What data says about human rights of transpersons in India — and how the Transgender bill fails to protect them
A study conducted by the National Human Rights Commission shows how out of touch the 2019 Transgender Rights Bill is from the ground reality of human rights violations against transgenders.
In November 2019, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill to widespread opposition from various trans-activists, lawyers and civil society groups. The bill defines a transgender person as “one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.”
Transgenders are one of the most socio-economically backward groups of India, a fact recognised by the historic 2014 NALSA judgement. The judgement recognizes transgenders as the official third gender in India and allows them the right to self-determination. It also asks for transgenders to be extended reservation in educational institutions and public appointments — something that the 2019 bill does not take cognizance of.
In a 2018 study carried out by the National Human Rights Commission (NHRC), transgenders across Delhi and Uttar Pradesh were interviewed to map how the community fares on basic human rights. The community severely lacks access to education, with around 90% of transgenders not holding any college degree. Transgenders are overwhelmingly employed in the informal sector, with none of the trans persons interviewed holding government jobs. 22% of them — the majority — are engaged in ‘badhai’ or blessings, an informal socio-cultural practice widely associated with and conducted by transgenders in India.
The 2019 bill introduces a new caveat to the right to self-determination given under the NALSA judgement. Transgender persons now have to apply to the District Magistrate for a certificate identifying their gender as ‘transgender’. A revised certificate of ‘male’ or ‘female’ can only be obtained if a transgender person undergoes a mandatory sex-reassignment surgery. 98% of the transgender persons interviewed claimed to have faced some sort of discrimination in the society, with 92% facing discrimination in economic activities.
Around 45% of transgenders interviewed are facing poor health and discrimination in healthcare. The rate of HIV prevalence for transgenders is 26 times higher than the national average, largely due to a significant number of transgenders resorting to sex work due to a lack of economic options. Furthermore, sexual offences against transgender persons carry imprisonment of up to 2 years. In contrast, the maximum sentence for sexual violations against a woman in India is life imprisonment. In failing to deal with such legislative discrepancies, the Trans Act clearly discriminated between women and ‘trans-women’, treating them as second-class citizens in the eyes of law.
The study clearly points to a severe lack of sensitivity and understanding of the problems faced by transgender in society and widespread discrimination against them. Multiple trans activists have pointed out how ‘outsourcing the self-determination’ to a third party and the layers of the bureaucratic procedure are bound to create hostile environments for the transgender community in which they do not feel comfortable in coming out. “Certification itself is discrimination. It is humiliation of a human being.”, said Jaya Bachhan, a member of the Rajya Sabha, and one of the many lawmakers who have proposed to send the bill to a select committee for further review.
Post the 2014 NALSA judgement, relevant ministries and governments started taking action to issue ID cards to transgender persons. However, only around 15% of people hold a Voter ID Card or an Aadhar Card issued as transgender, and less than 2% of them hold a PAN card or a driving license. The high illiteracy rate coupled with low levels of income and lack of legal documents severely restricts the ability of transgenders to access different social protections and livelihood promotion schemes.
The Transgender Persons act was visualised as the culmination of the community’s long-standing struggle against discriminatory laws, social practices and unequal infrastructure. However, the act fails to go into the specifics of how affirmative action needs to be structured around the myriad of human rights violations against transgender persons. While the government has asked for feedback on the bill in the case pending against it in the Supreme Court, the response has been severely limited due to lockdown restrictions in the country. At present, the transgender community is looking to halt the feedback process in order to ensure more diverse representation in formulating a response against the 2019 bill.
