Counterpoints: The Transgender Rights Bill, 2019
- Part 2 -

Santa Khurai / Rubani Yumkhaibam *

Trans-Gender (Nupi Manbi) Community of Manipur at work in Imphal in March 2013 :: Pix - Deepak Oinam

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.

Concluded ....