender persons, in the garb of protecting them.
The All Assam Transgender Association have taken up with the issue with the state government and mentioned that if a conclusive result is not reached, the association will knock the door of the court house. The association also directed towards corruption in the social welfare department by naming a senior official who is trying to misuse the Rs 2 crore allocated for the welfare of the transgender community.
According to the draft policy, the Government of Assam has provided Rs 2 crore for 2018-19 to the social welfare department to undertake various welfare schemes for the transgender community.
The schemes include preparation of a database, identification and issuance of gender identity certificates, monthly pension scheme for transgender persons in the age group of 40-60 years, and provision of a shelter home in Guwahati among several others. However, it is alleged that the money is ‘misused’ for advertisements.
“A joint-director of the department named Sayed Isme Alam is trying his best, for intentions unknown, to misuse the 2 crore allocated for the welfare of the transgender community and rather spending the fund in the name of policy printing or publicity, which is an indication towards a massive corruption in the near future,” Swati said.
Transgender persons in India have historically faced discrimination in many areas, including access to education, employment, health care and housing. While the Bill prohibits discrimination, it does not explicitly include a definition of discrimination that covers the range of violations that transgender persons face.