Transcending the issues of Transgenders

Rushank NG examines the issues of Transgenders in this thought provoking article.

We live in a colorful world where a variety of sizes, shapes, genders, functionalities and of course color, make the world a place we cherish. We admire every creation of nature, but when something is out of kilt with our perception of nature, we find it difficult to accept. Unusual behavior of the human race intrigues us, be it emotional, intellectual, sexual, mental, because we assume they are not normal, not like the ‘rest’ of us, and when it is biological or physical, we are even more intrigued, and often dismissive of these ‘strange’ creatures try to eliminate them from our closed club of ‘human beings’.

Man and woman are the two human genders that have coexisted and complemented each other emotionally, intellectually, physically and sexually since time immemorial. They are the accepted genders, because their respective functionalities are well known to each other and are dependent on each other. But we now know that there is a third gender – a transgender - that also exists and is trying to co-exist with the other two, but is being pushed away in so many different ways, so much so they are forced to live not in the midst of, but on the fringes of society.

We see these transgenders quite often, at bus stands, railway stations, and commercial places but never consider them as ‘us’. We stare at them as if they are a defective production of nature and look down upon them. What we don’t know about them is what hurts us and them – for the two accepted genders tend to be dismissive of, and demeaning to them that puts them in a quandary – How to live and how to make a living if you are not part of the club?.

One question haunts me. If everything in nature is meant to serve a purpose in this world, then how correct are we to develop and sustain biases that hurt, endanger and deny towards these transgenders without knowing the objective of their existence?

Biological basis

There are medical explanations based on biology and psychology that provide scientific basis for their uniqueness. Dr. Sandeep, reputed gynecologist in Mangalore, asserts that it is an issue of hormonal change in the body. During their childhood they psychologically feel and want to behave like a girl. In these situations, they cannot be helped in any way as it is a hormonal change by birth. They might later go into surgery & take hormone injections to develop the feministic body. They will sometimes undergo sex reassignment surgery (SRS) either from male-to-female or female-to-male. Another term for SRS includes sex reconstruction surgery, and more clinical terms such as feminizing genitoplasty or penectomy, orchiectomy, and vaginoplasty are used medically for trans-women, with masculinizing genitoplasty, metoidioplasty or phalloplasty often similarly used for trans-men.

Social Stigma

Sandhya & Nagaveni, transgenders from Bellary, came to Mangalore 15 years ago because they couldn’t live in their hometown due to social apathy and abuse. When they realized their sexual orientation, they left the place. Initially, their parents tried to bring them up like boys, took them to different temples and tried religious methods to prevent them from changing themselves. They say that it is very difficult to lead a life like theirs, but they are left with no choice. Sometimes people scold and abuse them and do not give money while a few pity them and shell out a little. Daily, they have to pay 200 rupees to their Nani (one who is older to them and is like the head of the community) and manage their daily expenses. With tears in their eyes, they express their helplessness and sorrow.

There is a need to see this issue from a social angle. Human rights activist, Narendra Nayak (in a video documentary on transgenders) says that we are now able to see them more organized, and emphasize their transgender identity in public. Governments too are appointing them to the civil services and providing them with facilities earlier open only to the two recognized and accepted genders.. The Supreme Court decision is strong backbone for them, and now they can even avail services, bank loans to establish themselves. More than that, all these developments have given them the courage to face society. “Transgenders have a narrow mind set because of social attitudes towards them. Our Indian society is unique as it has a 16th century mindset in the 21st century, but supreme court decision is in favor of of changing that to a 21st century mindset.. As a humanist, I look up on them as a good friend and I will also stand for them & fight for them & their rights”.

Meanwhile, the police feel that society may consider them a nuisance, because of their behavior, which is unique, but they are helpless, because of their constitutional and mental makeup. “Once I was in civil dress, they approached me and when they got to know that I am police, they kept quiet & ran away. We can’t ask them anything as they don’t have any other option to do to lead their life”, said a police inspector.

Sexual Orientation

The Indian Penal Code, Section 377 states that: “377. Unnatural offences-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. This law is basically for the Lesbian, Gay, Bisexual and Transgender or LGBT community.

Praveen Pinto, a civil advocate in Mangalore opined “this section has a wrong take on intercourse against the order of nature because transgenders are compelled to indulge in sexuality this way and are left with no other choice.” Transgenders (born male) face this problem by birth, wherein they emotionally and psychologically feel like a woman while there are few who also carry physical traits of a woman and with growth, there are hormonal changes and they end up in feminine behavioral patterns. Male by birth but feminine by nature gives them a different personality which the common man feels awkward to even talk about. They are not socially accepted, deprived of education, respect, employment, sometimes even the basic needs and are subjected to humiliation. Hence, they end up in begging and prostitution to earn their sustenance.

Despite being considered a liberal democracy, the country did not recognize he existence of this third gender and tried their best to ignore them, condemning them to a humiliating and miserable life, until the Supreme Court in 2014 recognized them and upheld their rights to a decent life. Now, in pursuance of that judgement, the Central Government was compelled to recognize them and provide them a nondiscriminatory place in society. It is toward this end they have introduced the Transgender Persons (Protection of Rights) Bill 2016 in parliament. This Bill is expected to bring social, educational and economic empowerment to the transgender community, a community that has been ostracised and discriminated against for so long. This Bill could be their life-line and a chance to live a life of dignity and equality.

Transgender Persons (Protection of Rights) Bill 2016

After the Union Cabinet approved the contentious Transgender Persons (Protection of Rights) Bill 2016 for introduction in Parliament, the bill was tabled in the Lok Sabha by Thaawarchand Gehlot, the Minister for Social Justice and Empowerment in August 2016, is set to be re-introduced in the winter / budget session of Parliament in December 2017 / January 2018 after being referred to the standing committee on social justice and empowerment for consultation. There will be no changes to the original bill.

Evolution of transgender legislation

In February 2014, the Supreme Court passed a landmark judgement, paving the way for enshrining the rights of transgenders in law. The apex court deemed that individuals had the right to the self-identification of their sexual orientation. It ruled that the fundamental rights granted by the Constitution are equally applicable to transgenders who constitute the 'third gender'.

The judgement also called for affirmative action in education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. The blueprint for transgender rights legislation draws from the court's directives.

The first effort at framing legislation for the same was made in December 2014 by Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. The Rights of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Mr. Siva. It was unanimously passed in the Upper House but was never debated in the Lok Sabha.

The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgenders, as well as transgender rights courts. These remedial measures to prevent sexual discrimination were done away with when the government drafted The Rights of Transgender Persons Bill, 2015.

Despite these notable omissions, the skeletal framework of the draft Bill borrowed heavily from its predecessor.

What did the standing committee recommend?

In its report on the 2016 draft Bill, the committee draws attention to the inadequate definition of the third gender, which is founded on a heterosexual worldview. It also advocates extending civil rights enjoyed by the citizenry, such as marriage, divorce, and adoption, to encompass the third gender.

Some of the recommendations that find a place in the final draft include the rescue, protection, and rehabilitation of transgenders. Educational institutions have been directed to adopt an inclusive approach that is gender-neutral. The government has also formulated welfare schemes especially targeted at transgenders such as basic medical facilities including sex reassignment surgery. Vocational training programmes are also in the pipeline.

Evolution of transgender legislation

In February 2014, the Supreme Court passed a landmark judgement, paving the way for enshrining the rights of transgenders in law. The apex court deemed that individuals had the right to the self-identification of their sexual orientation. It ruled that the fundamental rights granted by the Constitution are equally applicable to transgenders who constitute the 'third gender'.

The judgement also called for affirmative action in education, primary health care, and that transgenders be identified as beneficiaries of social welfare schemes. The blueprint for transgender rights legislation draws from the court's directives.

The first effort at framing legislation for the same was made in December 2014 by Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. The Rights of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Mr. Siva. It was unanimously passed in the Upper House but was never debated in the Lok Sabha.

The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgenders, as well as transgender rights courts. These remedial measures to prevent sexual discrimination were done away with when the government drafted The Rights of Transgender Persons Bill, 2015.

Despite these notable omissions, the skeletal framework of the draft Bill borrowed heavily from its predecessor. After consultation with legal experts and transgender activists, the 2015 draft Bill was sent to the Law Ministry. It was introduced in the Lok Sabha in August 2016 after considerable revision to the 2015 draft.

Provisions in the current Bill:

The Bill makes it illegal to force a transgender person to leave residence or village, remove their clothes and parade them naked, force them into begging or any kind of bonded labour. These acts will be punishable with up to two years of imprisonment, along with a fine and also asks for amendments in the law to cover cases of sexual assault on transgender persons.

The Bill also criminalises denying a transgender person access to any public place and causing them any physical or mental harm within and outside the home.

It guarantees OBC status to all transgenders not born as SC or ST, and entitles them to reservation under the respective categories.

The Bill identifies ‘Transgender’ as the third gender and gives a transgender person the freedom to identify as ‘man’, ‘woman’ or ‘transgender’, independent of surgery/hormones. They cannot be referred to as the ‘other’ gender or as ‘others’, but only as transgenders. A certificate of identity as a transgender needs to be issued by a state level authority and this certificate should be acceptable as gender identity for any official document like passport, aadhaar card, etc.

It also ensures that transgender persons or transgender children enjoy the right to equality, all human rights, right to life and dignity and personal liberty as guaranteed by the Constitution of India.

All government institution shall provide inclusive education and shall not discriminate against any transgender student and also provide transgender students with scholarship / entitlements, free-waiver, textbooks, hostel accommodations, other facilities and subsidized rates. Additionally, all educational institutions need to have an anti-discrimination cell to monitor discrimination against transgender students.

The government shall also set up rehabilitation and welfare programmes, information centres, sensitization programmes, etc. for transgender persons and provide necessary orientations to sensitize people in educational institutions and elsewhere.

The Bill instructs law the police to provide every assistance under the law to an aggrieved transgender person, and also to put the person in touch with the nearest organisation for rehabilitation of aggrieved transgender persons.

The Bill instructs the government to support and facilitate employment of transgender persons, especially for vocational training and self-employment, provide loans, and to ensure that there is no discrimination against transgender person at workplaces.

Under the provisions in this Bill, transgender persons shall also have equal rights and access to a cultural life, leisure and recreational activities.

The Transgender Persons (Protection of Rights) Bill aims at ensuring that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them for so long - right to identify as a member of our community and as equals. The Bill also instructs state mechanisms to include all possible provisions to ensure that no transgender person faces discrimination in India because of their gender identity.

Transgender community upset?

India's transgender community — which numbers 4.8 million according to data from the latest round of the census — is up in arms, since they believe the legislation meant to safeguard their interests only serves to undermine their right to life and livelihood. The final version of the legislation identifies transgenders as being “partly female or male; or a combination of female and male; or neither female nor male”. This definition which draws a clinical caricature is a departure from the intention of the original Bill to cleanse society of the stigma it placed on transgenders.

Moreover, to be recognised as transgenders, individuals have to submit themselves to a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychiatrist, a social worker, and a member of the transgender community. This is in stark contrast to the 2014 Bill which gives individuals the right to self-identify their sex.

The anti-discriminatory clauses of the Bill are extended to education, health care and social security. The provision of earmarking jobs for transgenders, a central plank of the 2014 Bill, has been lost in translation, with the diluted new draft ditching reservations and espousing equal opportunity in all spheres of life, as a panacea to create equity among the sexes.

The draft is also riddled with internal contradictions. While it has criminalised discrimination on the grounds of sex, it maintains that transgenders are covered under the legislation for inheritance. It must be noted that it is often the families of transgenders who excommunicate them and push them into penury. Instigating transgenders into beggary or leaving their domicile is a punishable offence for which the maximum term is two years.

Grievance redressal has been internalised, with establishments consisting of hundred or more persons mandated to designate a complaint officer to deal with any violation of the Act. This is in lieu of the setting up of central and State transgender rights courts.

However, the ambiguity in the definition of the "third sex" lends itself to misinterpretation. Section 377 of the Indian Penal Code, which has been used to criminalise non-heterosexual sex, draws many transgenders into its net. Non-conformist sexual orientation is scoffed at and transgenders often find themselves at the receiving end of disproportionate attention from law enforcement agencies.

However, the Supreme Court ruling on August 24, 2017, that the Right to Privacy was a fundamental right, and was thereby applicable to the protection of sexual orientation of citizens gave a reprieve to the LGBTQ community.

Inputs from

https://www.jaagore.com/simplify/10-things-you-need-to-know-about-the-transgender-bill-2016
http://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-2016/article21226710.ece


Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Karnatakatoday.com and Karnatakatoday.com does not assume any responsibility or liability for the same.