UN India Condemn Trans Rights Bill

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Ms. Renata Lok-Dessallien

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Ms. Renata Lok-Dessallien

UN India Resident Coordinator

28 Nov 2019

On Constitution Day, 26 November 2019, the regressive Transgender Persons (Protection of Rights) Bill was passed in the Rajya Sabha despite crucial objections raised by Opposition Members of Parliament.

This bill has not been made in consultation with India’s transgender community, the very people it is supposed to protect and empower. In fact, the Bill violates the Supreme Court’s NALSA judgment spotlighting the fundamental right to self-determination of gender identity.

Trans rights activists and community leaders have made several appeals and recommendations with their objections to this Bill, but they have been entirely ignored.

Ask UN India Resident Coordinator to publicly condemn this bill. The President of India Ram Nath Kovind needs to send this bill that does more harm than good back to the drawing board.

Transgender members of our society are equally protected by the Indian Constitution. They have a right to be involved in making laws that affect their lives, bodies and identities.

The Trans Rights Bill 2019 should be rejected entirely, and a new bill should be made in consultation with the trans community.

Sources:

What next for transgender people, as India clears bill that activists call “murder of gender justice”? - Quartz

Tiruchi Siva’s Remarks : Transgender Persons (Protection of Rights) Bill, 2019

PRESS STATEMENT : Transgender Community Against Trans Rights Bill 2019

Rajya Sabha Passes Controversial Transgender Rights Bill - TheWire

Explainer: Despite criticism, the Transgender Persons Bill was passed. What’s next? - Scroll.in

Transgender Rights Bill: A Stunted Understanding of Gender and Equality - TheWire

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Dear Ms. Renata Lok-Dessallien, 		
						
It is my plea that a public statement be released on behalf of your organization regarding the regressive clauses of the "Transgender Persons (Protection of Rights) Bill, 2019" that was passed in the Rajya Sabha on the 26th of November, 2019. 
					
I am writing to you on behalf of the transgender, intersex and gender non-conforming community from across the country and allies to reject the passing of this Bill, which has been made without any consultation with the trans community, and needs to be redrafted. The President of India Ram Nath Kovind has the power to send this Bill back to the drawing board.

Here are the problems with the bill: 
The bill, in its current form, upholds lighter consequences and penalties for discrimination and assault on trans people when compared to cisgender people. It violates the constitutional rights of transgender persons to live where they please, stating that even as adults with the right to free movement and association, we must either stay with our parents or approach a court. 
The amended Bill has created a two-tier system within the transgender community, wherein persons who have not had sex reassignment surgery (SRS) can only identify as transgender and not as male or female, and the identification as transgender depends on scrutiny and certification by a District Screening Committee; those seeking to identify as male or female need to have had SRS. This is completely contrary to the NALSA verdict.					
The concept of a District Screening Committee that seeks to validate the ‘authenticity’ of a transgender person’s identity is not only completely against the letter and spirit of NALSA, but also provides immense scope for abuse. It has been noted in Tamil Nadu that the district screening committees result in individuals being physically groped for “evidence” that they are transgender, a clear case of human rights violations.	
It criminalizes the administration of hormones and other medicines while again not distinguishing between coercion and assistance in accessing gender affirming hormone therapy.
It also does not distinguish between voluntary sex work and delineate it apart from trafficking. Above all, it violates the agency of people in sex work or begging to decide if they are trafficked or choosing these forms of work.					
The bill goes against the fundamental principles of criminal justice and the Indian Constitution by creating new offenses unrelated to trafficking, using of unclear sentencing policy, vesting excessive powers in the police, etc. It also ignores and furthers the failures of existing ‘protection’ homes, failing to hold magistrates, state actors, and employers accountable, and explicitly bars victims of trafficking from accessing the legal remedies that every citizen of India is entitled to in the name of ‘protection’.					
It lacks consultation with the communities that are most directly affected by it, namely the trade unions, labour groups, sex workers, and transgender communities, specifically with respect to impact on informal labour, including begging, sex work, and domestic work, thereby categorically targeting marginalised communities.				
It declares one’s choice and form of labour and sustenance as trafficking and prescribes excessive punishment for the marginalised communities engaging in these forms of labour.				 	 	 					
The Transgender Persons (Protection of Rights) Bill, 2018, in its current form, upholds lighter consequences and penalties for criminal offenses like rape, sexual abuse and harassment on trans people when compared to cisgender people.			
The bill is a retrograde step from previous iterations of transgender persons’ rights such as reservation, employment and education opportunities, right to self determination of gender as iterated in the NALSA judgment, MSJE report, the Tiruchi Siva Bill, and the Parliamentary Standing Committee recommendations. It also fails to address accountability measures within the state and its functionaries.				
These concerns make the bill inadequate for the protection of transgender persons as it uphold the criminalisation of transgender persons for traditional sources of income such as begging, while denying any opportunities in education, employment, healthcare, etc. or recognising rights to marriage, adoption, property, etc.

In 2015, the Rajya Sabha passed the comparatively more progressive Private Member's Bill drafted by Tiruchi Siva, DMK member of the Rajya Sabha, which had been drawn up in consultation with the community, and which has since then been pending before the Lok Sabha. Tiruchi Siva's bill had several progressive positions such as reservation rights, employment and education opportunities, right to self determination, special courts, a Transgender Rights Commission and more.

The GOI Transgender Persons (Protection of Rights) 2019 bill, instead of protecting rights, criminalizes traditional hijra livelihoods and family structures. It has been passed despite quite a few Parliamentarians raising serious concerns about fundamental flaws and seeking deferral of the Bill, pending broad based community consultations.

As a whole the bill compromises the dignity of trans persons and directly flouts the Universal Declaration of Human Rights. I believe that it is your duty as an organization that upholds human rights to publicly condemn this bill.

Yours sincerely,

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