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.