REPORTS & ESSAYS


  • Making Transgender Rights a Reality in India

    Jayshree Bajoria

    November 17, 2017

     

    “While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight,” says Ramesh Bais, a member of parliament from India’s ruling Bharatiya Janata Party, “there is most certainly shame and dishonor in being a homophobe, a transphobe and a bigot.”

    This strong public acknowledgement of the LGBT community, long marginalized in India, introduces and sets the tone for a new report on transgender rights by parliament’s Social Justice and Empowerment Committee. The report, presented to parliament last week, examines a draft bill on transgender rights – the Transgender Persons (Protection of Rights) Bill – introduced in parliament in August last year.

    Indian transgender communities, as well as Human Rights Watch, have flagged concerns over the draft law. The bill contradicts several provisions laid down in the watershed 2016 Supreme Court ruling that transgender people have the right to self-identify as male, female, or third gender; that the government should ensure their fundamental rights without discrimination; and that they should receive special benefits in education and employment. The new report addresses these concerns, and also notes the bill’s failure to properly define discrimination, its silence on penalties for those who violate transgender rights, and the absence of an option for transgender people to bring a complaint if they are mistreated or abused.

    The report also notes that the draft law fails to properly protect transgender people from rape and sexual assault. Significantly, it points out that they remain at risk of arrest and prosecution because section 377 of the Indian Penal Code criminalizes same-sex sexual relations.

    The report slams the bill’s definition of transgender people – as “neither wholly female nor wholly male,” “a combination of female or male,” and “neither female nor male,” – as “unscientific and primitive,” and one which “completely misunderstands trans identities” and severely restricts their right to self-identify.

    The Indian government should amend the transgender rights bill to ensure that transgender people can self-identify their legal gender without unwanted intervention from committees or experts, be they medical, psychological, or anyone else. And this alone should form the basis for their access to all rights, social security measures, benefits, and entitlements. Only then can the law support the communities it seeks to protect and empower. The parliamentary committee, headed by Bais, has made a great start in backing trans rights in India. Now it’s up to the government to not only enact a good law, but repeal the colonial legacy of section 377 as well.


     

    First published in Human Rights Watch.

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