The New Transgender Bill Pushes India Back In Its Fight For Transgender Rights

Last week a bill was introduced in the Lok Sabha to amend the Transgender Persons (Protection of Rights) Act, 2019 [the 2019 Act]. From a bare reading of the Statement of Objects and Reasons of the Amendment Bill it appears that there are two primary reasons for introducing the amendment. Firstly, to tighten the definition of “transgender persons” under the Act. And secondly, to scrap the scheme of penalising offences against transgender persons under the 2019 Act, and introduce in its place offences that were documented during the implementation of the 2019 Act.

The Objects and Reasons to the Amendment explains that during the implementation of the 2019 Act, the authorities have faced difficulties due to the wide expanse of the existing definition of “transgender persons”. Therefore, modification of the definition is imperative, so that the Act could be streamlined to work only for “those who are in actual need of such protection”.

A Restrictive Definition

The definition under 2019 Act was actually extremely 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 for “transgender person”, which most certainly will only increase the difficulty in the implementation of the Act. Additionally, this new definition excludes a very large section of the population that would have been under the shelter of the old definition. The new definition turns a blind eye to the possibility of a conflict between “gender assigned at birth”, and one's own conception of gender, something that the old definition included within its fold. And finally, the new definition excludes anyone who identifies as transgender persons, after having undergone Sex Reassignment Surgery, or hormone/laser therapy.

While defining a “transgender person”, the new definition provides a list of five sex characteristics (primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, and endogenous hormone production). In terms of the Bill, a “transgender person” is someone who has exhibited a variance in at least one sex characteristic from normal “male or female development”, from their very birth.

Clearly, all such persons, who self-identify as a transgender would now not be able to make the cut, since strict biological considerations have been introduced. While the definition is itself sufficient to imply that it excludes self-identification, the Bill shuts the door firmly on self-identification, by introducing a clause at the end of the definition, stating that it “shall not include, nor shall ever have been so included, persons with different sexual orientations and self-perceived sexual identities”.

Introducing new Offences

Section 18 of the 2019 Act, provided four categories of offences against transgender persons, i.e., forcing labour upon a transgender person, denying them access to a public place, forcing them to leave a house/village, or physically, mentally, or emotionally abusing a transgender person. All of these are offences against transgender persons, and all were punishable with imprisonment up to two years.

The Statement of Object and Reasons to 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 enforcement of the Act. The amended Section 18 introduces two classes of additional offences.

Firstly, it makes it an offence to abduct/kidnap an adult, or child and put such person through mutilation, castration, or chemical/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, it is to be noted, the manner and occasion in which this offence has been introduced.

Through this amendment the Government is attempting to weaponise the 2019 Act. It is attempting to modify an Act implemented for the welfare of trans-genders into an act to curb the rights enjoyed by trans-genders. The underlying theme of the amendment is that trans-genders are “created” (as a consequence of genital mutilation/castration) and thus, the most effective method to protect the rights of trans-genders, is to control the number of trans-genders.

In no event can it be argued that castration, or genital mutilation does not exist, or that, there should be no framework to prohibit these offences. At present the most potent weapon to deal with such offences is “Grievous Hurt”, found in Section 117 of the Bharatiya Nyaya Sanhita, 2023. However, to introduce this offence, in an act to protect discrimination against trans-genders, and parade the same as a means to protect trans-genders from discrimination is egregious. trans-genders are forced to face discrimination in many avenues of life, and inserting an amendment expanding the existing scope of discrimination, would have been the most appropriate amendment to Section 18 of the Act.

Secondly, compelling a person, whether through “allurement, deception, inducement” to dress, or present themselves as a transgender person is made an offence. At the outset, it is unclear which “style of dressing”, the Bill tries to point towards by the expression “to dress, present, or conduct themselves outwardly as a transgender person”. However, letting go of this objection, and relying on the essence of the provision, it is inarguable, that compelling another person to take up a gender identity they do not identify as, should not go unpunished. However, introducing this offence, is a weapon to throttle the expression of any self-proclaimed gender identity other than that which has been conferred by society. Given the socio-cultural position of India, the thrust behind many people identifying beyond the gender-binary, was a friend, or a confidante who introduced them to the idea that gender was something one could identify as, not something that society could dictate. Is this allurement? Would this fall within inducement?

Further, with regards to children, the Amendment robs them of their right to choice. Under the new Section 18 (as per the Amendment), it is an offence to allure a child to “dress, present, or conduct themselves outwardly as a transgender person”. Notably, in cases of adults, such allurement must be “against their will”, however, in the case of a child, this phrase has not been used. This implies that a Child even if willing to dress as they please, receives an encouragement, or a dress from another person, this latter person could be prosecuted under the Act. Thus, in essence this offence merely seeks to propound the age-old dogma that boys must “dress like boys”.

Additionally, with respect to children, alluring/inducing a child to dress as a transgender, is an offence, regardless of whether the child is a transgender or not. Therefore, even a child who is a “biological” transgender (following the definition in the amendment), one cannot assist even such a child in dressing/presenting himself as a transgender.

The amendments proposed through this Bill although portrayed as adding teeth to the existing Act, actually does the opposite. The amendments if enacted, would push India behind by decades, and snatch from its trans-genders whatever little the 2019 Act offered. To portray this weakening exercising as a method to strengthen the framework is simply egregious. In reality, the amendment appears as a method to weaponise the 2019 Act into a tool to propagate a conservative idea, that one is a transgender only if born as one. If enacted it would only add to the Government's arsenal of weapons for moral cleansing.

Author is a Lawyer. Views are personal.