The Transgender Persons (Protection of Rights) Bill, 2018 was passed by the Lower House of Parliament (the Lok Sabha) in December, 2018. In this blog, we will look at how the principle of self-determination of gender identity has been reduced to a privilege by the wordings of the Bill.
The 2018 Bill deals a severe blow to the principle of self determination as enunciated by the Supreme Court. As opposed to the Supreme Court ruling, transgender persons do not have a right to self-identity, but a privilege; if they are able to persuade a District Screening Committee of their gender identity. It is not unusual for a right granting provision to lay out some conditions for accessing the right. However, the conditions must be procedural and not cumbersome so as to transform the character of a right into a privilege. However, this is what the 2018 Bill does.
It provides that persons may obtain a certificate recording their identity as “transgender” by making an application to the District Screening Committee. The list of these documents is not provided in the Bill. They will be set by Rules following the Bill, should the Bill become an Act. It is usually the prerogative of the executive, i.e. the government of the day to formulate these Rules. The application shall be screened by the District Screening Committee which shall comprise 1. A medical officer; 2. Social welfare officer; 3. a psychologist or psychiatrist; 4. A representative of the transgender community; 5. A government nominated officer. The Bill does not state on what grounds the application will be assessed and what the process will be for making a decision. In other words, will it be a majority decision? How much importance will be given to the opinion of the sole transgender person on the panel? Such things will be clarified by the Rules. However, the power division on the screening committee seems quite asymmetrical at the outset. Medical and mental health officers are not required on such a panel expect to make a determination of the sound medical condition of the application claiming a different gender identity. Based on the “recommendations” of the committee, the applicant will receive a certificate which will record their gender identity as “transgender.” As per the Supreme Court, the self-identity principle of gender meant that a person should be able to identify in their true gender without being assessed by a committee. At best, the committee can be a formal requirement. If the committee starts to make substantive assessment on whether a person actually belongs to their true gender then the directions of the Supreme Court are being turned on their head. The right of self identity will be transformed into a privilege and will be only available to those who can persuade the District Committee.
This is a crucial part of the Bill to correct because many derivative rights are associated with the certificate. The Bill itself mentions that it is the certificate that entitles the transgender persons to various rights associated with the Bill. As per the Bill, only those who have obtained the certificate can change their name and gender in their birth certificate and other official documents. As of now, advocates are still able to sometimes argue that their clients are eligible for change of name and gender on the basis of a self-attested affidavit but this will change once the certificate comes into effect. Apart from wrestling the power of self-determination from transgender persons and vesting it in the hands of a screening committee, the Bill also narrows the scope of self-identity in other important ways. Let us look at them below.
First of all, a
transgender person can only identify as either 1. Transgender; 2. Male; or 3.
This means an automatic reduction in scope of the Supreme Court decision. The
Supreme Court had ordered that a transgender person can identity either as 1.
Male; 2. Female; or 3. Third gender.
The category of “third gender” included, as per the court, Hijras and eunuchs.
Although as per the 2018 Bill, Hijras and eunuchs are included in the
definition of transgender, this still results in a loss of identity because
these two classes of people cannot identify as third gender. This becomes
especially important for the Hijra community because members of this community
may not identity either as male or female or transgender. We will not go into
the implications of for eunuchs because that itself is a derogatory term and
misplaced in the whole transgender debate. Eunuchs are castrated males. It is
unclear how they fit into the definition of transgender. One possibility is
that the Supreme Court included this group of people into this debate to refer
to those intersex children who are born with ambiguous genitalia and are given
over to the Hijra community. In popular imagination these persons are classed
as eunuchs, and it is possible that the Supreme Court order was meant to
provide an option to such persons. However, this can be easily rectified
through drafting if the Bill is amended to provide that transgender persons can
identity either as male, female or third gender. Such a drafting correction
will be in compliance with directions 1 and 2 of the Supreme Court.
Secondly, the 2018
Bill overlooks the many categories of persons who do not identity either as
transgender, or as male or female. This is an issue where the Supreme Court
decision itself is in default. Although the Supreme Court was right to
understand that transgender includes the vast gamut of people who do not
identify in the gender that they were assigned at birth,
its directions were narrower than this pronouncement. In its final directions,
it allowed transgender persons to identity only as 1. Male; 2. Female or; 3.
Third gender. These directions did not allow among others, gender queer
persons, or gender fluid persons, for example, to identify as gender queer or
gender fluid, respectively. While it is understandable that the Bill may
require persons to have one identifying category (transgender, for example) to
identify the class for whom its various provisions are triggered, it is
possible for it to provide for people to identify outside of the categories of
male, female or third gender. This can be accomplished by providing a space for
people to record their true identity alongside that of “transgender” in the
 S. 8.
 Direction 2, NALSA.
 Para 11.