Transgenders: Centre must take rights-based approach

Over the last decade, a divergent range of transgender identities have been articulated in transsexual narratives and are acknowledged within our social and cultural framework sans any social policy to capture the specificities of their needs, experience and ground realities. They are incredibly diverse and exist in every culture, religion, caste, creed, etc., as recorded in history. Transgender persons are often identified as male, female, agender, but their identity as transgender faces a unique set of challenges and social stigma. They continue to suffer a disproportionate level of negative attitude and severe forms of discrimination.

While sexual orientation has been an integral aspect of "private life" and it is essentially a private manifestation of the human personality, the nine judges' privacy judgement has made a strong case for the freedom of sexual orientation. The unanimous ruling of the privacy judgement made the Supreme Court revisit the Naz Foundation verdict (2013) by a constitution bench with a view to re-examine Section 377 of IPC, the colonial-era law that criminalises homosexuality. The recent move by the apex court is expected to be a watershed in the history of human rights.

The legislative policies may appear to be neutral but they are often rigid and impose strict gender requirements. Though the government has been clamouring for equal opportunities for all communities, the transgender community is still on the dark side of inclusive growth. In India, the rights of the transgender have started moving from the margins of society to mainstream political and legal discussions only after the SC's judgement in the NALSA case. A comprehensive non-discriminatory law for the transgender community is still elusive though there has been an intense public discourse on the issue. The widespread lack of accurate identity in India deprives them of many public utility services including housing, transport and medical facilities.

The Supreme Court, through the NALSA judgement (2014), embarked on a journey by initiating legal recognition to transgender persons with the creation of a category called "third gender" seeking legitimacy through legislative efforts. The judgement is an identity innovator, leading to a paradigm shift in gender identities. Besides the negative right against discrimination, the apex court ruled that transgender persons are also entitled to some positive rights to make decisions about themselves, and are entitled to participate in community life. The court also directed the government to accord "socially and educationally backward" status to make them beneficiaries of the schemes and policies of affirmative action. Consequently, the Centre conceptualised a bill but much of the narrative collapses when the issues are considered more closely, as the bill reflects a clear move to circumvent the spirit of the apex court's judgements on the subject.

The bill introduced was not sufficiently rooted to the rights-based approach, hence it got referred to the Parliamentary Standing Committee on Social Justice and Empowerment for further deliberations. The standing committee in its report suggested certain amendments in the draft bill which included the definition of "transgender" which is not attuned to global norms. The parliamentary panel report echoes a progressive tone by addressing certain critical issues in the bill, including the controversial Section 377, which criminalises homosexuality, gay marriage, divorce and adoption.

The Union government, however, ignoring the dominant understanding of gender and without considering some illuminating suggestions of the parliamentary panel, is bent on reintroducing the Transgender Persons (protection of rights) Bill with some inconsequential changes. The proposed legislation also seeks to reserve 2% of seats in educational institutions as well as in government jobs. Besides, the formulation of national and state-level commissions for transgender people and the formation of a special transgender rights court, the bill also takes care of the rights of a transgender child for home and imposes conditions for foster care, prescribes punishment for transgender-related hate crimes, which are some of the progressive clauses in the government's bill.

Despite the fact that the bill is riddled with many deficiencies, it is a benevolent social legislation with a welfarist tone and approach. But it is incumbent upon the government to adopt an inclusive approach towards this neglected community and come up with the best law possible. The standing committee has gone much beyond rights and welfare of the transgender by making attempts to redefine many terms contained in the bill. The wrong assumption of biological determinism and the proposed national council for transgender persons, which is merely an advisory body sans any teeth, in terms of enforcement power, are some of the major flaws in the bill that can be bettered.

State-level initiatives

The need for mapping the transgendered work in order to formulate a robust policy with an inclusive approach is the sine qua non for the transgender community. There has been a decent move transcending rhetoric at the state level. Tamil Nadu, Karnataka and Odisha have rolled out the most progressive developmental policies for the transgender community. Recently, the University Grant Commission (UGC), vide its circular, mandated extension of affirmative action to transgender students to get them acclimatised without facing humiliation, fear or stigma, including creation of transgender-friendly infrastructure and a sensitised atmosphere on campuses.

It is heartening to note that, during the last decade, the views of people have widened dramatically, crossing the traditional gender boundary. India needs to harmonise its domestic laws to reflect the progressive ideas on this subject. Cultural and religious norms must not impede a supportive and inclusive legislation considering the commands of social justice as enshrined in our Constitution. The NALSA judgement, Ram Singh judgement and the report of the "expert committee on transgender" must be the guiding force for the proposed legislation or any transgender-friendly social policy framework.

(The writer is an advocate, Supreme Court of India)