Counterpoints: The Transgender Rights Bill, 2019
By Santa Khurai and Rubani Yumkhaibam
The Transgender Rights Bill, 2019 was approved by the Union Cabinet Ministry on July 10, 2019. The origin of the Bill goes back to August 2, 2016, when the Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha. After referring the report of the Bill to the Standing Committee on July 17, 2017, the Bill was finally passed by the Lok Sabha on December 17, 2018. On July 10, 2019, the Bill was approved by the Union Cabinet Ministry. Through brief article, we would like to point out the critical flaws in the Bill, and to relate the provisions of the Bill to the transgender subjects, nupi maanbis (transgender women) and nupa maanba (transgender men) in Manipur today.
The Bill has been consistently criticised by the transgender communities, lawyers, and many other collectives right from its passage in 2016. The main crux of the criticism is the task of defining the ‘transgender identity’. It must be mentioned here that in the 2016 version of the Bill, transgender identity was defined as one ‘who is partly male or partly female, or neither male nor female’. Such a description of a transgender identity constructs the subjects as lacking a stable gender identity, which ultimately reinforces the marginalisation and prejudices against the subjects. The transgender communities all over India protested against the implied humiliation of the trans identity. Following the outrage from various collectives, the terms of defining the transgender identity have undergone a few modifications, which has led to the current definition – ‘“transgender person” means a person whose gender does not match with the gender assigned to that person at birth and include trans-man or trans-woman (whether or not such a 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’ (Page 2 of The Transgender Rights Bill, 2019).
This sub-section from the Bill gives a broad definition of a transgender identity. The definition recognises that a person whose natal gender is at odds with the real gender [removed]of the same person) is legally recognised as a transgender. For such a recognition, no medical intervention is needed. A genderqueer person, meaning a person whose gender cannot be confined within the man/woman binary, is recognised as a transgender. People whose identities have socio-cultural relevance in many communities of India, such as hijra, kinner, aravani and jogta are also recognised as transgenders. What is problematic is the classification of intersex people as transgender. Intersex people do not relate themselves as transgender or transsexuals, and they need different understanding both in the legal and medical domains, for a fuller growth of the individuals.
The above sub-section that defines the transgender identity is complimented by another sub-section that states ‘person recognised as transgender under sub-section (the one quoted above)(I) shall have the right to self-perceived gender identity.’ This sub-section connotes that a transgender person who wants to identify himself/herself with any gender, man or woman, may do so upon the testimony of self-perception, no requirement of medical intervention (to be identified as a man or a woman) is mentioned till this point of transgender gender identification. However, a sub-section inserted later with regard to change of gender of a trans person introduces a problem with the right to ‘self-perceived’ gender. The introduction of change in gender in section 7 sates - ‘(1) After the issue of a certificate under sub-section (1) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed.’ This sub-section implies that a transgender person can be recognised as a man or a woman only after going through Sex Reassignment Surgery (SRS). The section clearly violates the gender subjectivity or the validity of ‘self-perceived’ gender, which only a can transgender person must exercised over himself/herself. Any external agency’s determination in the perception of a transgender identity is conceptually contradictory.
It must be remembered that according to the Supreme Court verdict in NALSA vs. UOI (2014), a transgender person can recognise himself or herself as a man or a woman without Sex Reassignment Therapy or any form of hormone treatment. However, the lack of clarity and existing contradictions between a few sub-sections of the Bill regarding the transgender identification contradicts the purpose of both the Bill and the Supreme Court verdict.
The question to be raised is – why is a Bill that concerns itself with extending rights and protection to transgender persons constantly trying to limit the experiences and personal autonomy of trans people? The answer lies in the implication that the governmental rationality is seeking to confine the legitimacy and identity of those who do not conform to gender binary of the heteronormative society. To put in other words, the Bill attempts to ‘re-orient’ the transgender subjects to either/or logic of man/woman fixity, a rationale that has marginalised transgender persons for decades. The indecisive language of the Bill will ultimately deny the right to be different.
The lack of transparency in the definition of the transgender identity is particularly damaging to the transgender people, nupi maanbis and nupa maanbas in the Manipuri society. Among the transgender subjects of the contemporary Manipur, the sexed body, either through birth or Sex Reassignment Surgery or hormone therapy, does not play a vital part in the expressions of one’s gender. In our fieldwork among the nupi maanbis and nupa maanbas that we have conducted over the years, transgender persons who have not gone through hormone therapy or surgical reassignment identify themselves as man or woman according to their gender subjectivity. Moreover, there are multiple expressions of transgenderism in the contemporary Manipur society, and consequently there are different ways of being a man or a woman among the indigenous subjects. Thus, while some nupi maanbis are contented with a singular expression of transgender as a ‘third gender’, some others have been living their lives as a man or a woman outside the natal gender. Indeed, this non-conformity between the sexed body and lived gender is the central experience of a transgender person. Society as a whole has the ethical responsibility to acknowledge and accept the diversity that exists amongst ourselves. The fixity of sex/gender binary is a Western construct, and the imposition of such a straightjacket norm is tantamount to the erasure of the multiplicity of gender that has always been existing in the Manipuri society. Once again, the Bill has failed to address to the diversity of transgender expressions in different communities in India.
The advancement in modern medical technology cannot be counted as particularly relevant to transgender people across the board. Many nupi maanbis and nupa maanbas are not aware of the ‘need’ for Sex Reassignment Surgery in order to acquire a legal identity, not to mention the lucrative boom of the surgical industry. SRS became popular in the West in the later decades of the 20th century, and it remains as an important way of validating a man/woman gender identity in many parts of the West today. The generous amount of encouragement provided for SRS and hormone therapy in the sections of the Bill is an attempt to ‘normalise’ the subjects into sex/gender binary, and hence an erasure of non-conforming identities.
The existence of SRS and the possibility of ‘changing’ one’s sexed body entered in the Manipuri transgender scene only in the recent wave of queer visibility on the risky World Wide Web. Legalising SRS and hormone therapy as a clause for becoming a man or a woman is at its best an elitist concept, not every transgender subject has the resource needed for the task. SRS will create a great divide between the pre-operative and post-operative (transgender) men or women, which is also a transphobic division.
Another critical determination that the Bill attempts to include is the power vested in the hands of the ‘family’, parents and guardians of the transgender persons, especially the transgender minors. The Bill has a traditional understanding of family – ‘“family” means a group of people related to by blood or marriage or by adoption made in accordance with law.’ Parents and guardians will be defined through blood relation and legal adoption. Indeed, one cannot undermine the importance of the family. However, the experience of many transgender people have put questions on the sole autonomy given to the family. Many nupi maanbi minors in Manipur face domestic resistance, which is often in the form of physical violence and disavowal by the relatives and parents. In such cases, they start seeking familial love and bonding outside the natal family. The Bill does not recognise the importance of the alternate family in the protection of transgender persons.
Section 12 of the Bill states, “No child shall be separated from parents or immediate family on the ground of being a transgender, except on the order of a competent court in the interest of such child.”
This section of the Bill targets the hijra community, in which adoption of a hijra minor by a hijra guru is a cultural tradition, and hijras are often blamed for ‘kidnapping’ such minors.. Will it be criminal for a hijra guru to accommodate a rejected or an abused minor in a hijra household? It follows that the Bill is inventing crimes, rather than punishing crime against hijra communities. In a common incident among many young transgenders today, most parents try to restrict the movement of their children once the latter start showing the signs of transgenderism, and in many cases parents attempt to suppress the trans identity through violence, or counselling in a few cases (one of the greatest ironies of modern psychiatry is its complicity in enforcing ‘normativity’).
In Manipur, many adolescent children who show signs of transgenderism live under familial rejection and domestic violence. In such cases, the available alternatives for emotional and physical accommodation are beauty parlours or the homes of other nupi maanbi protectors and friends. Nupi maanbis have often opined that it is their friends who have provided protection from the familial rejection and violence. Under such circumstances, the under-recognition of spaces other than ‘family’ is counter-productive, and hence adds to the emotional and physical alienation experienced by many young nupi maanbis. If the Bill becomes a law, it can warrant the raid of beauty parlours (which have become alternate familial space for nupi maanbis in Manipur) on the charge of separating the minors from the family. Or the Bill can criminalise a senior nupi maanbi friend on the charge of blackmailing a minor. The Bill gives ample opportunities to the legal establishment and the police to intervene in such areas of alternate bonding and protection. By investing the sole authority in the hands of the ‘family’, at the cost of criminalising the alternate space for nurture and love, the Bill makes the minors more vulnerable than before. In this manner, the Bill is more likely to damage the growth and subjectivity of a transgender minor. Besides, to invest power in a ‘competent court’ to decide for the interest of a minor is equivalent to running into the maze of corrupt Indian bureaucracy whose mechanism is particularly adversarial to expressions of alternate gender and sexuality. Many transgender subjects in India today are not even able to lodge a police case against harassments; even after decriminalising homosexuality between consenting adults, many are still made to live in shame and violence. How would overindulgence of courts and the police help the transgenders when all the subjects need is civil rights and protection?
Once again, the authoritative implications of the Bill veil the institutional attempt to ‘re-orient’ the transgender subjects in the heteronormative ways, and to suppress the unique socio-cultural space of the transgender communities. In this manner, Bill further destabilises the conditions of the people who are already marginalised.
The Bill also mentions that in case of deadlock regarding the residence of a minor, the minor will be sent to a rehabilitation centre. Rehabilitation as an alternative to a hostile environment comes across as poorly conceived. What will be the task of such rehabilitation? What will constitute such rehabilitation? Is rehabilitation itself a sensitive suggestion? Another section lacking in transparency in the Bill concerns with the District Magistrate. What is the ‘procedure’ through which the District Magistrate has to issue a certificate of identity? The Bill does not clearly outline the procedure through which the issue of certificate will be put on the table. These loopholes will become a very fertile context for further abuse and marginalisation.
In the final analysis the Transgender Rights Bill, 2019 is lacking in transparency in many respects – its stance on SRS/hormone therapy regarding the self-declaration of man or woman on the part of the transgender subjects; handling of the transgender minors; suppression of communal space for the transgenders. And above all, the Bill attempts at uniform codification of transgender identity throughout the country. This is an attempt to suppress the indigenous culture and relevance of diverse transgender communities in India. Despite its birth in postcolonial India, the Bill’s undercurrents are colonial in all the respects discussed above. A Bill that attempts to protect and extend civil rights and liberties to the marginalised persons could only compromise their identity and autonomy. The Bill is another effort at controlling and governing over the marginalised subjects, and in this trajectory, queer legislation in India is an exercise in reinforcing heteronormativity.
(Authors Note: Santa Khurai is an indigenous nupi maanbi gender activist and Rubani Yumkhaibam is a researcher in queer identities/communities in Manipur.)
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