India’s proposed transgender rights legislation, if it proceeds without critical amendments, could do more harm than good to transgender people, write Danish Sheikh and Sanhita Ambast.
In April 2014, the Supreme Court of India delivered a landmark judgment on transgender rights in the case of National Legal Services Authority v Union of India (the NALSA case). Most significantly, the Court declared legal gender recognition for transgender individuals as a constitutional right. The Supreme Court left the task of translating this commendable principle into practice, through the adoption of implementing legislation, to the government. If its latest efforts are any indication, the government has failed to fulfil this responsibility.
In August this year, the Indian Cabinet approved the Transgender Persons (Protection of Rights) Bill 2016 and introduced it in the Lok Sabha (Lower House of Parliament). Transgender rights activists across the country have criticised the Bill, as currently formulated, for failing to comply with the spirit of the NALSA judgment and introducing provisions that could further marginalise transgender persons.
One specific area of criticism is the Bill’s problematic definition of transgender persons, as well as the process for legal gender recognition it would put in place if enacted. While Section 4 of the Bill in its current draft states that “A transgender person shall have a right to be recognised as such”, Section 2 (i), in turn, defines a transgender person as “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 the person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.”
The most problematic aspect of this formulation is that it does not allow transgender persons to specifically identify as male or female. The Supreme Court in the NALSA judgment was careful to provide this choice, noting that persons whose sense of gender did not match with the gender assigned at birth could identify themselves as male, female or third gender/ transgender. This principle was also captured in a former version of the Bill circulated in 2015, which explicitly stated that: “A transgender person should have the option to choose either ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/ hormones.” However, this language has unfortunately been removed in the present version of the Bill.
Additionally, using language like “wholly male” or “wholly female” to define a transgender person inaccurately conflates gender identity with biological sex. While the second half of the definition set out above speaks to transgender identity, appropriately reformulated, the reference to sex characteristics featured in the first part of that definition would refer to intersex, not transgender individuals. The UN Office of the High Commissioner for Human Rights, for example, refers to intersex people as individuals who are born with sex characteristics that do not fit the typical definition of male or female, including sexual anatomy, reproductive organs and/or chromosome patterns.
Chapter III of the Bill puts in place a process for legal gender recognition: individuals must make an application to the District Magistrate, who will then forward the application to a District Screening Committee set up under the Bill “for the purpose of recognition of transgender persons”. The Screening Committee comprises a medical officer, a social welfare officer, a psychologist or psychiatrist, a representative of the transgender community, and a government representative. The Screening Committee will make a recommendation to the Magistrate about the application, on the basis of which the Magistrate will issue a certificate of identity.
However, the current draft of the Bill does not clarify on what grounds the Screening Committee should issue its recommendation or those on which the Magistrate’s decision is to be made. Nor does the Bill give a timeframe within which the Magistrate must render his or her decision. Furthermore, nowhere does the Bill specify how the applicant can challenge this decision.
Moreover, by granting discretion to the Magistrate and Screening Committee, this process undermines the right of transgender persons to their self-identified gender and is therefore inconsistent with the NALSA decision and international human rights law. Indeed, in the NALSA case, the Supreme Court referred to the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. Of these, principle 3(b) requires states to “Take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity”. The complex, two-tiered bureaucratic process described above – which the Bill as currently formulated proposes – goes against the principle of self-identification that the Supreme Court recognised as paramount.
Furthermore, bureaucratic hurdles, like those prescribed by the Bill, will only add to the existing challenges transgender persons already face. For instance, in interviews with the International Commission of Jurists (ICJ), transgender persons have described the obstacles they are already facing, on a daily basis, in obtaining documents that reflect their self-identified gender. One person told the ICJ she had to wait for seven years for a document to reach her. Others were asked for medical certificates before their new gender identity was recorded. In some parts of India, authorities asked transgender persons to produce additional documents – like residence certificates – which are difficult to obtain for a variety of reasons, before their name or gender could be changed. Similarly, when people applied for passports in some regions, their application often stalled at the police verification stage, because police stated that they did not ‘look like the person who applied’. Many transgender persons also felt that authorities made them the target of judgmental comments or asked them intrusive and intimidating questions or made them otherwise feel uncomfortable during the gender identity recognition process. All of this is happening in India today, even before the procedure envisaged by the Bill is introduced.
Since the NALSA judgment in 2014, India has taken several steps toward protecting the rights of transgender persons. While legislation guaranteeing these rights is essential, in its current form, the Transgender Persons (Protection of Rights) Bill 2016 undermines the NALSA decision and international human rights law, and risks doing more harm than good.