A rights bill gone wrong – OPINION – The Hindu
A rights bill gone wrong
- The Transgender Persons Bill 2016 is the product of an insincere attempt at lawmaking
- A disturbing facet of lawmaking in India is that laws are often drafted without in-depth research, as a result of which they are misinformed and remain paper tigers.
- Radical changes in draft
- In April 2014, the Supreme Court delivered the landmark judgment of NALSA v. Union of India, which affirmed the fundamental rights of transgender persons.
- It also directed that the Expert Committee Report prepared by the Ministry of Social Justice and Empowerment (MSJE) be implemented.
- In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. On April 24, 2015, in a rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha.
- The government decided to get its own Bill — The Rights of Transgender Persons Bill, 2015 — drafted, which was put up for public comments in December. The 2015 Bill was largely based on the 2014 Bill, but it did away with provisions on Transgender Rights Courts and the National and State Commissions.
- Bill introduced in the Lok Sabha was drastically different from the 2015 Bill
- Not only was it shorn of many critical features of the previous two Bills, it also completely disregarded all existing discourse and resources — the NALSA judgment, the Expert Committee Report, and public comments.
- this watered-down Bill reflects callousness on the part of the legislature.
- the 2016 Bill in many ways falls short in its substantive content.
- Clause 2(i) of the Bill, which defines the term ‘transgender person’, has been inexplicably borrowed from a provision of the Australian Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which defines the term ‘intersex’.
- even though the Expert Committee Report clearly explained the difference between transgender and intersex identities.
- The 2014 and 2015 Bills had more accurate definitions of the term transgender. In fact, the 2015 Bill was the most progressive in this regard as it granted a transgender person the right to identify as either ‘man’, ‘woman’, or ‘transgender’.
- Another problem is the absence of a provision on reservation, running contrary to the NALSA judgment and the 2014 and 2015 Bills which directed reservations for transgender persons.
Not a rights-based approach
- While the NALSA judgment is couched in rights language, locating the fundamental rights of transgender persons in the golden trinity of Articles 14, 19 and 21 of the Constitution, the 2016 Bill, though it uses the word “rights” in its title, deviates from a rights-based approach and leaves transgender persons at the mercy of the “benevolent” state.
- The Bill is completely silent on how its content will impact the operation of existing laws
- Most laws, including of marriage, adoption and succession, continue to be based on the binary of male and female.
- Criminal laws, especially those dealing with sexual offences, also continue to be gendered.
- The cisnormative (the assumption that everyone has a gender identity that matches the sex the person was assigned at birth) foundation of the law remains a significant barrier to access to legal justice for transgender persons.
- Jurisdictions like the U.K., Ireland, Argentina and Malta, which have legislated on transgender rights, clarify in their laws the impact gender change will have on existing legal institutions that are inaccessible to persons with non-conforming genders.
- The NALSA judgment too recognises the need for making civil rights accessible to transgender persons. However, the Bill fails to take this into account.
- None of the Bills have addressed the issue of Section 377, which is frequently used to harass transgender persons, specifically transgender women.
- The conventional understanding of Section 377 is that it criminalises all sex that is not between people of opposite genders. But recognising trans-rights means recognising that there are more than the “opposite” genders of male and female.
- The 2016 Bill is the product of an uninterested and insincere attempt at lawmaking. India is within touching distance of enabling the legal empowerment of a hitherto marginalised community and it would be a shame if it squandered the opportunity by passing a bad law.