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India’s new transgender rights bill is moving in the wrong direction

The Indian government is currently in the process of passing a piece of legislation that would drastically affect the lives of trans and gender diverse people in the country. The Transgender Persons Bill was passed by India’s lower house, the Lok Sabha, on Monday 17th December 2018 in spite of multiple protests by the community against the law. There are multiple issues with the Bill including how it defines who a trans person is, the medicalised process of gender recognition and the impact it will have on the livelihoods of trans people.

The Bill originally defined a trans person as someone who doesn’t identify with the gender assigned at their birth and who is neither “fully” male or female, a “combination” of both or neither. After outrage from the community, this has thankfully been amended but the current definition is still worrying. Instead of simply using “someone who doesn’t identify with the gender assigned at their birth,” the Bill lists multiple identities such as trans men and trans women, intersex and genderqueer people and people with socio-cultural identities such as hijra. The danger is that this could be interpreted to protect only those identities mentioned specifically, rather than being taken to be inclusive of all gender diverse people.

This definition is not the only problematic part of the Bill. Although it introduces a method for legal recognition of a change of gender, the pathway it would provide is very medicalised and sets up a two-tier system that prioritises people who have medically transitioned and undergone bottom surgery. For those who cannot provide evidence that they have had bottom surgery, their application to change their legal gender would go before a screening committee, similar to the Gender Recognition Panels that we are currently trying to reform in the UK.

Additionally, only people who have had bottom surgery could be recognised as male or female. If you were forced to submit your application to the screening panel, you would be recognised in a separate third category. This contravenes both current thinking and a 2014 Indian Supreme Court Judgement that trans people should have the right to self identify. A pathway for legal recognition should respect people’s autonomy while including a legal category of gender beyond the binary choices of male and female. While the Bill does include legal recognition outside of the binary, it enforces a dated and essentialist view of gender that would refuse to recognise many trans men and trans women as their authentic selves. It also puts a cost barrier in the way of many people who cannot afford surgery or lack medical insurance that would cover it, disproportionately affecting the most impoverished people in the community.

It is doubtful that many people would have the option of bypassing the screening panel pathway. The majority of trans and gender diverse people in India support themselves by begging as they are unable to find employment due to discrimination in society and the workplace. It is extremely worrying that the Bill will in fact ban begging specifically by trans and gender diverse people but it will not introduce any employment protections. If people are still facing rampant discrimination that stops them from finding work and they cannot support themselves as they currently are, by begging, how will they survive? This is why many are calling the Bill and this section in particular a death sentence for many in the community.

The LGBTQ+ community in India won a tremendous victory in 2018 with the decriminalisation of homosexuality. But as often happens, trans people are at risk of being left behind. The Bill has not become law yet and protests continue to be held against it, as they have been for over a year. There have already been breakthroughs, such as the changing of the first draft of the Bill’s definition of a trans person. We hope that this triumphant trend continues in 2019 so that trans and gender diverse people in India are granted the protection they deserve and a pathway of legal recognition that respects their dignity.

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