The failings of the Transgender Persons Bill in its current form - Elle India

The failings of the Transgender Persons Bill in its current form

It has been vehemently opposed by the community

BY Sunetra Choudhury | January 15th, 2019

I never really understood the full import of the need for transgender rights to be legislated till I heard 26-year-old Khushi Sheikh’s story. This strikingly beautiful bar dancer, who looks a lot like Aishwarya Rai, was gang-raped by policemen inside a police station in Ajmer in 2012. Khushi, accompanied by other hijras who considered her their guru, had travelled from Mumbai to Ajmer Sharif to visit the shrine that fateful year. They were negotiating with auto drivers when they had an argument with local policemen who then dragged them to the station. There, while her associates were beaten, Khushi was held down and gang-raped. As she cried out for help, one of the cops mocked her saying “Tu ladki asli hai ya nakli, khol ke bata” (I asked you whether they were real and fake; take off your clothes and show me).

The reason why Khushi’s case drove home the struggle of this community of less than four lakh people (who identified as ‘other’ in the 2011 census), is because harassment by police is very common amidst the community. And, while sexual violence took centre stage post the gang-rape of the paramedic in Delhi the same year, Khushi’s case wasn’t even concluded by the police. In fact, the police wanted her to undergo a lie-detector test to corroborate the charges because she wasn’t cis or born woman. They even said that since she wasn’t a natural-born woman, the police could not be tried for raping her! “Eunuchs cannot be raped as they themselves tear their clothes and are always ready and make their bodies available,” was what one police officer told a team of activists who were probing why Khushi’s rapists had not been punished.

Hers isn’t an isolated case. A PUCL report titled Human Rights Violations against Sexuality Minorities in India in 2000 and 2003, as well as one by Onedede on the Human Rights violations of Transgenders in 2014, notes that a chance encounter with law enforcers and the lack of any clear law protecting transgenders leads to rampant sexual attacks on them. Just like the police hauled Khushi to custody for a minor altercation, transgenders are commonly picked up and jailed for various other so-called crimes. And that’s where the abuse is rampant; the human rights body in its 2003 report writes “Jails are custodial institutions where feminine behaviour by men is always at a greater risk of mistreatment by both authorities and inmates. Jails are closed institutions with a strict segregation based on sex. This ensures that male wards in general are highly masculine spaces with no heterosexual contact. The cult of masculinity promoted by the jail environment necessarily entails a targeting of those considered not ‘masculine’ enough.”

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This is what the Supreme Court tried to fix in the National Legal Services Authority vs Union of India, popularly known as the NALSA judgement in 2014. Upholding the rights of a person who self-identifies as transgender, they asked for state and central governments to provide employment and housing schemes. They also asked the government to treat the trans community as a socially and educationally backward community and provide reservation in educational institutions and public appointments to uplift them. 

After this landmark judgement, there was almost a magic moment when, in 2015, the upper house of Parliament came together in a historic first to pass a private member’s bill. DMK MP Tiruchi Siva drafted a bill which came closest to what the Supreme Court had ordered and more importantly, what the community welcomed. It had provisions for separate courts that would punish hate speech towards the community and also suggested a 2% reservation in educational institutes and jobs. Siva’s bill was rejected by the government on the grounds that 2% reservation would take the total amount of quotas to beyond the 50% cap set by the top court. What they left unsaid was that they couldn’t risk this for 0.04% of the population that was really marginalised, but have now given 10% quotas to the upper castes. 

The government then binned this bill and introduced their own in 2016. Unsurprisingly, far from protecting the rights of trans persons in India, the bill in its current form violates them. For instance, it proposes a screening committee to examine and certify individuals–can you imagine the humiliation of appearing in front of a panel with district officials to qualify for your rights? More importantly, what is the yardstick they’d be using? So, this draft violates the Supreme Court’s mandate of looking out for self-determined trans people. The government also junks any provision for reservation and yet rules that begging and sex work will be held as illegal. Communities such as the hijras and transwomen who have traditionally indulged in this have been left with no alternative.

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I started with Khushi’s story because the most tragic aspect of the bill is that this very instrument of empowerment also discriminates against her as a trans rape victim. The draft says that sexual assault against a trans person will fetch a punishment of just 2 years instead of the 7 against a non-trans woman. How can that be equality? The NALSA judgement came in when this government was voted to power; hopefully the government’s last act in the budget session won’t be signing off on a bill that this most marginalised of all communities rejects. If it is serious about sabka saath, sabka vikas, and naari sashaktikaran (women’s empowerment), they can’t let Khushi’s voice, among countless others, go unheard.

Sunetra Choudhury is Political Editor at NDTV and a contributing editor at ELLE India.