Problems with the NALSA judgment
Brief- Transgender Persons bill, 2016 and wc40012
A lot of the confusion has actually arisen from the much-hailed NALSA judgment. Even as the mainstream press and civil society was celebrating the judgment, many transgender commentators were pointing out its inherent problems and contradictions.
The fact that transgender is an umbrella term for people whose gender identity and/or expression is different from the gender assigned to them at birth, and specifically in the case of India, may used to describe a variety of identities, such as kothi, transman, transwoman, hijra, aravani, genderqueer, etc. is not clearly outlined in the judgment.
A comprehensive list of responses by commentators and collectives has been posted by Orinam. In one of them, Gee Imaan Semmalar offers in-depth critical analysis of the text of the judgment, and its possible implications. He points out that the judgment, which he calls “confused and confusing,” conflates a number of transgender identities, for example referring to all hijras as ‘third gender’.
Semmalar points out that the judgment also pathologises transgender people, does not address issues faced by transmen and repeatedly uses offensive terms like ‘eunuch’, a word which has been used to criminalise transgender communities.
In this piece, Semmalar predicted a lot of the problems of conceptualisation as well as implementation that are now apparent with the draft transgender rights bill, such as the issue of certification or reservations:
“To avail benefits like OBC reservation in jobs and education, would it be compulsory for trans women to get third gender identities? The process is not clear and neither is whether they have a choice. (…) What does a blanket OBC reservation mean to a community that has a large number of dalit trans people? An unwarranted promotion? What does an OBC status mean to internal hierarchies?”
He also argues that it is not clear from the NALSA judgment whether sex reassignment surgery would be necessary for gender identity to be legitimised by the state.
In a written critique of the NALSA judgment, Dutta also points out that the judgment is far from clear on its stance on the recognition of gender identity. “At one point it cites the Argentina model which allows for self-identification without requiring medical certification, a model which has been lauded by many trans activists. Yet at other points it seems to suggest that ‘psychological tests’ would be necessary, which is potentially very problematic given the constraints of how diagnosis of gender dysphoria works in psychiatry and medicine,” writes Dutta.
The road ahead
The MSJE has not yet uploaded a revised version of the draft bill onto its website, so it is unclear whether they have accepted any of the numerous suggestions given by transgender rights collectives.
Another concrete example of the huge lack of political will on the issue is the fact that not a single ministry sent in its comments on the draft bill during a process of inter-ministerial consultation. A senior official of the Ministry of Social Justice said, “But even after the passage of 15 days (the timeline on inter-ministerial consultation), the concerned ministries have not sent their comments, following which it was sent to the Legislative Department of the Law Ministry for finalising the Bill so that it can be sent to the Cabinet for approval.”
Meanwhile, transgender people continue to be effectively criminalised by the Indian state, over two years after the Supreme Court judgment that at the very least attempted to look at gender beyond the stultifying and violent binary of ‘male’ and ‘female’, and to address transgender people who identify at different points in the gender spectrum.
Mogli says, “The continued criminalisation of begging and sex work as traditional sources of livelihood for transgender and hijra communities allows the police to further victimise a highly marginalised and vulnerable population. There are enough and more instances of custodial sexual and physical torture and violence against transgender people. In the cases of custodial torture and sexual violence by the police that we complained against, no departmental action was initiated.”
“The criminalisation of begging is draconian and posited on the flawed classist approach of ‘garibon ko hatao’ (remove the poor) instead of ‘garibi hatao’ (remove poverty). The criminalisation of begging adversely and predominantly affects the poor just for being poor,” she adds.
Abhina Aher, transgender activist and national programme manager with the India HIV/AIDS Alliance says: “Things have moved very, very slowly by the government, and we are still struggling for basic things. There is immense violence against transgender people everyday. As for employment in the private sector, transpeople are facing a Catch-22 situation, where employers are perhaps not ostensibly transphobic, but expect qualifications and experience that most don’t have access to. The Prime Minister is talking about skill development programmes, I think there should be a specific skill development programme for transpeople. It shouldn’t be tokenistic, like the bar dancers in Maharashtra who were made to make agarbattis. Economic disempowerment and residential issues are also huge concerns.”
Padmashali says, “We are asking for identity, employment, education, recognition and dignity. We want human rights first and everything else next.”
As Dutta argues, despite its problems, the NALSA judgment “put in a strong pitch for two very positive things – the self-determination of gender, without insistence of gatekeeping or certification through surgery or hormones, and affirmative action for transpeople. At least it attempted to understand transgender identities in a relatively broad and intersectional fashion, as opposed to one or two identities. However, the Ministry of Social Justice has had a much more limited and problematic approach overall.”
Roy adds, “People are getting beaten at home for being transgender. They are getting assaulted and ridiculed on the street. If I walk into the police station after being attacked, it is I who will be criminalised by the police officers. Trans sex workers are routinely harassed and beaten up by the police. Trans voters are being ridiculed when they are going to vote. Our gender identity is still not accepted, for all practical purposes. Leave alone human rights, people don’t even seem to see transgender people as human beings.”
Gaps in implementation
Transgender activist Vyjayanti Vasanta Mogli agrees. “Access to education and consequently to employment continue to evade the transgender community. Transpeople continue to face the violation of their right to life, facing unreported and unregistered hate crimes. There is very poor access to health and medical care, and many transpeople continue to be pathologised as having ‘gender identity disorder’ due to inaction by the Medical Council of India,” Mogli told The Wire.
Akkai Padmashali, transwoman and the co-founder of organisation Ondede said, “I’m thankful to the Supreme Court, which delivered a judgment based on constitutional equality, and spoke about rights. They took the issue very seriously. But they directed the governments to develop a policy, and I feel that the states largely have failed to do this.”
This is despite the fact that the NALSA judgment explicitly asked an expert committee on transgender rights which had already been constituted by the Central Government to examine its recommendations based on the legal declarations made in the NALSA judgment, and implement them within six months.
Part of the delay can be attributed to what transpired after the NALSA judgment was passed. In September 2014, the Ministry of Social Justice and Empowerment (MSJE) asked the Supreme Court of India to clarify certain aspects of the NALSA ruling. According to the ICJ report, these included clarifying “which groups fall within the ambit of ‘transgender’ persons for the purposes of implementing the NALSA judgment” and “what classification and procedure, given existing frameworks, should be followed while designing affirmative action policies for transgender persons in public institutions.”
The MSJE also asked whether the six-month time limit for implementation could be extended, arguing that the recommendations were too broad to be implemented so swiftly. Unfortunately, the Supreme Court has still not responded to the ministry on this matter.
Activists are now saying that the delay has been used by state governments to stall action. Laxmi Narayan Tripathi, transgender activist and one of the original petitioners in the NALSA judgment said, “There may be a pending issue of clarification in the court, but I don’t understand why that has to stop policy-level decisions. That’s the excuse they’re giving us at the state-level, which is obnoxious. It is sad that the governments are waiting for petty things when the community has been facing discrimination and ostracisation for hundreds of years.”
The two bills
Meanwhile, MP Tiruchi Siva introduced a private member’s bill – the Rights of Transgender Persons bill – in the Rajya Sabha, which was unanimously passed in April 2015. As the ICJ paper says, “The structure and substance of the Bill draws heavily from the NALSA judgment. The Bill’s broad definition of the term transgender relies on the judgment’s call for inclusiveness. The different rights recognised and given protection under the Bill include the right to equality, life, free speech, community, integrity, family, along with the right to be free from torture and other abuse.” Siva’s bill is yet to be passed in the Lok Sabha.
Then, in late 2015, the MSJE published a draft bill of the same name on its website with what activists say includes a number of problematic changes. “The gatekeeping of transgender identities is facilitated and institutionalised by the ministry in its bill,” says Dutta, referring to the provision that says a state-level authority will issue a certificate that a person is transgender.
“Say a transgender person wants to file a case against perpetrators of hate crime, assault or discrimination: will they then have to first obtain a certificate from the state proving that they are trans? If one already has other ID cards saying ‘other’ or ‘trans’, would one still need this certificate?” Arguing that this manner of legislating identity is extremely restrictive, Dutta asks what would happen if a transperson wanted a male or female ID card, instead of one that identifies them as third gender.
Although the draft bill says that transpeople will be given OBC status, Dutta points out that it is also confusing on the matter of affirmative action. “The MSJE bill takes away incentives for private sector reservations, which the Tiruchi Siva bill had included. It also does not specify how reservations will be allocated. Obviously transpeople can also be dalit, so do they get two sets of reservations? How about OBC transpeople: do they not get anything new? It is highly likely that a cisgender OBC person would be chosen over a transgender OBC person for most posts,” says Dutta.
Mogli says, “The government’s bill has altogether deleted the section of the private member’s bill that gave transgender people recourse to the Executive Magistrate apart from the police. Also, there is no reservation in the government’s bill for education, but there is one for employment. How will anyone access employment without access to education?”
Transgender activist Raina Roy, too, takes exception to the provision for the formation of state welfare boards to give out transgender identification. “We need to understand the consequences of this kind of gatekeeping very thoroughly. It is bound to include a few, and is likely to exclude a majority of people.” On this matter, Mogli asks, “Would women be alright with the Women’s Commission being given the power to reject their womanhood?”
In its response to the draft bill, the Telangana Hijra Intersex Samiti tackles precisely this issue, demanding that the bill be amended to clearly allocate 2% reservations for transpeople in every government establishment. “When it comes to the issue of reservations, we as a community would like a clearly demarcated internal reservation quota based on gender – within the SC/ST or OBC categories depending on whether the transgender/intersex individual is born SC/ST or not, respectively,” reads the text.
Another collective, Sampoorna, asks for the inclusion of intersex people in the scope of the bill: “All intersex people face acute issues like lack of access to healthcare, education, employment and face violence, stigma and discrimination at multiple levels. Moreover, there are people with intersex variations who also identify as transgender.” Recommendations were also sent to the Ministry by a group of activists with a special focus on transmasculine communities.
Activists have also criticised the manner in which the bill has been drafted by the MSJE, saying that the process has been largely undemocratic and non-transparent. When the ministry made an updated version of the draft bill available on their website in January 2016, they asked for responses to be sent via email within a short time.
After transgender rights collectives across the country protested, the deadline was extended by another ten days, but remained restricted to people who could read English and access the Internet, leaving a majority of people out of the conversation.
Both Dutta and Padmashali told The Wire that the subsequent in-person consultation held in New Delhi was also not nearly as inclusive as they feel it should have been. “How many working class, non-English speaking transpeople have gone through this bill?” asks Padmashali.
Another huge problem, one that is central to the exercise, says Padmashali, is the fact that parliamentarians are not sensitised or educated about transgender issues and rights. “I went to the New Delhi consultation and asked some senior ministers and bureaucrats: ‘what is transgender?’ None of them had any idea. Our political leaders simply don’t understand how diverse transgender communities are, and without awareness and education, how can they make a policy for us?”
Roy feels that a change in the law is not enough given the level of sensitisation that is required among the people who are required to implement the law, from officers in lower courts, to lawyers and the police force. “Even if the judgment recognises transgender people, society is still transphobic and patriarchal. It is the government’s responsibility to properly sensitise people, otherwise it is very difficult and painful for us to avail things that should be simple, like an ID change. Advocacy is required at every level,” she says.
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In April 2015, when the Rajya Sabha passed a private member’s Bill protecting and providing rights for transgender persons, it looked like a welcome anniversary celebration of the landmark NALSA judgment, or the National Legal Services Authority vs. Union of India judgment.
The judgment gave broad directives to the central and state governments on affirmative action, public health, social welfare and other services to be made available for transgender people.
Where the Supreme Court’s decision had laid out a charter of possibilities for transgender rights in the country, this new Bill, drafted by the office of MP Tiruchi Siva, began to concretise the rights framework.
It was an unwieldy draft with a number of loopholes, but at the very least, it served as a crucial initiation of a much needed conversation.
This dialogue continued in December 2015 when the social justice and empowerment ministry made available its own draft Bill. They took the original Bill as a template and made some crucial additions, such as including a right to self-identification and a provision of reservation for transgender persons under the Other Backward Classes category. Most importantly, the ministry also actively solicited comments from civil society on the draft.
The ministry’s call was followed by numerous civil society consultations in the limited time that was provided and by the submission of a number of significantly detailed comment documents.
What the subsequent conversations were and what transpired within the halls of the ministry is unclear. What we know for sure is that the result, The Transgender Persons (Protection of Rights) Bill 2016, which was recently approved by the cabinet is an utter travesty that threatens to strip away the core of the NALSA judgment.
Flawed understanding of transgender identity
The biggest shock comes towards the beginning in the definition section of the Bill. One of the most significant aspects of the NALSA judgment was its expansive understanding of the transgender identity by how it embraced individuals who wanted to traverse the male-female identification binary and those who wanted to identify outside of it.
The former version of the transgender Bill honoured this understanding through a broad definition that included those who identified themselves by a gender other than the one assigned to them at birth. That definition affirmed the right of a transgender person to have the option of choosing to identify themselves either as a “man”, “woman” or “transgender”.
The current Bill completely eliminates the option of identification as either male or female. On top of it, the Bill reinforces injurious stereotypes about transgender persons as being part male and part female.
According to the draft, a transgender person is one who is:
(a) neither wholly female nor wholly male; or
(b) a combination of female or male or
(c) neither female not male.
Even though the NALSA judgment has remained far from being ideally implemented, the principle of self-identification and its broad understanding of gender has opened a space for transgender persons to obtain documents that identify them by the gender of their choice. With this provision, that space stands to be firmly shut.
Chapter three of the Bill goes on to provide a mechanism for the recognition of identity. This segment at least has the virtue of outlining a seemingly clear process. A transgender person may apply for a certificate of identity to the district magistrate, who will then refer the application to a district screening committee, which will issue a certificate of identity to the person.
This certificate will then be used as the basis for recording gender in all official documents and will be the basis for conferral of rights as a transgender person.
The basis for this provision comes from the report of an expert committee constituted by the social justice ministry in 2013. The issue here is that providing for such an onerous procedure stands in violation of the self-identification principle. It is a mechanism that has been strongly contested in various civil society suggestions submitted to the ministry.
Transgender groups have argued that such a certificate could be used for the specific process of channeling entitlement to individuals. However, to make it the very basis for otherwise recognising transgender identity in any given document again strikes at the heart of NALSA.
Moving to the question of recognition of discrimination, the Bill once again falls short. The single-section chapter on discrimination forbids discriminatory treatment across a number of spaces, including educational institutions, healthcare services and employment. What it fails to do, however, is provide a definition of discrimination to begin with.
The former draft of the Bill did in fact have such a definition. It understood discrimination as a distinction, exclusion or restriction on the basis of gender identity, which had the purpose or effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an equal basis with others, and also included denial of reasonable accommodation.
Such an understanding of discrimination would provide a guide to effectively interpreting the duties against discrimination, which otherwise stand as hollow admonishments.
Rendering them further hollow is the truly baffling lack of enforcement provisions in this Bill. This is a problem that has plagued earlier iterations of the law as well and even constant advocacy from civil society on this front seems to have left no mark on the government.
There is simply no punitive mechanism in place as far as potential violation of the duty against discrimination is concerned. There do, however, exist a number of offences correlated with penalties that don’t represent community needs. For instance, the Bill criminalises enticing a transgender person to indulge in the act of begging.
This not only ignores the ground reality that begging is one of the few income generating options available to a large number of transpersons, but provides another avenue for the misuse of the law. There have been a number of instances where transgender individuals have been disproportionately targeted under the general law related to beggary.
There are a number of other omissions – the provision of reservations for transgender persons – which were promised by NALSA and appeared in the former draft of the Bill, but have now disappeared.
A massive bureaucratic apparatus in the form of a National Council for Transgender Persons has been created, but has also been rendered toothless without any significant powers. Male pronouns are used instead of the language of gender inclusiveness that a law of this nature would at the very least warrant.
As far as civil society is concerned, the only suitable reaction to this proposed law would be to greet it with contempt – the very sentiment that it seems to have been drafted with.
Danish Sheikh is a lawyer based in Delhi.
10 THINGS YOU NEED TO KNOW ABOUT THE TRANSGENDER BILL 2016
The Union Cabinet approved the Transgender Persons (Protection of Rights) Bill 2016 for introduction in Parliament, and this Bill is expected to bring social, educational and economic empowerment to the transgender community. To a community that has been ostracised and discriminated against for so long, this Bill could mean a chance to live a life of dignity and equality.
Here are a few points to help get a better understanding of the provisions in the Bill:
The Bill makes it illegal to force a transgender person to leave residence or village, remove their clothes and parade them naked, force them into begging or any kind of bonded labour. These acts will be punishable with up to two years of imprisonment, along with a fine and also asks for amendments in the law to cover cases of sexual assault on transgender persons.
The Bill also criminalises denying a transgender person access to any public place and causing them any physical or mental harm within and outside the home.
It guarantees OBC status to all transgenders not born as SC or ST, and entitles them to reservation under the respective categories.
The Bill identifies ‘Transgender’ as the third gender and gives a transgender person the freedom to identify as ‘man’, ‘woman’ or ‘transgender’, independent of surgery/hormones. They cannot be referred to as the ‘other’ gender or as ‘others’, but only as transgenders. A certificate of identity as a transgender needs to be issued by a state level authority and this certificate should be acceptable as gender identity for any official document like passport, aashar card, etc.
It also ensures that transgender persons or transgender children enjoy the right to equality, all human rights, right to life and dignity and personal liberty as guaranteed by the Constitution of India.
All government institution shall provide inclusive education and shall not discriminate against any transgender student and also provide transgender students with scholarship / entitlements, free-waiver, textbooks, hostel accommodations, other facilities and subsidized rates. Additionally, all educational institutions need to have an anti-discrimination cell to monitor discrimination against transgender students.
The government shall also set up rehabilitation and welfare programmes, information centres, sensitization programmes, etc. for transgender persons and provide necessary orientations to sensitize people in educational institutions and elsewhere.
The Bill instructs law the police to provide every assistance under the law to an aggrieved transgender person, and also to put the person in touch with the nearest organisation for rehabilitation of aggrieved transgender persons.
The Bill instructs the government to support and facilitate employment of transgender persons, especially for vocational training and self-employment, provide loans, and to ensure that there is no discrimination against transgender person at workplaces.
Under the provisions in this Bill, transgender persons shall also have equal rights and access to a cultural life, leisure and recreational activities.
The Transgender Persons (Protection of Rights) Bill aims at ensuring that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them for so long - right to identify as a member of our community and as equals. The Bill also instructs state mechanisms to include all possible provisions to ensure that no transgender person faces discrimination in India because of their gender identity.
Jaago Re believes that this is an iconic step by the government of India towards ensuring an equal, unbiased and awakened society. Now it remains up to us to take this vision from the government to fruition.
- The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male. In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.
- A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.
- The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas.Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee. The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
- Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.
Key Issues and Analysis
- The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution. However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
- The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity. However, it does not provide for the enforcement of such a right. A District Screening Committee would issue a certificate of identity to recognise transgender persons.
- The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India.
- The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons. However, these terms have not been defined.
- Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’. It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.
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