The Transgender Persons(Protection of Rights) Bill 2016 : IS THIS IT ? (Part i)

Anmol Kaur Bawa

Design Courtesy: Siddhartha Sankar for

Introduce yourself. Go on…elaborate! Easy-peasy right? Telling about yourself, your identity is a sheer cake walk for most,isn’t it ? But what about a person, who is, DEFINED as a ‘transgender person’, it implies a person who is:

(A) neither wholly female nor wholly male; or (B) a combination of female or male; or (C) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes transmen and transwomen, persons with intersex variations and gender-queers. “

Surely in the aforementioned introduction, confusion is inevitable. However unfortunate it is, but that’s how the lawmakers intend to introduce the transgender community in the parliament. The burning question is, Is this sufficient or even close to “simplified” for a layman’s understanding about the laws relating to the society s/he dwells in ?

Seeing the unkempt attitude towards the threshold elements involved in the peculiar community of transgenders, the answer to that question is not in the affirmative.

The loop of episodes :

The transgender Bill 2016 has been a result of the Supreme Court’s verdict in the case of National Legal Services Authority v.s The Union of India (2012), where the court has upheld the right of recognition of Transgenders as the ‘third’ gender and directed the parliament to give appropriate legal stature to the same. During the course of the petition, an expert committee on ‘issues relating to transgender community’ was set up under the aegis of the ministry of social justice and empowerment. The report of the committee was to be submitted to the ministry so that appropriate recommendations and solutions could be deliberated upon. However, the draft bill that has been framed has come across a lot of criticism for its failure to capture the essence of the issue in various spheres.

1. Psychological sex :

For any new addition to the list of statutory definitions declared by the legislature, clarity and objectivity is of utmost importance. The very definition of a ‘transgender’ has been made problematic to comprehend. Not only does it include ancillary terms like ‘transmen’ and ‘transwomen’ which need a definition themselves to define anything before, but also that the social and psychological aspects of “third” gender have not been adequately and directly dealt with. Most of the critics have highlighted that the bill refuses to confront the idea of psychological sex and beats around the bush when it comes to defining what transgendence is precisely. Psychological sex is multifaceted variant of self-identification of genders. It involves the self-reflection of one’s likes and dislikes for self and others in terms of sexuality and a mental make up of this self-reflection which is exhibited in the overt and covert manifestation.

Justice K.S Radhakrishnan in his judgment on the NALSA v.s Union Of India explained :

‘Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.

We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.’

It is however an unfortunate state of affair that the Supreme Court’s judgement of Third Gender recognition has either not been taken cautiously or hasn’t been absorbed in its true spirit while drafting of the bill. Nowhere does the bill attempt to emphasize on the right of gender Identity in light of article 21 ( right to life and personal liberty )and neither does it brief on the link between sexual orientation and gender identity .

2. Gender Identity and Sexual Orientation :

Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.

Whereas, sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homosexuals, bisexuals, heterosexuals, asexuals etc

Hence, we return to our basic question, IS THIS IT?

The bill refers to only ‘transgenders’ but which category of them ? if the indication is towards “third gender” then what about the people who have gone through Sex Re-organisation Surgery (SRS) and switched their sex but have romantic/emotional attraction to the same people belonging to their new sex (homosexuality)? Is biological determination enough to establish transgenderence?,as one born as a male may choose female-oriented lifestyle. The bill remains silent on these questions.

3. Right to self-perceived gender identity v.s section 377 :

Chapter 3 on the Recognition of Identity of Transgender Person, clause 4, sub clause (2) states:

‘A person recognised as transgender under sub-section (1) shall have a right to self perceived gender identity.’ The provision herein recognises the liberty granted by the state to the transgenders to associate themselves to any gender they feel they fit aptly in, which also includes the transgender’s right to choose his/her/their sexual preferences. Does this mean that the bill is camouflaging the liberty to choose homosexual relations among the third gender or SRS subjects within its ambit? No clarification has been provided as to whether right to “sexual orientation” has been incorporated within the purview of the right to self perceived identity. If at all the clause takes into consideration homosexual relations then wouldn’t it be declared at loggerheads with section 377 of the IPC that criminalizes homosexuality under the garb of “unnatural offenses”?

Furthermore, In NALSA v.s Union Of India, the Supreme Court on one hand has declared the rights of third gender while on the other hand has kept the question of decriminalizing homosexuality under examination for long. The bill remains silent on the issue of 377 which may create problems in interpretation and implementation by courts and judges if given a legal assent in future.

Watch out for more problematic aspects of this Bill in the next article…

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