Note on the Critique of Transgender bill India 2016

I am in receipt of an article submitted by mail. I am publishing it here with a disclaimer that the opinion is that of the author and not the Official Position of Transgender India.

WHO WILL GUARD THE GUARDS

In a conversation with friends I was referred to a couple of URLs

Responses From Trans & Intersex Communities On The Transgender Rights Bill 2016

And

Trans Persons Protection Rights Bill 2016

I am really not sure who the authors are and I am not attacking them personally but their opinion.  I am simply contrasting my views W. R. T. the views expressed therein and what I have heard elsewhere.

“Unnecessary and extraordinary medicalisation and pathologization of one’s intrinsic sense of self”

They use this phrase to critique the involvement of the Chief Medical Officer in this Bill. I believe this is a shocking lack of knowledge of medical science. Who decides what is legal and illegal in India? The constitution and the statute book. Who decides what is a mental disorder? Diagnostic and Statistical Manual (DSM V) and International Classification of Diseases (ICD 10). This is not about your feelings or validating identify. It is about scientific accuracy in scientific literature. Thousands of doctors with possibly millions of hours of experience with transgendered individuals came together and drafted the current version. Where is the evidence that it is not a mental disorder? Plenty. But we cannot just Willy Nilly change it. There is a process. Even homosexuality was considered mental disorder.

Hypothetically we can stipulate the existence of perfectly well adjusted individuals who are transgender. But the mental stress induced by this psychosomatic condition is so acute that subjects are vulnerable to other mental disorders. The high prevalence of suicide among transgender make this easy to prove. As I said, it is not about your feelings. Zhou et. el. (1995) and other subsequent studies have properly mapped out the brain differences among cis and trans individuals. Other studies have mapped out the genetic and hormonal underpinnings. Imagine you are the Deputy Commissioner of a district. An individual that looks and behaves male says he wants to change his papers to transgender or female. How are you going to decide if this is not someone who is trying to just take advantage hypothetically accorded to a transgender population? They say being old or young is a state of mind. But you still have to take a birth certificate/ govt approved age proof to avail senior citizen benefits. And being a senior citizen is clear enough most of the time.

Since we cannot cut this person open to see the BsTC region of his/her brain or go back in time and see if the hormonal environment in her womb was wrong, we have to make our decision based on something observable or knowable. And here Psychology comes in.  We do not know how this person feels. But we can observe how he/she behaves. This person must have a history. Will have a present. A future. It is not about gate keeping. It is about making sure that only those people who are genuinely afflicted of a condition receive the intended relief. The Jaats burned down cities and killed to become OBC. Anyone who has worked with Hijras knows that a considerable percentage of the people living in Hijra community are cis individuals behaving like transgender to earn a livelihood. What is the guarantee that millions of unemployed youths are suddenly not going to say they are transgender to get benefit of 2% reservation accorded to being transgender in the transgender bill that was passed by Rajya Sabha (assuming there is reservation in the next bill). I know a 45 year old middle aged guy who says he has no money to transition but finds enough to get drunk every evening. This is not about gate keeping. If you sincerely are transgender you have nothing to fear. But if your motives are ulterior, yes, right, u should panic.

According to tiruchi siva Bill that was passed by Rajya sabha, there will be a 2% reservation alloted for transgender people.

We have all heard of people unethically abusing cognitive enhancing drugs (memory boosters, memory consolidation drugs etc) for competitive exams. These drugs have long term irreversible side effects on humans, but still it doesn’t ditter someone who is determined to achieve something unethically. If being transgender on papers can confer a 2% reservation in a competitive exams to get admission to a college (a admisiion that would otherwise cost Rs1 crore or more ), there can be enough people who can wear a wig & a fab ndia kurta to claim to be transgender.

I have more to say on the issue of reservation but let us not get side tracked. The authors criticize the bill for not requiring grievances redressal  mechanism for establishments employing less than 100 people. That is ludicrous! How many transgender individuals do they imagine there are? Criticism has to be fair and reasonable. There is a question of “is the justification justifiable or is it just rationalisation. For example, at the end of the piece they target a section

Chapter VII of the current draft : Offenses and Penalities mentions the following:

Whoever,—

(a) compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for  public purposes imposed by Government; shall be punishable with imprisonment for a term which shall not be less than six months but  which may extend to two years and with fine.

99.9999999% of Indians will agree with that. No one should be forced to beg or do sex work. But the authors try to pull wool over people’s eyes by giving a defense of begging and prostitution. THE SECTION NO WHERE SAYS IT FORBIDS BEGGING. This is logical switchero and a strawman argument. Have a look at their argument for wanting this section taken out:

 In November 2014, many trans women in Bangalore were randomly picked up from public places and illegally detained in the infamous “Beggar’s Colony”, a “rehabilitation” centre for beggars where unnatural deaths and deplorable living conditions have been reported. They were taken under the Karnataka Prohibition of Beggary Act, 1975 [which interestingly, exempts “religious mendicants” who beg, from criminalization].

It has to be understood that begging arises out of structural inequalities in our societies which have lead to lack of education and employment opportunities, which then have co-relations with activities like begging. Not only is this provision a human rights violation, but it will also be used with impunity by parts of the state like the Police, [as in the above mentioned case] to criminalise trans women who beg on the streets and their trans gurus/mothers.

Firtsly THE KARNATAKA PROHIBITION OF BEGGARY ACT, 1975 is not a law specially made for Transgender people, the law applies identically for men and women too. Here I am not debating the ethical value of this law, but only pointing that this law does not discriminate Transgender people. And if Living conditions in beggars colony is uninhabitable, that is a topic out of context here & is a subject of another discussion altogether. Because if a place is uninhabitable for transgender people, It is equally uninhabitable for Cisgender people.

I say to u, let us not allow people to force others children to beg.  You say “forced begging ban” will make the Transgender people vulnerable. I wonder how is forced begging and bonded labour related to the transgender community ?  If this is not an admission of the abuse of children in the certain Indigenous cultural transgender communities, I do not know what is.

Further more The Transgender Persons (Protection of Rights) Bill 2016 says,  (1) No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person.

The bill also says that,

“Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in a rehabilitation centre”.

The authors of the opinion pieces disagree with this.  They say that it is an attack on the hijra system because we are not giving the children to hijra gurus. What exactly will these hijra gurus do to these children?  I have just narrated two incidents of what hijra gurus do to children. How is the Govt of India supposed to enable that? We have to be careful of those who say they are fighting for us. The whole reasons d’être of these two seem to maintain continuity of the hijra system.