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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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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