Amnesty International India welcomes the opportunity to make a submission on The Transgender Persons (Protection of Rights) Bill, 2016 to the Standing Committee on Social Justice and Empowerment.

Amnesty International India is deeply concerned that the Bill, if passed into law in its current form, will undermine the rights of transgender and intersex persons, and violate India’s international human rights obligations and the ruling of the Supreme Court in the landmark NALSA judgement of 2014.

Amnesty International India urges the government to conduct public consultations with members of transgender communities, revise the Bill to bring it in line with international human rights law and standards and the NALSA ruling, and reintroduce it in Parliament.

This submission analyses some of the provisions of the Bill in light of the NALSA ruling and international human rights law and standards related to the rights of transgender persons, and describes Amnesty International India’s concerns.

1. Definition of transgender persons

Section 2(i) of the Bill defines ‘transgender person’ as “a person who is—

(A) neither wholly female nor wholly male; or (B) a combination of female or male; or (C) neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.”

Concerns: Transgender, or trans, people are individuals whose gender expression and/or gender identity differs from conventional expectations based on the physical sex they were assigned at birth. As stated by the Supreme Court in the NALSA ruling, the term ‘transgender’ is an umbrella term “used to describe a wide range of identities and experiences.”

The definition of ‘transgender persons’ used in the Bill runs contrary to international human rights law and the Supreme Court judgement in the NALSA case.

The definition of “transgender persons” as being “neither wholly female nor wholly male”, or “a combination of female or male” incorrectly equates gender identity with biological sex. It also reinforces harmful stereotypes about transgender persons being part-male and part-female.

Further, the definition of ‘transgender’ persons also conflates the definition of intersex persons – who are born with sex characteristics that do not fit the typical definition of male or female – with transgender persons.

2. Definition of discrimination

Section 3 of the Bill prohibits the denial or discontinuation of, or unfair treatment in, several areas including employment, healthcare, and the right of movement. However the Bill does not explicitly define discrimination.

Concerns: Transgender persons have historically faced a range of discrimination by the state and citizens. For example, transgender persons routinely face discrimination in access to education, employment, health care, and housing.

It is prudent therefore to include a definition of discrimination which covers the range of violations that transgender persons face. The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, which the Supreme Court referred to with approval in the NALSA judgement, state: “Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.”

3. Recognition of gender identity

Chapter III of the Bill provides a mechanism for gender recognition, which stipulates that transgender persons may make applications to a District Magistrate for receiving a certificate of identity as a transgender person. The District Magistrate then refers the application to a ‘District Screening Committee’ - which includes a medical officer and a psychologist or psychiatrist - and on the basis of their recommendations issues a certificate of identity as a transgender person. Persons with such certificates can then change their first name in official identity documents.

Concerns: Transgender persons have a right to formal recognition of their self-defined gender identity, and governments are obligated to respect this right. The Yogyakarta Principles require states to “take all necessary legislative, administrative and other measures to fully respect and legally recognize each person’s self-defined gender identity.”

The Supreme Court has also clarified that transgender persons have a right to decide their self-identified gender. In the NALSA case, the Court ruled that self-determination of gender flowed from the rights to freedom of expression and personal liberty under Articles 19 and 21 of the Constitution of India. It ruled: “We, therefore, declare that…transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”

The Bill lays out a vague bureaucratic procedure to be followed for legal gender recognition which is likely to violate this right. It does not specify any grounds for the District Screening Committee to make its recommendations, or for the District Magistrate to follow them. The presence of medical professionals on the panel increases the risk that the recognition of the gender identity of the applicant will be based on some kind of assessment of medical, biological or psychological ‘eligibility’, which would risk pathologising trans identities, and violate the right of transgender persons - under the Supreme Court judgement and international human rights law and standards - to have their self-identified gender recognized.

Any procedure for ‘identification of transgender persons’ which goes beyond self-identification, and is likely to involve an element of medical, biological or mental assessment, would violate transgender persons’ rights under Article 19 and 21 of the Constitution.

Also, the Bill only provides for applicants to receive identity certificates as transgender persons, which restricts the right to recognition of their gender identity. In accordance with the Supreme Court ruling, trans persons must be able to secure recognition of their self-identified gender as male, female or transgender.

The Bill, by stating that persons who receive identity certificates will be able to change their first names, also implies that transgender persons will not be able to change their last names on official identity documents. Since cisgender persons can officially change both their first and last names, this provision can create a discriminatory restriction against trans persons.

4. Grievance redressal mechanism

Section 12 of the Bill states that establishments with 100 or more persons shall designate a person to be a complaint officer to deal with complaints of violations under the Bill.

Concerns: Limiting the redressal system in employment to establishments with 100 persons or more will exclude a large segment of the transgender population working in the informal sector.

To deal with complaints from establishments which have less than ten workers, the Bill must establish an effective redressal mechanism. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, for instance, requires the establishment of local complaints committees in all districts, and internal complaints committees in all workplaces with ten or more employees.

5. Right of residence and movement

Section 13(1) of the Bill states that “no transgender person shall be separated against their will from parents or immediate family on the ground of being a transgender, except on an order of a competent court, with the explicit consent and in the interest of such person.” Section 13(3) states that where family members are unable to take care of a transgender person, they can be “placed in a rehabilitation centre.”

Concerns: Activists have said that the wording of this section could be interpreted as meaning that transgender persons are required – against their will - to either live with their families or approach courts to be transferred to rehabilitation homes. Such an interpretation would violate the rights of adult transgender persons to freedom of movement and residence.

Additionally, government-run rehabilitation centres are often sites of violence against transgender persons, and can restrict their mobility. The right of residence needs to be expanded to include the right of transgender persons to choose where and with whom to live.

6. Affirmative action

While Chapter IV of the bill contains provisions related to the provision of inclusive education, formulation of welfare schemes and programmes, and measures towards providing adequate health care, it does not contain any provisions related to affirmative action.

Concerns: The Supreme Court judgement in the NALSA case directed central and state governments “to extend all kinds of reservations in cases of admission in educational institutions and for public appointments” to transgender persons. The Bill is therefore inconsistent with the Supreme Court ruling.

Under international human rights law, states are obligated to adopt affirmative action policies towards diminishing or eliminating conditions that perpetuate discrimination.

The formulation of welfare schemes and programmes to support the livelihoods of transgender persons, and designing of guidelines for sex reassignment surgery and health schemes, must be done in consultation with transgender persons and civil society, to ensure that these decisions are taken with full awareness of the implications for the rights and welfare of transgender persons.

7. Offences against transgender persons

Section 19 of the Bill recognizes certain categories of crimes committed against transgender persons, including the compelling of transgender persons to engage in begging. All these offences are punishable with imprisonment for up to two years.

Concerns: The bill does not fully recognize the range of violence that transgender persons face, and does not provide for sentences commensurate with the gravity of the offences. The Indian Penal Code was amended in 2013 to expand the definition of rape and recognize a broader range of offences against women, including acid attacks, voyeurism, stalking, sexual harassment and disrobing. Transgender persons often face similar abuses. The Bill must recognise these offences as crimes against transgender persons, and provide for sentences commensurate with their gravity.

There is also a risk that the bill could end up criminalizing transgender persons begging of their own volition. Criminalizing the act of “compelling or enticing transgender persons in begging and other forms of forced or bonded labour” increases the risk that transgender persons – many of whom have limited employment opportunities – will be criminalized due to misuse of the law, as has occurred in several instances. Provisions on beggary under other laws already exist, and are already used to harass and abuse transgender persons. Those provisions must be modified to curb misuse. No new provisions need to be introduced under this bill which would increase the risk of abuse of transgender persons.

The bill should specifically recognize, and provide appropriate penalties for, violence that transgender persons face from officials in educational institutions, health care institutions, police stations, jails, shelter and remand homes, or other places of custody.

8. Immunity from prosecution

Section 22 of the Bill provides immunity from legal proceedings to government officials “in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.”

Concerns: Immunity provisions under other Indian laws have contributed to impunity for authorities suspected of committing human rights violations. In doing so, they have violated the rights of victims to an effective remedy. There is a risk that the immunity provision in the Bill will also similarly provide impunity to authorities who violate its provisions.

9. Right to found a family and inheritance rights

The bill does not explicitly recognize the rights of transgender persons to found a family and to inheritance.

Concerns: The Supreme Court noted in the NALSA judgement that a binary notion of gender was reflected in existing Indian laws related to marriage, adoption, inheritance and succession, among others. The Yogyakarta Principles stipulate that states should take steps to ensure the right of transgender persons to found a family, including through access to adoption, and equal inheritance rights.

The bill should ensure that transgender person are able to enjoy equal marriage, parenting, partnership and custody rights as others, and ensure their right to found a family, including through access to adoption. It must also explicitly recognize transgender persons’ inheritance rights.