Counterpoints: The Transgender Rights Bill, 2019
- Part 1 -

Santa Khurai / Rubani Yumkhaibam *

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

The Transgender Rights Bill, 2019 was approved by the Union Cabinet Ministry on July 10, 2019. The origin of the Bill goes back to August 2, 2016, when the Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha. After referring the report of the Bill to the Standing Committee on July 17, 2017, the Bill was finally passed by the Lok Sabha on December 17, 2018.

On July 10, 2019, the Bill was approved by the Union Cabinet Ministry. Through brief article, we would like to point out the critical flaws in the Bill, and to relate the provisions of the Bill to the transgender subjects, nupi maanbis (transgender women) and nupa maanba (transgender men) in Manipur today.

The Bill has been consistently criticised by the transgender communities, lawyers, and many other collectives right from its passage in 2016. The main crux of the criticism is the task of defining the 'transgender identity'.

It must be mentioned here that in the 2016 version of the Bill, transgender identity was defined as one 'who is partly male or partly female, or neither male nor female'. Such a description of a transgender identity constructs the subjects as lacking a stable gender identity, which ultimately reinforces the marginalisation and prejudices against the subjects.

The transgender communities all over India protested against the implied humiliation of the trans identity. Following the outrage from various collectives, the terms of defining the transgender identity have undergone a few modifications, which has led to the current definition – '"transgender person" means a person whose gender does not match with the gender assigned to that person at birth and include trans-man or trans-woman (whether or not such a person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, Genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta' (Page 2 of The Transgender Rights Bill, 2019).

This sub-section from the Bill gives a broad definition of a transgender identity. The definition recognises that a person whose natal gender is at odds with the real gender expression (of the same person) is legally recognised as a transgender. For such a recognition, no medical intervention is needed.

A genderqueer person, meaning a person whose gender cannot be confined within the man/woman binary, is recognised as a transgender. People whose identities have socio-cultural relevance in many communities of India, such as hijra, kinner, aravani and jogta are also recognised as transgenders.

What is problematic is the classification of intersex people as transgender. Intersex people do not relate themselves as transgender or transsexuals, and they need different understanding both in the legal and medical domains, for a fuller growth of the individuals.

The above sub-section that defines the transgender identity is complimented by another sub-section that states 'person recognised as transgender under sub-section (the one quoted above)(I) shall have the right to self-perceived gender identity.'

This sub-section connotes that a transgender person who wants to identify himself/herself with any gender, man or woman, may do so upon the testimony of self-perception, no requirement of medical intervention (to be identified as a man or a woman) is mentioned till this point of transgender gender identification.

However, a sub-section inserted later with regard to change of gender of a trans person introduces a problem with the right to 'self-perceived' gender.

The introduction of change in gender in section 7 sates -
'(1) After the issue of a certificate under sub-section (1) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed.'

This sub-section implies that a transgender person can be recognised as a man or a woman only after going through Sex Reassignment Surgery (SRS). The section clearly violates the gender subjectivity or the validity of 'self-perceived' gender, which only a can transgender person must exercised over himself/herself. Any external agency's determination in the perception of a transgender identity is conceptually contradictory.

It must be remembered that according to the Supreme Court verdict in NALSA vs. UOI (2014), a transgender person can recognise himself or herself as a man or a woman without Sex Reassignment Therapy or any form of hormone treatment. However, the lack of clarity and existing contradictions between a few sub-sections of the Bill regarding the transgender identification contradicts the purpose of both the Bill and the Supreme Court verdict.

The question to be raised is – why is a Bill that concerns itself with extending rights and protection to transgender persons constantly trying to limit the experiences and personal autonomy of trans people?

The answer lies in the implication that the governmental rationality is seeking to confine the legitimacy and identity of those who do not conform to gender binary of the heteronormative society.

To put in other words, the Bill attempts to 're-orient' the transgender subjects to either/or logic of man/woman fixity, a rationale that has marginalised transgender persons for decades. The indecisive language of the Bill will ultimately deny the right to be different.

The lack of transparency in the definition of the transgender identity is particularly damaging to the transgender people, nupi maanbis and nupa maanbas in the Manipuri society. Among the transgender subjects of the contemporary Manipur, the sexed body, either through birth or Sex Reassignment Surgery or hormone therapy, does not play a vital part in the expressions of one's gender.

In our fieldwork among the nupi maanbis and nupa maanbas that we have conducted over the years, transgender persons who have not gone through hormone therapy or surgical reassignment identify themselves as man or woman according to their gender subjectivity.

Moreover, there are multiple expressions of transgenderism in the contemporary Manipur society, and consequently there are different ways of being a man or a woman among the indigenous subjects.

Thus, while some nupi maanbis are contented with a singular expression of transgender as a 'third gender', some others have been living their lives as a man or a woman outside the natal gender.

Indeed, this non-conformity between the sexed body and lived gender is the central experience of a transgender person. Society as a whole has the ethical responsibility to acknowledge and accept the diversity that exists amongst ourselves.

The fixity of sex/gender binary is a Western construct, and the imposition of such a straightjacket norm is tantamount to the erasure of the multiplicity of gender that has always been existing in the Manipuri society. Once again, the Bill has failed to address to the diversity of transgender expressions in different communities in India.



To be continued....