The Union Ministry of Social Justice and Empowerment has decided to junk the recommendations of a parliamentary committee report which was the first ever government document to recognise the rights of transgender persons to partnerships and marriage, so that they were no longer criminalised under IPC Section 377, apart from offering other rights.
The ministry is set to re-introduce its original version of The Transgender Persons (Protection of Rights) Bill, in the next session of Parliament. The Standing Committee on Social Justice and Empowerment, comprising 18 Lok Sabha members and headed by BJP MP Ramesh Bais, tabled its report on the floor of the House in July 2017. The report recommended specific provisions in the ministry’s version of the transgender Bill, to safeguard their rights, protect them against discrimination, and provide quotas in government colleges and jobs.
On whether the recommendations of the panel would be included in a revised version of the Bill, Social Justice Minister Thawaar Chand Gehlot told The Sunday Express, “We will be forwarding our original Bill as it is. Our ministry feels that the Bill made by us is good and there is no need to change it.” Gehlot added that the ministry will try to place the Bill in the Winter Session of Parliament. “It depends on the Parliamentary Affairs Ministry whether to include it in their business. We will try that it comes before this session,” he said.
The parliamentary panel report, hailed as progressive by many within the community, had faulted the government’s Bill for its failure to address several crucial issues. Noting that “Transgender persons remain at risk of criminalisation under Section 377”, it asked that the Bill must recognise their civil rights such as marriage, divorce, adoption, whether under personal or secular laws.
While the August 2017 Supreme Court nine-judge bench Right to Privacy judgment had made strong observations on the need to decriminalise IPC Section 377 (which currently penalises sexual intercourse “against the order of nature”), the matter is still pending consideration before the apex court in a separate case.
The panel’s recommendation was meant to accord legal recognition and protection from Section 377 to, if not all sexual minorities, at least transgender persons whose welfare comes under the Social Justice Ministry. In April 2016, DMK MP Tiruchi Siva’s Bill on transgender rights had become the first private member’s Bill to be passed by the House in 45 years. It was after the passage of his Bill in the Rajya Sabha that the government said that it would table its own version of the Bill, which it did in the Lower House in August 2016. Unlike the private member Bill, the ministry’s Bill had several omissions, including reservations in jobs and education (a Supreme Court directive).
The parliamentary panel, set up to study the Bill, asked for reservations, strong provisions against discrimination, penalties on government officials who subject transgender persons to any kind of violence, skill training to wean them off begging, and separate public toilets for them.
Going beyond rights and welfare, the panel report also addressed the issue of sexual identity. It asked for provisions that provide “penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants.” Most importantly, it redefined several terms in the Bill. To recognise alternative family structures such as adoptions of transgender children by the the Hijra or Aravani communities, it defined family in the Bill as “a group of people related by blood, marriage or by adoption of a transgender person”.
The ministry’s proposed definition of transgender persons as ‘neither wholly male or female, a combination of female or male, neither female nor male” was criticised by the panel as “primitive and based on the underlying assumption of biological determinism” and hence, it said, it should simply be “one whose gender does not match with the gender assigned to that person at birth”.
The parliamentary panel also expressed ‘dismay’ at the proposed National Council for Transgender Persons, being ‘reduced merely to an advisory body’ with no ‘effective enforcement powers’ in the Bill. Census 2011 records the population of ‘others (people who do not identify themselves either as male or female)’ at 4.87 lakh while a 2011 survey by NGO Salvation of Oppressed Eunuchs put their number at 19 lakh.