The Transgender Persons Bill 2018 discriminates against the very people whose rights it means to restore.
In 2008, Laurie Shrage, American political and moral philosopher, joined a few critical thinkers in asking, “Does the government need to know your sex?”
Just as people have succeeded in transforming how governments manage each person’s racial profile (race, for instance, rarely appears on a birth certificate or a passport), Shrage argued, “there are equally weighty reasons for initiating change in regard to how secular, democratic governments handle information about a person’s sex.”
Like in matters of race, the privileged, i.e. the cisgender people, don’t worry about this, but for transgender individuals, sex and gender determine access to rights, privileges, opportunities and self-determination. Countries around the world are therefore wrestling with the question of “attributing” gender to those who have gender dysphoria, an overwhelming feeling of belonging to the other sex.
Ideally, governments should have no role to play, nor stand in the way of people choosing or rejecting a gender or sexual identity. As the government collects taxes from each citizen, it should treat people the same, regardless of their gender or sexual orientation. Yet it suppresses equality, discriminates and causes oppression and marginalisation. “When the government does not permit individuals to control the sex designation provided on their official documents,” Shrage writes, “it creates unnecessary social burdens for people with unconventional sex and gender identities, and jeopardizes their full participation in society.”
The fears have been long-felt but recently accentuated as the Lok Sabha passed “The Transgender Persons (Protection of Rights) Bill, 2018”. The Bill, if also passed by the Rajya Sabha, will require a transgender person to make an application to the District Magistrate “for issuing a certificate of identity”. A review by five-member District Screening Committee with a medical officer and psychiatrist on-board will then follow to certify whether a person is transgender or not.
While one can argue that perhaps the way forward is to stop a government from prioritizing sex over other personal identifiers, lived truths like lived genders are different. Some possible reasons why the Indian government might need to know your sex are for the purposes of personal identity and security; to provide sex-based privileges, to enforce laws prohibiting sex-discrimination or sexual crimes, or for medical care. The pipe dream, however, is that we take a nuanced view of gender for a population where, as Shrage has argued, anatomical, biological gender is used for medical care and by extension, law enforcement, and self-identified sex for psychiatric purposes.
Still, the despairing thought of transgender people snaking India’s bureaucracy to explain their gender and sexual orientation asks for an immediate, implementable solution. The most agreed upon is ‘self-identification’ if not the nuanced view of gender. Around the world, Argentina and Denmark are two of the very few countries known to have progressive laws towards gender identification. Argentina’s liberal approach, for instance, allows people to alter their gender on official documents without approvals from doctors, hormonal treatments or surgeries. In 2014, the Supreme Court of India too, recognised the transgender people as the “third gender” and clarified that “gender identity refers to an individual’s ‘self-identification’ as a man, woman, transgender or other identified category”. Self-identification means that it’s not the biological test that has to be applied but the “psychological test” where “thinking of transsexual has to be given primacy than binary notion of gender of that person.”
In recognising gender based on self-determination and not medical intervention, the Supreme Court judgment and similar laws in Argentina set right what is wrong with the trans policy almost everywhere else in the world. The current Bill, however, reverses it. It harms transgenders persons much more by wanting to interfere in this crucial self-determination of gender. What’s worse is that the Government is trying to get away with this act of coercion by inserting populist measures in the Bill such as free hormonal therapy and surgery for transgender persons. Since the government is a healthcare provider in India, promises of free medical care could override consent and set a dangerous precedent.
However, the “certificate of identity” is just one of the many problems with the Bill. The others such as its criminalisation of begging or its insistence that transgender people live at state remand homes or with their families is equally problematic. Not just because of its obvious infringement upon their right of equality or freedom of choice but also because it represents an unclear relationship with others laws in the country. Begging, for instance, has been decriminalised by the Delhi High Court. Even subjecting individuals to invasive medical scrutiny to determine their gender is a direct violation of their privacy—now a fundamental right. When such glaring flaws exist, it’s rarely surprising that the Bill does not even hint at the other civil rights that transgender persons demand such as marriage, civil partnership, adoption and of course, property rights.
The Transgender Persons Bill 2018, discriminates against the very people whose rights it means to restore, and if passed in its current form, it will only compound the misery of transgender persons and continue to persecute and marginalise them.