For Those Marked “Other”

On April 24, the Rajya Sabha passed a private member’s bill which provides a comprehensive rights framework for transgender persons. This is a victory of staggering magnitude — not only was it voted in unanimously, it is also the first time in 46 years that a private member’s bill has been passed. The bill articulates a range of substantive rights for the community. Negative rights such as protection from torture and abuse are placed alongside positive obligations of the state, through the recognition of the rights to education and healthcare.

MP Tiruchi Siva is to be commended for, first, introducing the bill and, second, pushing it through to the final vote. However, it must be noted that the drafting process was conducted with barely any consultation with the community. This is clear from the glaring gaps in the bill. There are crucial changes that must be incorporated in the law if it is to be compliant with the principles raised in the landmark National Legal Services Authority vs Union of India judgment.

First, the law needs to provide for the recognition of legal identity. This has been a primary demand of the community, and was a guiding principle of the NALSA judgment, which mandated gender recognition of persons transitioning within the male/ female binary as well as of individuals who wanted to be identified as third gender. The bill is silent on these demands. Not only is it imperative that a procedure for legal recognition of gender change be provided for, but also that the process takes on board the principle of self-identification. As far as possible, the decision to be recognised as a gender contrary to an individual’s biologically assigned one should rest with the person, not be subject to administrative impediments.

Second, the law needs to engage more meaningfully with access to educational spaces. This is presented as a separate chapter in the bill, one that asks educational institutions to provide for inclusive education for transgender children as well as for adult education programmes. However, it does not take into account one of the major barriers to accessing education — bullying and harassment. It is essential for the education chapter to make provisions for anti-discrimination and anti-bullying cells to prevent dropouts. It is also crucial that the chapter ensures that school curricula include transgender issues from the start. This must be accompanied by teacher sensitisation. The bill also needs to expand its reference to “transgender children” to include “gender non-conforming children”. This expanded definition could then be used to include children who don’t identify or behave in the manner associated with their biological sex.

Finally, the law needs to engage with sexual citizenship, both at the level of sexual rights and violence. With respect to the former, in NALSA, the Supreme Court noted that Section 377 of the IPC, though associated with specific sexual acts, targeted certain identities, including hijras, and was used as an instrument of harassment and physical abuse against transgender persons. The law continues to be used as a tool of abuse and the only way to curb this is through a repeal of the section and thus decriminalisation of consensual sexual intercourse between adults irrespective of their gender.

As for the latter, cases of sexual assault against the transgender community are not currently prosecuted as rape under Section 375, which only recognises women as victims. This does not take into account the reality of sexual violence against transgender individuals perpetrated both by state actors and private individuals. Recognising this reality, the Justice Verma Committee had recommended amending the section to make it gender neutral with respect to the victim, asking for a provision where the perpetrator of sexual assault was male, but the victim could be of any gender. Amendments subsequently made to the IPC ignored this recommendation, but as the committee noted, it is a crucial step towards recognising sexual assault on transgender persons.

These are only three of the more pressing points to be made. For this legislation to truly achieve its potential, Lok Sabha needs to proceed in a manner that is as consultative as possible. This is a historic moment for a “minuscule minority”. Let the government make it count.

Written by: Danish Sheikh.
Published on: 29 April 2015. First published in the Indian Express.