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Tabular Critique of the Transgender Bill 2016 Community Resources

21, Dec 2017 | Sampoorna India Blog

This table compares the provisions in the Transgender Persons [Protection of Rights] Bill 2016 that will reportedly be tabled in the winter session of the Indian Parliament against the criticisms made by trans*, gender variant, and intersex groups, and the demands for revisions required to protect our rights. This was originally published on Sampoorna India Blog

PROVISION IN THE TRANS  BILL 2016 DEMAND FROM TRANS* AND INTERSEX GROUPS
1) DEFINITION OF TRANSGENDER PERSONS

Definition of Transgender in the 2016 Bill is as follows:
transgender person” means a person who is—
(A) neither wholly female nor wholly male; or
(B) a combination of female or male; or
(C) neither female nor male; and
whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans men and trans women, persons with intersex variations and gender-queers.

  1. Uphold the right to self-determine gender identity irrespective of surgeries or hormonal therapy which was granted by the Supreme Court judgment and consistent with international precedents on recognition of trans identities.
  2. A separate definition for trans and intersex identities to be adopted.
  3. Rename the Bill as the Rights of Transgender and Intersex Persons Bill.

DEFINITION: TRANSGENDER
Transgender persons are those individuals who are socially, legally and medically categorized as being either male or female, but who assert that this is not their self-identity and /or expression.
Transgender people may or may not be intersex.

DEFINITION: INTERSEX
Intersex persons are those individuals who have atypical sex characteristics [anatomical, chromosomal, hormonal etc] that do not conform to the social, legal and medical categories of being either male or female.
Intersex people may or may not be transgender.

2) PROVISION OF DISTRICT SCREENING COMMITTEES
The current bill mentions that a trans person has to file an application on the receipt of which the District Magistrate will refer them to a District Screening Committee. The District Screening Committee will include a Chief Medical Officer, a psychiatrist or psychologist among others.
  1. The right to self identify our gender without physical screenings/evaluation should be upheld in consonance with the Supreme Court NALSA judgment.The provision of district screening committees must be struck down.
3) CRIMINALISATION OF BEGGING
The Bill says-Whoever,—(a) compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for 20 public purposes imposed by Government shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
  1. This provision should be completely removed from the Bill because it will lead to the further criminalisation of vulnerable trans communities struggling to make a livelihood.
4) DEFINITION OF FAMILY
The Transgender Persons (Protection of Rights) Bill 2016 says,
(1) No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person.
The bill also says that,
“Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in a rehabilitation centre”.
  1. The definition of family should be expanded to include families of choice/adoption in order to stop criminalisation of hijra family structures.
5) TRANS HEALTH CAREThe appropriate Government shall take the following measures in relation to the transgender persons, namely:—
(a) a separate human immunodeficiency virus Sero-surveillance Centres;
(b) to provide for medical care facility including sex reassignment surgery and hormonal therapy; (c) pre and post sex reassignment surgery and hormonal therapy counselling
(d)bring out a Health Manual related to sex reassignment surgery in accordance with the World Professional Association for Transgender Health guidelines;
(e) review of medical curriculum and research for doctors to address their specific health issues;
(f) to facilitate access to the transgender persons in the hospitals and other healthcare institutions and centres;
(g) provision for coverage of medical expenses by a comprehensive insurance scheme for transgenderpersons
  1. The provision for free gender affirming surgeries and procedures should be reinstated from earlier version of the Bill drafted in 2015.
  2. The Medical Council of India should make clear guidelines about trans health care and also the standards of care in government hospital and ensure a monitoring mechanism to ensure smooth functioning and accessibility.
  3. The provision for separate wards for transgender persons in hospitals must be included as mentioned in the Tiruchi Siva private member’s Bill..
  4. Medical negligence cases and human rights violations in trans health care must be punished stringently under the criminal justice system and provision must be made for the same.
  5. Juvenile justice shelters, short stay homes and prisons must be equipped to provide education and health care to trans people in those facilities.
  6. Medical insurance guidelines must be made to include trans people in accordance with the Supreme Court judgment granting the right to self identify gender.
6) AFFIRMATIVE ACTION
Not mentioned in current bill.
  1. The provision for affirmative action in education and employment should be reinstated in accordance with the Supreme Court judgment. Within affirmative action policies, special quotas  should be given to trans persons belonging to Scheduled Caste/Scheduled Tribes/Other Backward Classes to ensure access and equality.
7) OFFENCES AND PENALTIES
The Transgender Persons (Protection of Rights) Bill, 2016 says:Whoever,— (a) compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government; (b) denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use; (c) forces or causes a transgender person to leave house-hold, village or other place of residence; (d) harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
  1. As mentioned before, the criminalisation of begging should be removed as it will create further risks of abuses from law enforcing agencies on a vulnerable community that currently has no access to dignified employment.
  2. The many provisions which penalise the dereliction of duty on the part of the enforcing authorities from the 2014 version of the Bill must be reinstated.
  3. Provision for criminal prosecution of police officers who commit human rights violations against transgender persons or omits to perform his duty to protect them must be included.
  4. There should be proportional and not lesser punishments for perpetrators of crimes against trans persons.
8) DOCUMENTATION/INTERVENTION IN CASE OF HUMAN RIGHTS ABUSES
The Transgender Persons (Protection of Rights) Bill, 2016 only provides for a National Council that will be an advisory agency to the central government to implement trans specific policies.
  1. Transgender Persons’ Welfare Commission on the model of the SC/ST Welfare Commission or National Human Rights Commission should be provided to look into human rights violations against trans communities.
9) PREVENTION AND PENALISATION OF ATROCITIES AGAINST TRANSGENDER PERSONS
No specific provisions mentioned to prevent and penalise atrocities against transgender persons in current bill. Penalties given under the offences and penalties section in the current bill is “punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.“
  1. Sexual assault laws are currently gender specific and do not cover transgender persons. Either the relevant IPC sections must be amended to protect transgender persons or a separate Prevention of Atrocities against Trans people must be implemented along with stringent criminal punishments in case of any violations.
  2. Violations by police personnel, familial violence,within short stay homes, health care set ups, educational institutions should be brought under the purview of the Bill.
  3. Forcibly parading naked, forcible cutting of hair, inhuman medical practices like aversion therapies and injecting more hormones to make a person conform to the societal and familial expectations of gender conformism, not renting houses to transgender individuals, burying a trans person in a gender that they rejected when alive, forcibly marrying trans individuals to make them conform etc must be brought into the ambit of the Bill.
10) PROTECTIONS FOR TRANS PERSONS IN PRISONS/JUVENILE HOMES
No provision in current bill
Provisions for trans people to be lodged in prison wards appropriate to their chosen gender irrespective of hormones, surgical interventions or provisions for separate cells within women’s wards should be made. Only women police/jail personnel to handle trans inmates must be specified. Trans specific healthcare needs and state funded legal aid and education/vocational training should be compulsorily provided to all trans inmates.

 

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