India’s well-known civil rights organization, People’s Union for Democratic Rights (PUDR), characterizing the transgender bill – currently pending before Parliament – “draconian”, has said that it “violates” transpersons’ freedom of association in intimate and personal relations by refusing to “recognize ‘families of choice’ among hijras as self-determined arrangements of care.”
The bill, says a PUDR statement, “upholds Brahmanical patriarchal family forms, which inflicts daily punishment and humiliation on transpersons”. It adds, under the guise of combating trafficking in persons, it “increases policing in trans-communities and of trans-bodies, who are already highly vulnerable, to police harassment and violence.”
Signed by Deepika Tandon and Shahana Bhattacharya, secretaries, PUDR, the statement demands immediate withdrawal of the bill, even as “upholding the right to self-determination of transpersons recognized by the Supreme Court”, decriminalizing begging and sex work, and guaranteeing reservations in employment and education.
Text of the statement:
PUDR stands in support of the trans, queer and LGBTQI+ movement in opposing the Transgender Persons (Protection of Rights) Bill (the Bill) as an assault on the democratic rights of transpersons. The Bill violates the right of transpersons to self-determination and self-identification, recognized by the Supreme Court as a fundamental right under Art. 21 in the 2014 NALSA v. Union of India judgment. Under the guise of combating trafficking in persons, the Bill increases policing in trans communities and of trans bodies, who are already highly vulnerable to police harassment and violence, and disproportionately represented in the prison population of the country.Instead of upholding the right to self-determine ones gender, the Bill provides for ambiguous definitions, invasive procedures and increased criminality, to add to the hurt and humiliation of trans and intersex persons. Carrying forward the stigmatization of non-conforming gender identities as an ‘illness’ or pathology, the Bill requires transpersons to submit to a certification process before a panel of medical officers, psychologists and psychiatrists to determine their gender, and provides for recognition of a person as either man or woman only after mandatory Sex Reassignment Surgery (SRS).
In a measure that purports to protect the rights of transpersons as a vulnerable class of people, the Bill penalises anyone who ‘compels or entices a transgender person to indulge in the act of begging’ without any attempt to address the root causes which drive transpersons to begging to earn their livelihood, namely, discrimination, segregation and exclusion from education and employment, thus resulting in indirect criminalisation of begging.
Ironically, the Bill does not criminalize sexual violence including rape, normalized against transpersons instead, these offences are treated as ‘petty offences’, bailable and non-cognizable, with punishment of 2 years, compared to 7 years for the same offences under IPC. Though, the 2013 Criminal Law Amendment provides for gender neutral provision against the sexual harassment (S. 354A IPC) and the same was upheld recently by the Delhi High Court in Anamika v. UOI & Ors (2018) but the rest of the provisions awarding protection (354, 354B, 354C, 354D) remains gender specific and thus, inaccessible to transpersons.
The Bill also empowers the Court to send transpersons into the custody of ‘rehabilitation centres’ on being abandoned by their birth-families, which are primary sites of their torture and harassment. By failing to recognize ‘families of choice’ among hijras as self-determined arrangements of care, the Bill violates their freedom of association in intimate and personal relations, and of those facing common oppression. It upholds Brahmanical patriarchal family forms, which inflicts daily punishment and humiliation on transpersons.
It is important to note that Rajya Sabha passed its first ever Private Member’s Bill in the last 48 years, the progressive draft of The Rights of Transgender Persons Bill, 2014, which was tabled by Tiruchu Silva. The Private Bill had separate provisions for 2% reservations in education and public employment, establishment of National-State Commissions, Legal Aid and Fast Track Courts, after extensive democratic consultations, but the same has been left pending since 2015 in the Lok Sabha.
The Standing Committee also recommended reservations and recognition of civil rights like marriage, partnership, divorce and adoption. The Central Government tabled its own Bill in the Lok Sabha in 2016 to thwart the progressive provisions of the Private Bill which was passed in 2018 with amendments completely disregarding recommendations by the Standing Committee.
PUDR vehemently opposes the passage of the Transgenders Bill diluting the rights and protection awarded by the NALSA judgment as it furthers injustice and violence against the trans and gender non- conforming persons. PUDR demands:
- Withdrawal of Transgender Persons (Protection of Rights) Bill and The Trafficking Bill.
- Refer both Bills to the Parliamentary Standing Committee.
- Decriminalize begging and sex work.
- Uphold the right to self-determination of transpersons recognized by the Supreme Court, guarantee reservations in employment and education, and provide social security.
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