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 4, 2021 5:19 PM

The Plight of the Hazara People of Afghanistan and Pakistan

The Hazara People, who are mostly found in some regions of Afghanistan and Pakistan, are a mixed race community who are one of the most persecuted ethnic groups in the world. Their situation is not getting better even to this date.

Who are the Hazara people?

The term ‘Hazara' was first used in the 16th century in the memoirs of Babur, to describe people in the region towards the west of Kabul, till Gor or Ghazni. The origins of this community remains disputed, although there are three theories to suggest it. According to the first theory, the Hazaras could be of Turko-Mongol ancestry, descendants of Genghis Khan's army which was left behind by him in Afghanistan.

The second theory goes two millennia back, to the Kushan Dynasty, when Bamiyan in Afghanistan was a Buddhist centre. Supporters of this theory claim that the facial structure of the Hazaras is similar to that of the Buddhist murals and statues (later vandalized by the Taliban) in the region. The third and the most widely accepted theory is that they are mixed race. According to this, certain Mongol tribes travelled to modern-day Afghanistan (then Eastern Persia) and then got integrated into the indigenous peoples, because of which the Hazaras still have some Mongoloid features.

They settled in central Afghanistan, where by the 19th century, half of their population had either been killed or exiled.

Hazaras during the British Raj

Amir Abdul Rahman of Afghanistan | Source: Welcome Collections

Their homeland in the central highlands was invaded by the Pashtun Amir Abdul Rehman, known as Afghanistan's ‘Iron Amir' by the British, forcing them to leave their lands and go into exile in Balochistan.

There were already some Hazaras who had started entering British India, searching for labour jobs such as mining. They also came to Quetta, to work in the construction of the Indian railways. But, due to Rehman's ethnic cleansing, they had to leave.

But one interesting fact is that in 1907, British officer Colonel Claude Jacob made a regiment specially for the Hazaras. The Hazaras had got an image of having martial strength, as the British liked to imagine, because of their possible lineage to Genghis Khan.

The remaining Hazaras, who didn’t qualify for the army, used to go for unskilled labour then, because they did not own any agricultural lands in this new country.

In 1935, there was an earthquake in Quetta, which caused many Hazaras to leave the city for other places. This proved to be a blessing in disguise for them as they started doing semi-skilled labour there and were able to become tailors, mechanics and shopkeepers. Even the Second World War proved to be helpful to them as more Hazaras were recruited as soldiers, some even getting a better position like General Musa Khan, who led the Pakistani army during the 1965 war with India.

What is Hazaras' situation today in Pakistan?

A Kid protesting against genocide of Hazaras in Quetta | Source: Hazara-Birar via Wikimedia

Since partition, the Hazaras have remained an underprivileged minority. In Quetta, they are spread in two slums in the east and west of the city. The two areas are called Mari Abad and Hazara Town. Most of their income is remittance payments from Iran, the Gulf, Europe and Australia.

There are thousands of new Hazara migrants in Quetta escaping the terror of the Taliban in Afghanistan. But in Pakistan, they are persecuted and seen as an alien community, because of two reasons—firstly, because they’re Shia (a minority in Sunni dominated Pakistan), and secondly, because of their facial features which look Central Asian. A third reason has a geopolitical context, a belief that the Hazaras might be having Iranian support.

There are around 900,000 Hazara living in Pakistan, yet this is a vulnerable community. For decades, they have been targeted for being different by the extremists through suicide bombings and shootings. There are regular attacks on their mosques, even on festive days such as Eid. The Pakistani authorities' response to the violence against Hazara community has been to build walls blocking streets leading to their areas, or placing military checkpoints along them. Although it makes at least the Hazara areas relatively safer, it traps them inside these areas which are like Ghettos now.

In an article by the BBC, one resident, Haji Mohammed Musa, said, “Yes, violence here has come down, but we can't go anywhere else in the city. We can't do business any more. We're living in a cage.”

And if they do go outside, there are really rare chances of them coming back alive. Hazara people are scared of going out of their area, and don’t even send their family members out for the fear of being attacked.

The number of Hazara students in Quetta's universities outside Mari Abad and Hazara Town, is said to have decreased in recent years. The Hazaras, trapped inside their Ghetto-like towns, are finding other ways to get rid of their frustration by keeping themselves busy in sports. A form of gymnastics, called Parkour, is getting increasingly popular here. The Hazara boys say it gives them “a feeling of freedom” and that they “forget all their worries”.

The people of Mari Abad are not able to meet the other Hazaras living on the other side of Quetta, in the Hazara Town. They can’t travel there without the fear of being shot or killed.

Sipah-e-Sahaba Pakistan and Lashkar-i-Jhangvi are two sectarian extremist groups which have targeted the Hazaras.

People of Hazara diaspora protesting against discrimination in Quetta | Source: hazarapeople.com

Around 70,000 Hazaras have fled, mainly to Australia, while hundreds may have drowned during this perilous sea journey.  Even after settling in Australia, the Australian Hazaras are concerned about the 'Talibanization' of Afghanistan. They also held demonstrations in support of the people of their community who have remained behind.

Hazaras' present situation in Afghanistan

The Hazaras have always been persecuted in the predominantly-Sunni Afghanistan, especially by the Taliban. The worst form of violence started when, on August 8, 1998, the Taliban attacked and captured the Mazar-i-Sharif, which was then the only city controlled by the United Front, which is opposed to the Taliban. Within hours, it had started killing people in a frenzy and literally killed “anything that moved”. There were reports about women and girls, especially in the Hazara neighbourhoods, getting abducted and raped. The killings of Hazara men and boys was mainly done out of revenge by the Taliban for the Hazaras’ failed attempt of attacking them in 1997. Hazara fighters killed thousands of Taliban fighters and prisoners in the north in 1997. When Hazara strongholds fell the following year the regime massacred entire communities in revenge.

The Hazaras are confined to a huge open-air prison in central Afghanistan called Hazarajat. They can’t venture out, as there is fear of being killed.

ISIL in Afghanistan | Source: Najibullah Quraishi and Jamie Doran via Al Jazeera

IS-Khurasan, a group affiliated to the so-called Islamic State, is another terror group in Afghanistan which has also proved to be a threat for the Hazaras. In 2016, at least 80 Hazara people died after dual suicide bombings by IS-Khurasan, during protests which were held for electricity transmission line to be routed through Hazarajat. IS-Khurasan stated that it attacked the Hazaras because of their involvement in the war in Syria. Most of the Hazaras, who happen to be Shias, have been recruited in the Iranian army which is an ally of the Al-Asad government. An IS-Khurasan commander told Reuters, “Unless they (the Hazara Shias) stop going to Syria and stop being slaves of Iran, we will definitely continue such attacks.” Poor Afghan Hazaras residing in Iran are offered Iranian citizenship to fight in Syria. Some are even forced to join as fighters. But, this is just an excuse, as the IS-Khurasan would have attacked the Hazaras even had they not joined the Iranian forces fighting for the Shias, because, just like its parent organisation, ISIS, this organisation sees the Shias as 'infidels' or outsiders who are against Islam and therefore, worthy of death.

There were mass graves of Hazaras who were the victims of the Taliban bloodbath in Bamiyan, Afghanistan. A UN team went there to see those graves in 2002, just after the fall of Taliban.

Hopes from the US

The Hazaras, Hindus, Jewish, and other minorities—especially women of all ethnic and religious groups—in Afghanistan, were relieved that finally their nightmares are over, when the US forces started bombing the Taliban in 2001. Hazaras see the US as their liberator. Their hopes will be destroyed if the US withdraws from Afghanistan without completely finishing up the Taliban.

The situation in several places in Afghanistan has become better, where the Taliban is no more. People are able to attend colleges and schools and have more freedom. But the remaining states still suffer at the hands of the Taliban. There are deep scars still left in the country, which are difficult to heal even if the Taliban fades away.

Hazaras in the Covid-era

In Pakistan, the Hazaras were blamed for bringing the virus in their country. Their movement was restricted and they were targeted time and again for spreading the virus in their country.

They even had to face discrimination at workplaces. Mohammad Aman, a prominent Hazara activist, told Institute of development studies, “Places like Civil Hospital and The State Bank of Pakistan have unofficially asked their employees belonging to the Hazara community, including doctors, not to come to work.”

The Hazaras have been quarantined in their areas, Mari Abad and Hazara Town, and are not allowed to move out. Further, no other Pakistanis except the Hazara Shias are quarantined at airports. There is a belief among the Pakistani people that it’s the Hazaras who are bringing the virus from Iran.

Even after so many decades of persecution and mass killings, nothing much has changed in the situation of the Hazaras. They continue to live a life full of fear and abandonment. They left their homelands in Afghanistan, because the Pashtuns and the Taliban persecuted them. They came to Pakistan, where again, they are persecuted for the same reason. Those who left for Iran, were bullied for their Central Asian ancestry or had to fight in wars. Then the remaining who left for Syria, are now stuck and left to die in the Syrian war. There’s no place called home for the Hazaras.

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