Monday, July 27, 2020

India’s Transgender (Protection of Rights) Act: Why the activists are opposing it?

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Vanshita Banuana

Article Title

India’s Transgender (Protection of Rights) Act: Why the activists are opposing it?

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Global Views 360

Publication Date

July 27, 2020

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Protests in Mumbai against the Transgender Bill

Protests in Mumbai against the Transgender Bill | Source: Tamravidhir via Wikimedia

On July 13, 2020 the Ministry of Social Justice and Empowerment of India notified the release of draft Rules for the much-disputed Transgender (Protection of Rights) Act 2019, and has given citizens 30 days to submit suggestions and objections.

The Ministry first published the draft Rules on April 18, 2020 and asked for comments by April 30, later extended to May 18. Based on the central government’s consideration of the submitted feedback, the updated Rules were once again opened to critique.

As summarised in this analysis by PRS Legislative Research, the Rules lay out the detailed process regarding issuance of Certificate of Identity, and welfare measures, medical facilities and such for transgender people. It also specifies that the National Institute of Social Defence will act as secretariat for the National Council for Transgender Persons.

Analysis

  1. The Act is infamous for claiming to confer the right to self-perceived gender identity, which is also enshrined in the National Legal Services Authority (NALSA) vs. Union of India judgement, but continuously neglecting this right thereby going against both a Supreme Court judgement and its own statement.
  2. This manifested once again in Rule 4 of the first draft of Rules which required a psychologist’s report— while paradoxically insisting that it requires “no medical examination”— as part of the application process. This requirement was removed from the recent draft of the Rules after backlash.
  3. Also, as stated in the Act, it is the District Magistrate who will determine the final “correctness” of the application, essentially stripping transgender people of any supposed right to self determination. It is worth noting that this places the District Magistrate, an executive figure, in a judicial position, one of ‘judging’ the ‘authenticity’ of a person’s gender identity.
  4. The above mentioned application will only provide a Certificate of Identity that states a person’s gender identity as transgender. To be able to apply for a revised Certificate of Identity to change one’s gender to male/female as per Rule 6, a person must undergo gender reassignment surgery and on top of that provide a certificate stating this from the Medical Superintendent or Chief Medical Officer from the medical institution which facilitates the surgery.
  5. This is problematic for a large multitude of reasons, including but not limited to: many transgender people not feeling the need for medical or surgical intervention, the policing of transgender people’s identity as only being ‘valid’ if they undergo surgery, and the sky-high costs of surgery contrasted with large numbers of transgender people living in unsupportive environments and/or being unable to finance their surgery.
  6. The right to self-identification continues to be blatantly violated in Rule 8, under which a District Magistrate can reject an application, following which the applicant has a right to appeal the rejection only within 60 days of intimation of the same, as stated in Rule 9.
  7. The right to self-determination was also thrown out the window when the first draft Rules imposed a penalty on “false” applications, once again referring to the arbitrary power of the District Magistrate. This has also been removed following strongly negative reactions.

It is important to compare the two versions of the Rules despite the second one being arguably better and cognizant of some of the demands made by the citizens and other stakeholders.

The first version of the Rules quite clearly depicted the narrowly cisnormative perspective through which transgender lives are seen by the people in power. Despite the many changes as a result of relentless protests, the Act is nowhere near to truly respecting and empowering transgender people.

The decision to give the final say to the District Magistrate- which some argue made the process harder than it used to be before the Act- and the refusal to provide affirmative action or reservations to ensure representation in positions of authority that transgender people have historically been denied access to.

It also does little to counter discrimination, as is seen most clearly in the punishment of sexual assault and rape being much less than for the rape of a cisgender woman. It advocates for plenty of measures but does pitifully little to ensure or enable these changes.  

History of the Act

The history of the Act is a turbulent one. The 2016 Transgender (Protection of Rights) Bill, was almost immediately slammed by activists, NGOs, other human rights organisations, and citizens, for multiple reasons.

The most derided was the provision to set up a ‘District Screening Committee’ which included the District Magistrate, a chief medical officer and a psychiatrist among others, for the sole purpose of scrutinising a transgender person’s body and identity. It also criminalised organised begging, an activity specifically common among the Hijra community.

The Lower House of the Parliament, the Lok Sabha, rejected all the proposed changes by the parliamentary standing committee along with the demands of the transgender community, and passed the bill with some amendments in 2018. A short-lived victory came in the form of the lapse of the bill due to the 2019 general elections.

However, as soon as the NDA government was re-elected, the bill was reintroduced in the Parliament with some more changes, particularly the removal of the section on District Screening Committees, but was still unsatisfactory.

The full text of this bill was not released when it was approved by the Union Cabinet on July 10, 2019, but on the morning that it was tabled in the Lok Sabha, garnering another consecutive year of protest since it was first introduced.

This is the bill as it exists today, having been passed by the Lok Sabha on August 5, 2019. When the motion to refer it to a select committee failed in the Rajya Sabha, it was passed on November 26, 2019, and received presidential assent on December 5, 2019. Recent developments include a writ petition in the Supreme Court challenging the validity of the Act.

Despite it becoming the law of the land, transgender citizens and activists such as Esvi Anbu Kothazam and Kanmani Ray continue to criticse it and the insidious transphobic thinking that has always guided it.

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February 25, 2021 12:44 PM

Constructing Panopticon: Israeli Surveillance Technology and its Implications for the Palestinians

Jeremy Bentham, an English philosopher and social theorist designed ‘Panopticon’ in the late 18th century. The panopticon is an institutional building which Bentham describes as “a new mode of obtaining power of mind over mind in a quantity hitherto without example”. The structure's central observation tower, placed within a circle of prison cells, allows a watchman to monitor the inmates of the building without the dwellers knowing whether or not they are being watched. Although it is physically impossible for a single watchman to observe all the occupants at once, the fact that the inmates cannot know when they are being watched means that they are motivated to act as though they are being watched at all times. Thus, compelling the inmates to regulate their own behaviour.

Michel Foucoault, a French Philosopher, uses panopticon as a metaphor to explore relations between systems of social control and people in a disciplinary situation. For Foucault, the real danger was not that the individuals are repressed by the social order but the fact that when only certain people or groups of people control knowledge, oppression is a possibility. Contemporary society uses technology for the deployment of panoptic structures ‘invisibly’ throughout society.

This article gives an overview of the massive panopticon that is built and operated by Israel in Occupied Palestine.

Israel’s unaccountable military rule over its Palestinian citizens in east Jeruselum, West Bank and Gaza Strip have kept the Palestinians under constant surveillance and control. As per a report by Amitai Ziv on Haaretz, Israel’s surveillance operation against Palestinians is (as of 2019) “among the largest of its kind in the world. It includes monitoring the media, social media and the population as a whole.”

Among various mechanisms of surveillance, the technological mechanisms of surveillance and control deployed or proposed in the region of Gaza Strip is most empowering to Israel in terms of gathering ‘intelligence’. This includes use of biometric identity cards, Israeli access to Palestinian census data, almost complete access to and control of the telecommunication infrastructure in the Gaza Strip, the ability to track individuals via cell phone, large surveillance zeppelins which monitor the entire electromagnetic spectrum and which can usurp control of these from Palestinian operators (for instance sending text messages to subscribers targeting different demographics) as well as optical surveillance, facial recognition technology, remote controlled and robotic machine gun towers guarding the border that are capable of identifying a target and opening fire automatically—without human intervention.

In the context of occupation, the use of biometric ID cards of Israeli citizens is the sharpest seepage of control technologies.  For a long time, Israel has used a system of differentiated ID cards to distinguish between Jewish and Non-Jewish, citizens and residents of Israel, and citizens and residents of the occupied territories.

These ID cards also have a record of ethnic/religious affiliation of the person, and the ID numbers themselves are coded so as to reflect this information. One’s status of whether they are an Israeli or Palestinian, whether they are a citizen or a resident determines their freedom to travel, their ability to find jobs, and even their ability to get married and avail social benefits.  The Palestinians in East Jerusalem—which was annexed after the 1967 war—are considered as “conditional residents” and not citizens. According to a Human Rights Watch report, a resident of Palestine occupied Israel reported that the Israeli authorities refused to issue birth certificates to his five children, all born in Jerusalem. Other Jerusalem residents without residency status, in their testimonials, described being unable to legally work; obtain social welfare benefits; attend weddings and funerals; or visit gravely ill relatives abroad, for fear Israeli authorities would refuse to allow them to return home.

Another significant technological mechanism is the Facial recognition technology which has found its way into use by Israeli police. Facial recognition system, a globally controversial and scientifically flawed system is being used by the police force in Israel to identify protestors and is also implemented at airports and border crossings.

Israel has also ratcheted its social media surveillance, especially Facebook, Palestinians’ preferred platform. In October 2015, Israeli invasion at the Al-Aqsa Mosque angered several Palestinians. Many teenagers who didn’t belong to military wing or the Palestinian political faction orchestrated the attacks. The Israeli government blamed the social media for instigating the attacks and the military intelligence increased the monitoring of Palestinian social media accounts. Consequently, over 800 Palestinians were arrested for their posts on social media, particularly Facebook. It was later revealed that these arrests were a result of a policing system which uses algorithms to build profiles of supposed Palestinian attackers. This system proctors thousands of Palestinian Facebook accounts sifting for words like shaheed (martyr), Zionist state, Al Quds (Jerusalem), or Al Aqsa. Further, the algorithm identifies a “suspect” based on ‘prediction’ of violence. These targets are marked suspicious and are a potential target for arrest on the grounds of “incitement to violence”. The term incitement refers to all types of resistance to Israeli practices. The Israeli Army declared Military order 1651 in 2010, according to which, anyone who “attempts, orally or otherwise, to influence public opinion in the West Bank area in a manner which may harm public peace or public order” or “publishes words of praise, sympathy or support for a hostile organization, its actions or objectives,” will serve a jail time of 10 years. The order defines this as “incitement”. One notable instance has been the poetry of Dareen Tatour. She is a Palestinian citizen of Israel. She expressed her call to “resist” the occupiers through a poem she posted online in October 2015. The video had less than 300 views. But it resulted in nearly three years of house arrest and five months imprisonment. The Israeli government charged Tatour with inciting violence and terrorism while her poem was a call for a non-violent resistance. This incident is a classic demonstration of how Israel uses vague terminology to criminalize online activity when it serves its discriminatory interests.  

Israel’s military industrial complex is a profound enabler of the digital surveillance of Palestinians. The nation not only implements surveillance and control but also manufactures and exports a massive amount of military and cyber security technologies. A report published by Privacy International—an NGO that investigates government surveillance and companies—in 2016—stated that Israel has about 27 surveillance companies which is the highest per capita in terms of surveillance that any country has in the world.

The Guardian collected testimonies from people who worked in the Israeli Intelligence Corps to understand the big brother surveillance of the Palestinians. One of the testimonies revealed that commoners and even completely innocent people were under the radar of surveillance. The attestor stated “As a soldier in Unit 8200, I collected information on people accused of either attacking Israelis, trying to attack Israelis, desiring to harm Israelis, and considering attacking Israelis. I also collected information on people who were completely innocent, and whose only crime was that they interested the Israeli security system for various reasons. For reasons they had absolutely no way of knowing. All Palestinians are exposed to non-stop monitoring without any legal protection. Junior soldiers can decide when someone is a target for the collection of information. There is no procedure in place to determine whether the violation of the individual’s rights is necessarily justifiable. The notion of rights for Palestinians does not exist at all. Not even as an idea to be disregarded.”

Another testimonial exposed that the data collected was hardly in accordance with the security needs. The testimony stated, “Throughout my service, I discovered that many Israeli initiatives within the Palestinian arena are directed at things that are not related to intelligence. I worked a lot on gathering information on political issues. Some could be seen as related to objectives that serve security needs, such as the suppression of Hamas institutions, while others could not. Some were political objectives that did not even fall within the Israeli consensus, such as strengthening Israel’s stance at the expense of the Palestinian position. Such objectives do not serve the security system but rather agendas of certain politicians. One project in particular, was shocking to many of us as we were exposed to it. The information was almost directly transferred to political players and not to other sections of the security system. This made it clear to me that we were dealing with information that was hardly connected to security needs. We knew the detailed medical conditions of some of our targets, and our goals developed around them. I’m not sure what was done with this information. I felt bad knowing each of their precise problems, and that we would talk and laugh about this information freely. Or, for instance, that we knew exactly who was cheating on their wife, with whom, and how often.”

While hidden and unknown surveillance is prominent, Israel has also imposed explicit panopticon surveillance and restrictions on Palestinians in numerous cases. In the village of Beit Ijza, northwest of Jerusalem, the house of Gharib’s family has been enclosed by a 6-meter-high fence, cutting them off from their olive gardens and rest of the village as Israel claimed ownership of the land surrounding the Gharib family's house and created a West Bank settlement over there. The house was built in 1979 on land the family says has belonged to them from as far back as the Ottoman era. “Ever since Israel occupied the West Bank, Jews have been offering my father to sell the house,” Gharib says. “They even brought him a suitcase of money. He refused.” Now, their every move is filmed as cameras have been set up on the bars of the fence. Along with loss of privacy, the panopticon internalized omniscience prevents the Gharib family from taking radical steps to protect their rights. In Israeli military language this is called an “indicative fence” which is also equipped with sensors.  When the fence was built, the family had to negotiate by phone with the police at the nearby Atarot industrial zone every time they wanted to go out and or they had to get the Red Cross to help out. “Sometimes we waited for several hours for them to come and open it” Gharib said.

Constant surveillance in real life as well as digital space is definitely a critical human rights violation. While the case of Palestinians is unique given the Israeli military occupation, the fight for their rights is global. World leaders, governments, civil societies, social media giants and all internet users have an essential role in the battle for a surveillance and censorship free state.

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