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UPAMA BHATTACHARYA | 19 DECEMBER, 2016

The Transgender Community And Legal Researchers on the Transgender Bill 2016


NEW DELHI: We conversed with Neysara Rai and Anu of Transgender India, a forum for transgender people based in Mangalore, and Namrata Mukherjee and Nikita Khaitan of Vidhi Centre for Legal Policy based in Delhi on certain clauses of the transgender bill of 2016 and have compared what the transgender community has to say with what legal researchers have to say on those clauses of the bill.

On the issue regarding how “transgender” has been defined in the bill that a transgender is neither male nor female, or combination of male or female and getting one’s identity certified from district magistrate, Neysara of Transgender India is of the opinion, “We don’t think transgender should be defined in the way the bill has defined. That’s a very abstract way of defining it, there has to be a clear cut definition. Who falls under transgender, who doesn’t to determine who can avail quota.”

“It shouldn’t be like anyone wearing a saree going in front of an inspector becomes a certified transgender. Because whatever relief the government is providing has to actually reach the people being affected, so there has to be a strict gate keeping mechanism, which will stop people from abusing it. Because there are a lot of people who are hijra just for profession and who are not transgender in actuality. Government can have the provision that a person can be free to select one’s gender identity when it comes to identifying one’s gender in driving license, passport, etc, but when it comes to availing quotas there has to be a gatekeeping mechanism.”

Anu says, “The 2016 bill’s definition of transgender is completely biased towards the hijra community. A lot of people come under the umbrella of “transgender”. Transgender doesn’t just mean the hijra, there are transmen, transwomen, genderqueer, why is the government only concerned about transwomen and not others.

Namrata of the Vidhi Centre for Legal Policy on the same issue opined that, “The way transgender has been defined in the bill reinforces many of our stereotypes. Intersex and transgender are two different concepts. The definition of transgender in the 2016 bill has been picked up from an Australian legislation which deals with both trans rights and inter sex rights. So the definition of inter sex has been copy pasted from the Australian bill. There’s a sort of consensus that the 2015 bill has the best definition of transgender, the definition also allows one to identify oneself as man, woman or transgender, but the 2016 bills conflates transgender with intersex.”

Namrata added on the issue of certification process, “The trans community is divided on this issue, some believe that the right to self determination should be absolute, others believe there should be a screening process in fear of misuse to gain access to the affirmative actions. Foreign jurisdictions like Malta, Argentina, Ireland have recognized absolute right to self determination, so there is a movement towards doing way with the screening process. When there is a screening process it should be transparent and accountable and doctors should be removed from this process because this is again pathologizing the trans condition. There should also be the right to appeal if you are not in agreement with the certified decision.

Nikita of the Vidhi Centre added, “If the whole rationale for having the screening process is to prevent the abuse of affirmative actions then the other provisions of the bill which seek to protect them against discrimination, criminal actions, those shouldn't require a screening process. Here the right to self determination should be absolute.”

On the question of the clause which seeks to prevent begging by the transgender, Neysara is of the opinion that, “Loans should be given to transgenders so that they can start their own small business, that is much more respectable than begging in the trains. We support the anti begging clause but it should have much more severe punishment for forcing people to beg, it should deter hijra gurus from forcing people to beg. Hijra is a communal identity not a gender identity. To get into the hijra community, there’s an initiation ceremony called nirvana where all the local, state gurus come, where they adopt the new chela to the community. This is an organised form of profession where every area has a guru, and in that area only that guru’s chelas can beg. The chelas whatever they earn they need to give it whole or 50% to their gurus or the nayaks and the guru takes care of the chela in return.”

“Two years back a hijra girl was burnt alive by her guru, the guru chopped off her breasts just because she didn’t want to be associated with the guru anymore, and he did this in front of all other hijras to set an example. The guru-chela relationship is a form of bonded labour. The hijra gurus are like the white masters. Often the gurus are very powerful politically, and cases of exploitation are hushed. Operation Anandi was a sting operation done by TV9, where it was revealed that a group of transgender people of the hijra community in Bangalore were abducting boys who had gender identity issues, castrating them without their consent and forcing them into sex work. There has to be some lease on the hijra community. It’s a business for the gurus. There is a childline help number in India, government should notify the childline number and other child welfare institutions, that if children call for gender issues they should be helped. We don’t want to see more beggars and more sex workers from the transgender community.”

On the same issue, Namrata said, “Anti begging legislations which started in Bombay has extended to other states which are used to harass the trans persons whether they are begging or not. They engage in begging because they don’t have access to other economic opportunities. Hence both the trans identity and their livelihood is criminalised.”

On the issue of 377, Neysara said, “Ours is a gender identity not a sexual orientation. I’m against 377 because it’s an archaic law. But it can so happen that any gay person would say ‘I’m a transgender’ and get married. There’s no clear cut definition as to who is a ‘transgender’”.

Nikita said on the same issue, “In NALSA judgement a distinction has been drawn between gender identity and sexual orientation. When there’s sexual identity here is where the question of 377 and it’s application comes whereas gender identity is what this bill seeks to address. Namrata added, “traditionally 377 has been used to criminalise and harass the trans community. The moment you are visibly trans is when it’s presumed that you are engaging in activities which 377 seeks to curb. So gender identity and sexual orientation has a nexus. So unless you repeal 377 there can’t be a full realisation of trans rights. And the bill doesn’t seek to address this at all.”

Both Transgender India and Vidhi Centre pointed out the same lack in the bill. Neysara said, “When it comes to a gender specific bill like the transgender bill, it should have some gender specific laws such as rape laws, marriage law, divorce law, etc.”

Namrata said, “There’s a huge range of laws that are all gendered in their applications, not just family laws, and there’s no clarity regarding how a trans person would be able to deal under these laws -marriage, adoption, succession, inheritance, etc. Foreign jurisdictions like Malta, Ireland, UK they have clarified this. India hasn’t thought so far and is only restricted to welfare schemes for trans persons.”

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