I.
Introduction
The aim of this
submission by Srishti Madurai is to inform the Parliament of India about the
required changes in the Transgender Bill, 2019 (“The Bill”). In the NALSA judgment,
the Supreme Court had directed the Union and the state governments to undertake
steps to fulfil the mandate of the judgment. In particular, the judgment
declared the need for legal gender recognition of transgender persons. The
Court also recognised the obligation of the government to address the needs of
persons who did not conform to binary notion of gender identity- male or
female. The judgment also recommended the government to adopt
anti-discriminatory and social welfare measures.
With the bill,
the Union government has an opportunity to ensure fundamental rights are
guaranteed to all persons regardless of their sex characteristics and gender
identity. However, the bill has not lived up to the mandate of the normative
articulation in the NALSA judgment and hence, it suffers from serious
flaws. In this submission, we hope to offer concrete suggestions regarding each
of the chapters in the bill. Here’s a summary of our suggestions.
·
The title of the current bill should be “Gender
Identity, Gender Expression and Sex Characteristics (Protection of Rights)
Bill”.
·
The definition of ‘transgender persons’ needs to draw
distinction between transgender persons and intersex persons.
·
The bill should prohibit non-necessary and
non-consensual sex selective surgeries and sex reassignment surgeries and also
make it an offence.
·
The bill should also provide for setting up a Working
Group on Intersex Persons.
·
The bill should clearly identify the specific health
needs of transgender persons and intersex persons.
II.
Suggestions for Chapter-I
·
Title: The title of the current bill should be “Gender
Identity, Gender Expression and Sex Characteristics (Protection of Rights)
Bill”. The title of the current bill is “The Transgender Persons (Protection of
Rights) Bill, 2019”. In our view, the title of the bill does not fulfil the
mandate of the NALSA judgment which spoke about the need of legal
protection of all persons who did not conform to binary notions of gender
identity.
The current title of the bill is exclusionary in its
current form as it does not accommodate all persons whose legal protection it
seeks to recognise. The bill is also expected to address the needs of intersex
persons. However, the current title does not give the impression that it
accounts for protection of rights of intersex persons.
·
Definition of ‘Transgender persons’:
The current bill provides for the following definition:
“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 hormonetherapy or laser
therapy or such other therapy), person with intersex variations, gender-queer and
person having such
socio-cultural identities as
kinner, hijra, aravani
and jogta.”
The current bill conflates the condition of intersex
persons with transgender persons by incorporating them under the same category.
World over, there is a clearly recognised scientific distinction between the
transgender persons and intersex persons. Barring few overlaps, the legal and
welfare needs of intersex persons are different from those of transgender
persons. Therefore, the definition should highlight this distinction between
transgender persons and intersex persons enabling them to exercise the rights
which they are entitled to. Some infants/persons born or living with intersex
traits can live with a non-binary identity or may choose to
The bill should also provide for definition of key
terms- ‘gender identity’, ‘gender expression’ and ‘sex characteristics’.
III.
Suggestions for Chapter-II-Prohibition of certain acts
This chapter
essentially prescribes anti-discriminatory norms for persons and establishment
under specified contexts.
·
End discrimination based on nomenclature and
terminology: It should also contain a direction for medical
professionals to ensure that intersex traits are not characterised as
“disorders of sex development.” Further, intersex traits should not be considered
as genetic defects or genetic disorders.
·
Prohibition of non-compulsory and non-consensual Sex
Selective Surgeries/Sex Reassignment Surgeries: It shall be
unlawful for medical practitioners or other professionals to conduct any sex
reversal treatment and/or surgical intervention on the sex characteristics of a
minor which treatment and/or intervention can be deferred until the person to
be treated can provide informed consent: Provided that such sex assignment
treatment and, or surgical intervention on the sex characteristics of the minor
shall be conducted if the minor gives informed consent through the person
exercising parental authority or the tutor of the minor.
Such Medical or Surgical Treatment should be
undertaken only in specialised centres which have Multi-disciplinary clinical
team. The specific nature of the intervention should be taken as a consensus by
this multi-disciplinary team of experts with experience in handling intersex
conditions and should be guided by standard medical protocols. For exceptional
cases, where the decision-making is difficult, should be referred to Government
working group/ committee for approval.
IV.
Suggestions for Chapter III-Recognition of Identity of
Transgender Persons
Even after the NALSA judgment which declared
that medical procedures are not a necessity for self-identification, the Health
Ministry has admitted that medical procedure including sex reassignment
surgeries are being done in India. The Ministry has given the justification
that it is only done after thorough assessment of the patient, obtaining
justification for the procedure planned to be conducted with the help of
appropriate diagnostic test and only after taking a written consent of the
patient/guardian.
When this response was presented before the High Court
of Madras in the case of Arunkumar and Sreeja v. The Inspector General of
Registration and Ors., it slammed the Health Ministry and imposed a ban on
the practice of SRS on intersex infants/children. The Court held that the
consent of the parent cannot be considered as the consent of the child. Hence,
such surgeries should be prohibited.
Recognising the mandate of the Madras High Court
judgment and the NALSA judgment (Direction 5, para 129)., the bill must
ban such medical procedures to ensure that transgender persons and intersex
persons are not compelled to undergo such unnecessary medical procedures for
recognition of identity.
V.
Suggestions for Chapter IV-Welfare Measures by
Government
The bill should
prescribe specific measures to address education needs and health needs of
transgender and intersex persons. Further, the bill should also prescribe
provisions to ensure compliance of anti-discrimination measures in labour
markets. In each sector, there should be specific laws prohibiting
discriminatory practices on the basis of gender identity, gender expression and
sex characteristics.
The Mental
Healthcare Bill, 2016 and the Rights of Persons with Disabilities Bill, 2014
provide an acceptable template for this chapter as they recognise specific
areas of welfare such as education, health, employment, insurance, pension,
food security and sanitation.
VI.
Suggestions for Chapter V-Obligations of
Establishments and Other Person
In this section,
the right to bodily integrity of transgender persons and intersex persons must
be recognised in a way that no establishment shall ever compel any individual
to undergo any non-consensual and non-necessary medical procedure.
VII.
Suggestions for Chapter VI- Education, Social Security
and Health of Transgender Person
·
Education: In this chapter, specific revision of existing laws
and regulations must be mandated so as to prevent discrimination in the form of
bullying or harassment in educational institutions based on gender identity and
sex characteristics. Special measures must be taken to ensure that transgender
persons and intersex persons do not face any discrimination while appearing for
competitive exams for jobs in public services. Further, this provision should
prescribe training of schoolteachers and staff in educational institutions. The
curriculum of textbooks also needs to be revised so as to ensure inclusive education.
·
Health: In this chapter, distinct health needs of transgender
and intersex persons needs to be identified. Genetic counselling/consultation
to be integral part of clinics for intersex persons. Training programs should
be designed suitably to be address intersex/DSD issues.
All persons
seeking psycho social counselling, support and medical interventions relating to
sex or gender should be given expert sensitive and individually tailored
support by psychologists and medical practitioners or peer counselling.
The government
should introduce indigenous medical knowledge like ayurvedic counselling along
with allopathic medicine. Our civilizational ethos never treated conditions of
gender variants as any kind of disorder/mental health/dysphoria.
·
Society Security: Social security needs of the transgender
persons and intersex persons must be clearly identified and listed down in the
law in a non-exhaustive manner.
The government
should be obligated by law to prepare resource and informative materials in all
Indian languages pertaining to the awareness on issues related to transgender
persons and intersex persons. This material must be disseminated to parents,
educational institutions and to the general public. In addition to preparation
of material, the Ministry in charge must be obligated by law to conduct
adequate awareness programmes in all parts of the country on regular interval
through different public authorities.
VIII. Suggestions for
Chapter VII- National Council for Transgender Persons
This chapter
provides for the institutional framework for protection of rights of
transgender persons. There should be a specific working group for intersex
persons. It should include member of the medical profession as well as genetic
scientists.
Composition of
Working group on Intersex:
·
The working group shall consist of a Chairperson and
nine members.
·
Two persons as chair. One- Medical geneticist- 15 years
of experience. Second- The Chairperson shall be a Professor or Senior Associate
Professor of Paediatric surgery from a Government medical College with at least
twelve years of experience in dealing with intersex conditions
·
The nine members shall be five medical personnel from
government or private sector (paediatrician, paediatric surgeon /urologist, paediatric
endocrinologist, genetic scientist, plus a doctor representing department of
health) and four non-medical experts (one human rights expert, one expert in
Community Health and medical ethicsist one medical sociologists/ psychologist
and one lawyer specialised in Indian Constitutional law.
IX.
Suggestions for Chapter VIII-Offences and Penalties
·
The law should prescribe punishment for those persons
and establishment who perform any non-consensual and non-necessary sex
selective surgeries on infants/children.
