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Transgenders need progressive laws

Sanjeeb Panigrahi |

Transgender-related issues have come to occupy centre stage and are acknowledged within our social and cultural framework, though social policies have failed to capture the specifics of their needs, experience and ground realities. Over the last decade, a divergent range of transgender identities have been articulated though transsexual narratives. The word ‘transgender’ is an umbrella term to denote persons whose gender identity is different from the sex assigned to them at birth. They are incredibly diverse and exist in every culture, religion, castes, creed etc as recorded in history. They often identify themselves as male, female, agender but their identity as transgender faces a unique set of challenges and social stigma. They continue to suffer a disproportionate level of negative attitude and severe forms of discrimination.

Sexual orientation has been an integral aspect of “private life” and it is essentially a private manifestation of the human personality which has been echoed in the privacy judgment of the apex court. Given rapid social changes occurring in different parts of the world, the evolving equality of standards and growing public acceptance of same sex marriage has been a watershed in the transgender persons’ battle for legal rights. There has been an increasing visibility of transgenders in every walk of life in India and they are numbered as 4.87 lakh (Census 2011) though the figure is disputed by NGOs and human right activists.

The legislative policies may appear to be neutral, but they are often rigid and impose strict gender requirements. Though the Government has been clamouring for equal opportunities for all communities, this community is still in the darker side of inclusive growth. In India, rights of the transgender have started moving from the margins of society to the mainstream political and legal discussions only after the Apex Court’s judgment in the NALSA case. A comprehensive non-discriminatory law for the transgender community is still elusive though there has been intense public discourse on the issue.

As many as 20 countries have made some tangible and concrete legislative efforts in some form or other in recognising their rights. The widespread lack of accurate identity in India deprives them from many public utility services including housing, transport facilities and medical facilities. The human right groups and transgender advocacy groups have been continuously working to remedy the disparities associated with them. The Supreme Court through NALSA judgment (2014) embarked on a journey by initiating legal recognition to transgender persons by creating a category called “third gender” seeking legitimacy through legislative efforts. In fact, it opened vista for a new discursive framework, there has been a paradigm shift in gender identities and the SC judgment is an identity innovator.

Besides, the negative right against discrimination, the apex court ruled that transgender persons are also entitled to some positive rights to make decisions about themselves, and are entitled to participate in community life. The apex Court also directed the government to accord “socially and educationally backward status to make them the beneficiary of the schemes and policies of affirmative action”. Consequently, the Union Government conceptualised a bill to reinforce the apex Court’s judgment and Parliament is in the process of making a law. However, this narrative collapses when the issues are considered more closely, as the Bill reflects a clear move to circumvent the spirit of the apex Court’s judgements on the subject.

The Bill was tabled in the Lower House and later referred to the Parliamentary Standing Committee on Social Justice and Empowerment for further deliberations on certain contentious issues. The standing committee in its report suggested certain amendments in the draft bill which included a definition of “transgender” that is not attuned with global norms. The proposed legislation is not sufficiently rooted in a rights-based approach. The Parliamentary Panel report echoes a progressive tone by addressing certain critical issues in the bill including the controversial Section 377 which criminalises homosexuality. Crucial issues like gay marriage, divorce, adoption etc. are not dealt with by the Bill.

The Union Government, however, ignoring the understanding of gender in proper perspective and without considering some illuminating suggestions of the Parliamentary Panel Report, appears determined to re-introduce the Transgender Persons (protection of rights) Bill with some inconsequential changes. The proposed legislation also seeks to reserve 2 per cent seats in educational institutions as well as in government jobs.

Besides, the formulation of national and state level commission for transgender people and formation of special transgender rights court, the Bill also takes care of the Rights of a transgender child for home and imposes condition for foster care and prescribes punishment for transgender-related hate crime; these indeed are some of the progressive clauses in the Bill.

Despite the Bill falling on stony ground and being beset with many deficiencies, it is a benevolent social legislation with a welfarist tone and approach. It is, therefore, incumbent upon the government to adopt an inclusive approach towards this neglected community and come up with the best law possible. The standing committee has gone much beyond rights and welfare of the transgender by making attempts to redefine many terms contained in the bill. The wrong assumption of biological determinism and the proposed national council for transgender person which is merely an advisory body sans any teeth in terms of enforcement power are some of the major flaws in the Bill.

There have been decent moves transcending rhetoric at the State level. Tamil Nadu, Karnataka and recently Odisha have rolled out the most progressive developmental policies for the Transgender community. Tamil Nadu has set a good precedent by appointing its first Transgender Police Officer, Prithika Yashini. In October 2014, the University Grants Commission (UGC) vide its circular mandated all Indian universities to include a column for Transgender Community in all application forms. The circular also included extension of affirmative action to Transgender students who would get acclimatised without facing humiliation, fear, stigma or shame including creation of Transgender friendly infrastructure and a sensitized atmosphere in the campuses.
Besides legislative efforts, there is a need to map work in order to formulate a robust policy with an inclusive approach. Any policy framework for the Transgender has to focus on issues like improving legal access and the law enforcement systems empowering and sensitising people on this issue, criminal and disciplinary action against perpetrators of violence against transgender persons, strict action against parents who neglect, abuse or leave their child because of their biological difference, provision of free legal aid for the Transgender community at ground level, supportive and encouraging role by educational institutions in providing education to transgenders ensuring smooth flow of the provisions of social entitlement and establishment of helpline for career planning and guidance. Liberal credit facilities and financial assistance need to be ensured for making them self-sufficient. In addition, separate policies targeting health care must be framed and communicated to all private and public hospitals or clinics, mass awareness programmes to reach the public and this community and a comprehensive sex-education programme need to be incorporated in school and college curricula for creating awareness.

It is heartening to note that during the last one decade, the views of people have widened dramatically crossing the traditional gender boundary. Taking a cue from the advanced countries of the world, India need to harmonise its domestic laws to reflect the progressive ideas on this subject. The cultural and religious norms must not impede a supportive and inclusive legislation considering the commands of social justice as enshrined in our Constitution. The NALSA judgment, Ram Singh judgment and the report of the “expert committee on transgender” must be the guiding force for the proposed legislation or any transgender-friendly social policy framework.