Trans Act 2019: Mapping out its implications7 min read
The Transgender Persons (Protection of Rights) Bill (also called the ‘trans bill’ or ‘trans act’) was passed in the Rajya Sabha on November 26, 2019, after a motion to refer it to a select committee of the Upper House was defeated.
The bill was cleared despite the opposition’s efforts to send the bill to the select committee. The government, with 74 votes, defeated the opposition’s 55 votes.
The bill—now act—sought to provide a mechanism for the social, economic and educational empowerment of transgenders. However, the legislation has come under heavy criticism from transgender rights activists and the LGBTQA+ community.
History: Where did it begin?
The bill was first introduced in the Lok Sabha, approximately six months ago, on July 19, 2019, by the Minister for Social Justice and Empowerment, Thaawarchand Gehlot.
In 2014, the Supreme Court of India delivered its judgment in National Legal Services Authority vs the Union of India (NALSA vs UOI). The judgement, also known as the NALSA verdict, recognised the rights of the transgender people in India and laid down a set of measures for securing their rights against discrimination in economic, social and educational fields. The government was to mandate the prohibition of discrimination, recommending the creation of welfare policies and provide reservations for transgender people in educational institutions and jobs.
The NALSA verdict also guaranteed the right of a transgender person to self-identification of gender in the absence of sex-reassignment surgery under the Indian Constitution. The Supreme Court also recognised the presence of transgender people throughout Indian history, referring to the hijra, kinnar and jogta communities spread across the country.
Tiruchi Siva of the Dravida Munnetra Kazhagam party introduced a private member’s bill in the Rajya Sabha called the Rights of Transgender Persons Bill, 2014, which was unanimously passed on April 24, 2015. This was the first private member’s bill to be passed by the Rajya Sabha in the past 36 years.
After undergoing several changes, it was introduced in the Lok Sabha by Baijayant Panda of the Biju Janata Dal on February 26, 2016. It was argued that the bill would help extend the constitutional rights of transgender people and help them lead a dignified life.
This Bill would be passed on December 17, 2018, after undergoing 27 amendments. It was met with widespread protests, and it stood lapsed.
It was reintroduced on July 19, 2019, in the Lok Sabha by Thaawarchand Gehlot, the Minister of Social Justice and Empowerment. It was first read on August 5, 2019.
The Act has since faced tremendous criticism from transgender communities and activists. In order to understand the act and its real-life implications better, The Manipal Journal spoke to Trinetra Haldar Gummaraju, a transgender rights activist and a student at Kasturba Medical College in Manipal.
How does the passing of this act affect the transgender community?
The trans act that came out is not the first version—the first version was the trans bill that came out in 2016. The original version was a very watered down and reduced version of the NALSA judgement of 2014. The NALSA judgement was an extremely liberating judgement with respect to how we would be identified based on how we choose to identify our inherent gender identity; it gave us the right to self-determination. The 2016 version made multiple attempts of taking that away. What the community really hates about the act now is that despite the 2018 and 2019 version coming out, they made cosmetic changes to the bill but they still took away the right to self-determination.
Initially, they said that they would have a district screening committee that would have different kind of people, like the district magistrate, a doctor to check if a person is trans, which is messed up—why would I have to prove to anyone what my gender identity is? We have absolutely no literacy with respect to gender and sexuality. How does it matter? What physical evidence is there of being transgender?
Because the act refuses to identify a person’s self-identified gender, as you mentioned, do you think this helps the transphobia in the country to continue? Does this act perpetuate transphobia within the country?
Completely. It essentially reinforces the idea. Even though there is now no committee, it still says that you have to go to a district magistrate—only after you have had sex reassignment surgery can you put down male or female on your documents, which is very, very debilitating. A lot of people don’t want surgery, and a lot of people can’t afford it. It reinforces the widespread idea that men and women need to have certain genitalia; certain body parts to access certain rights and live a certain way. It reinforces transphobia to a very large extent.
The Transgender Act clearly violates the NALSA verdict of the Supreme Court given in the year 2014. What do you think this says about the Indian Judicial system?
With respect to the Indian Judicial system, there is a whole lot of corruption that we do know exists. However, the NALSA judgement was a very coveted move. It is necessary now that we take this to the judiciary once again, to get the government to strike down the trans act and uphold the Supreme Court judgement that was raised in 2014. With respect to the act per se, there is not much to comment on about the judiciary, but with the NALSA judgement, I will definitely say it was a positive move. Nevertheless, we know what happened with the previous Chief Justice of India, we know how much corruption and how imperfect the judicial system is.
Do you think there is merit in the initiatives the government is attempting to take to protect trans rights?
I think the government wanted to do something to be able to say, “Hey look, we’re doing something,” to the world, leading to the Transgender Persons (Protection of Rights) Act being introduced. However, it is the very fundamentals of the act that is taking away what a transgender person is. They’re taking away the right to self identify who we are, they’re taking away the right to equality that everybody should have and very clearly, it’s not really the protection of rights.
At the same time, they aren’t providing reservation—they’re also saying that people need to have surgery before they identify as xyz. There’s a whole lot of other problems with the act as well, like the criminalisation of begging, which they only made a cosmetic change to and it’s taking away the only means of the community to actually survive.
I think it is a very hypocritical act; you are calling it ‘protection of rights’ when you yourself are taking away so many fundamental rights. I don’t think the government truly cares. Despite the protest, they have not done anything.
With the decriminalisation of Section 377 and the passing of the Trans Act, the LGBTQIA+ community in India has seen a win and a setback at the same time. How long do you think it is going to take India to become completely LGBTQIA+ friendly?
The first thing that is important to know is when it comes to the LGBTQIA+ community is that homosexual people are still more widely accepted than trans-people.
Section 377 was taken down, however, sexuality or sexual orientation isn’t something that shows on people’s face. A transgender person, someone in the hijra community, cannot hide their identity. Therefore, the amount of discrimination involved with being transgender, the amount of police brutality involved, the kind of sexual violence and other challenges that are involved is tremendous.
I think it’s going to take very, very long for that to fade. If you have a fascist government that is pushing bills down people’s throats, then it’s clearly taking the voices of minorities away, so it’s only going to take longer. There’s really no proper way to answer that, but to say it’s going to take a very long amount of time.
What measures do you think should be taken to reduce transphobia in the country?
I think that happens on multiple levels. The most basic thing to reduce transphobia, say 50 years down the line, is to have proper sex education. Having a comprehensive sexuality and gender course as part of sex education, and changing the way the education system treats the very basic act of sex.
Each kid should be taught this because kids understand this a lot more. They understand a lot easier than adults do because all the prejudices are non-existent for them. At the same time, there are larger interventions that can be kept as part of NGOs, organisations that reach out to corporates to make workplaces more inclusive, etcetera. You can reach out to hospitals to make more of them more trans-inclusive as well. People like myself, who are medical students need to be doing more of that.
Featured Image Courtesy: Tamanna Wadehra
Edited by: Rayna Lele