Self-identification should be the basis for access to benefits and entitlements for transgender persons
Will the long years of waiting to recognise the identity of transgender persons finally end in this winter session of Parliament with the passing of the Transgender Persons (Protection of Rights) Bill 2016?
The community has laid stress on the point that for them, dignity, respect, and access to health care are non-negotiable basic rights. Self-identification should be the sole criterion for gender recognition legally without the need of any other psychological, medical, or “expert” intervention. Self-declared identity should also form the basis for access to social security benefits and entitlements. The community maintains that the basic principle of “nothing about us, without us” must be applied for all trans and hijra rights, health and welfare activities.
The community has rejected the setting up of district screening committees to recognise transgender persons as they say they are not objects or people with a contagious disease who need to be medically screened. Their argument, and rightly so, is that a medical assessment violates their right to self-identification and gender autonomy which are protected under the right to life and personal liberty guaranteed by the Constitution. Many do not want to be labelled as transgender or third gender but instead recognised legally by their self-identified gender of “male” or “female”.
The Kochi Metro example
Will the Bill have provisions to protect them from discrimination? The experience so far has been that many who struggle to access jobs are discriminated against, forcing them to drop out.
For example, in May, when the Kochi Metro Rail Limited formally employed 23 transgender persons, eight of them dropped out after being unable to find suitable accommodation based on the monthly wages they drew (between ₹9,000 and ₹15,000). Many households were unwilling to let out their houses to them. They faced other forms of discrimination too.
Therefore, an effective enforcement mechanism is vital for the adjudication of anti-discrimination claims brought forward by transgender persons.
While in 2014, based on the Census, five million acknowledged their transgender status, activists say their number could be much higher. Over 66% of them live in the rural areas. The Census data also highlighted the low literacy level in the community, just 46% in comparison to the general population’s 74%. In fact there should be reservation to facilitate their admission to schools and appointment in public offices. In 2014, the Supreme Court in National Legal Services Authority v. Union of India pointed out that reservation is one of the time-tested ways of enabling historically disadvantaged populations to join the mainstream.
Stigma and discrimination
But accessing even the rights they already have is not easy. For example, even in an enlightened city such as Mumbai, young transgender persons seeking admission to college approach the transgender group leader, normally a person with clout, who then meets the college principal and, in most cases, secures their admission. Thereafter, the transgender person has to be on “best behaviour” and not stand out as that could compromise the admission.
Hopefully the Bill will provide protection to transgender persons from violence and stigma which is a major factor. Often they are denied passage in public spaces and harmed or injured.
The hijra community, especially those who are a part of the ‘guru-chela’ structure in Hijra gharanas and practise the traditions of “mangti” and “badhai”, are often harassed, detained under begging prohibition laws, and forced into begging homes.
In the case of transgender children, their families, unable to accept their status, subject them to domestic violence, which often compels these children to leave home.
Though several transgender persons have made a mark in the beauty and fashion industry, joined the police force, the academic world and even the Indian Navy, there is need for a comprehensive survey on the socio-economic status of the community. Transgender welfare boards are needed in different States. Transgender persons should take part in the national Census to generate accurate data.
A grey area
Transgender identity is not yet recognised in criminal law, whether as the third gender or as a self-identified male or female. There is also no clarity on the application of gender-specific laws to transgender persons. Section 377 of the Indian Penal Code is applicable to transgender persons (i.e., those who were male at birth). This amounts to double persecution.
Finally, the community wants mental health counselling support and free gender transition surgery facilities in government hospitals. There are other issues that worry transgender persons such as their right to property, adoption, marriage, pension, and care for the old and the disabled. Some of these issues may be resolved when the Bill, taking note of their concerns, is passed. The Bill could be the first big step towards equality and their recognition in the mainstream.
