Recently, a bill was introduced in the Lok Sabha to amend the Transgender Persons (Protection of Rights) Act, 2019 [the 2019 Act]. The Rajya Sabha, the upper house, has also passed the contentious Bill.
From a basic reading of the Statement of Objects and Reasons of the Amendment Bill, it appears that there are two primary reasons for introducing the amendment: first, to tighten the definition of “transgender persons” under the Act; and second, to scrap the scheme of penalising offences against transgender persons under the 2019 Act and to introduce in its place offences that were documented during the implementation of the 2019 Act.
The Objects and Reasons of the Amendment further explain that, during the implementation of the 2019 Act, authorities faced difficulties due to the broad definition of “transgender persons.” Ergo, it has been proposed that the definition be modified so that the Act can be streamlined to work only for “those who are in actual need of such protection,” a rationale that directly informs the changes that follow.
In this regard, it is important to note that the definition under the 2019 Act was, in fact, simple. Section 2(k) of the Act defined “transgender persons” as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer, and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
On the other hand, the Amendment seeks to introduce an extremely complicated and technical definition of “transgender person,” which will most certainly only increase the difficulty of implementing the Act; additionally, this new definition excludes a large section of the population that would have been covered under the old definition.
Moreover, significantly, the new definition disregards the possibility of a conflict between “gender assigned at birth” and one’s own conception of gender, which the old definition explicitly included within its fold, and it further excludes anyone who identifies as a transgender person after having undergone Sex Reassignment Surgery or hormone or laser therapy.
In place of a broader, identity-based approach, the new definition provides a list of five sex characteristics—primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, and endogenous hormone production—and, in terms of the Bill, a “transgender person” is someone who has exhibited a variance in at least one such characteristic from normal “male or female development” from birth.
The consequence of this shift is clear: all such persons who self-identify as transgender would now not be able to make the cut, as strict biological considerations have been introduced. While the definition itself already implies the exclusion of self-identification, the Bill shuts the door firmly by introducing a clause stating that it “shall not include, nor shall ever have been so included, persons with different sexual orientations and self-perceived sexual identities.”
This narrowing of scope is accompanied by a restructuring of offences under the Act. Section 18 of the 2019 Act provided four categories of offences against transgender persons—forcing labour upon a transgender person, denying them access to a public place, forcing them to leave a house or village, or physically, mentally, or emotionally abusing a transgender person—all punishable with imprisonment for up to two years.
However, the Statement of Objects and Reasons of the Amendment explains that, during implementation of the 2019 Act, it was found that the offences listed in Section 18 were general in nature and did not include severe offences encountered in the enforcement of the Act; accordingly, the amended Section 18 introduces two classes of additional offences.
First, it makes it an offence to abduct or kidnap an adult or child and subject such a person to mutilation, castration, or chemical or hormonal procedures so as to compel such adult or child to present a transgender identity. It is indisputable that this is a serious offence and cannot go unpunished; however, the manner and occasion in which this offence has been introduced must be carefully noted.
Through this amendment, the Government is attempting to weaponise the 2019 Act, seeking to modify an Act implemented for the welfare of transgender individuals into one that curbs the rights enjoyed by them. The underlying theme of the amendment is that transgender individuals are “created” as a consequence of genital mutilation or castration and that, therefore, the most effective method to protect their rights is to control their numbers.
At the same time, it cannot be argued that castration or genital mutilation does not exist, or that there should be no framework to prohibit such offences. At present, the most potent provision to deal with such acts is “Grievous Hurt,” found in Section 117 of the Bharatiya Nyaya Sanhita, 2023; however, introducing this offence in an Act meant to protect against discrimination towards transgender individuals, and presenting it as a means of protection from discrimination, is egregious.
Transgender individuals face discrimination in many avenues of life, and inserting an amendment expanding the existing scope of discrimination would have been the more appropriate reform to Section 18 of the Act.
The second category of offences further complicates matters by making it an offence to compel a person—whether through “allurement, deception, or inducement”—to dress or present themselves as a transgender person. At the outset, it remains unclear which “style of dressing” the Bill refers to with the expression “to dress, present, or conduct themselves outwardly as a transgender person”; however, even setting aside this ambiguity and focusing on the essence of the provision, it is inarguable that compelling another person to assume a gender identity they do not identify with should not go unpunished.
Yet, the introduction of this offence risks becoming a tool to throttle the expression of any self-proclaimed gender identity other than that which has been conferred by society. Given India’s socio-cultural milieu, the impetus behind many people identifying beyond the gender binary has often been a friend or confidante introducing them to the idea that gender is something one can identify as, rather than something dictated by society, raising the question: is this allurement, and would it fall within inducement?
These concerns become even more pronounced in relation to children. With regard to minors, the Amendment effectively robs them of their right to choose: under the new Section 18, it is an offence to allure a child to “dress, present, or conduct themselves outwardly as a transgender person.” Notably, while in cases involving adults, such allurement must be “against their will,” this qualification is absent in cases involving children, implying that even a willing child could trigger liability under the Act if they receive encouragement or clothing from another person.
In essence, this offence appears to reinforce the age-old dogma that boys must “dress like boys,” and it does so in a manner that extends even to transgender children. Indeed, alluring or inducing a child to dress as a transgender person is an offence regardless of whether the child is transgender or not; therefore, even a child who qualifies as “biological” transgender under the amended definition cannot receive assistance in dressing or identifying as a transgender person.
Taken together, the amendments proposed through this Bill, although portrayed as adding teeth to the existing Act, in fact do the opposite. If enacted, they would push India back by decades and strip from transgender persons whatever little the 2019 Act offered; to portray this weakening exercise as a method of strengthening the framework is egregious. In reality, the amendment appears to weaponise the 2019 Act into a tool to propagate a conservative idea—that one is transgender only if born as one—and its enactment would only add to the Government’s arsenal for moral policing.
-30-
Copyright©Madras Courier, All Rights Reserved. You may share using our article tools. Please don't cut articles from madrascourier.com and redistribute by email, post to the web, mobile phone or social media.Please send in your feed back and comments to [email protected]
