Today on the Transgender International Rights and Education Day, we take a look at the problems with the recently revised draft Transgender Persons (Protection of Rights) Rules, 2020, with Orinam, a Chennai based support collective of LGBTIQIA+ people and allies. The revised draft Transgender Persons (Protection of Rules), 2020, were published on July 13 amid the growing number of corona virus cases, making it difficult for trans people to mobilise, discuss and respond to the draft. Even the first draft Rules were released on April 18, i.e., during a national lockdown. This series takes a look at the many problems with the draft, such as releasing the draft Rules amid a global pandemic, the exclusion of intersex and non-binary persons in the Trans Act and Rules, the absence of provisions about reservation and recognition of support systems, and much more.
1. Releasing the Draft Rules Amid the Lockdown and Pandemic
Even amid a global pandemic, only 30 days have been given to respond to the Transgender Persons (Protection of Rights) Rules, 2020 with comments, suggestions and feedback. The first draft Rules, released during a national lockdown, posed a similar challenge.
Limited or no access to the internet is also a huge problem for many people in the trans community. This makes it difficult for them to mobilise, discuss and respond to the Rules.
2. Issuance of Certificate of Identity by District Magistrate
The Rules state that irrespective of the self-perceived gender identity, every individual would first need to apply for a transgender certificate and an identity card. This process will take place without a medical examination. But to get certified as M/F, one is mandated to undergo medical intervention.
A letter from the Chief Medical Officer or Medical Superintendent of the facility where the person underwent medical intervention must be submitted, along with the application form to the District Magistrate. This is in violation of NALSA’s verdict on the Right to Self-Determination of Gender.
3. Need for Inclusion of Intersex and Non-Binary Persons in the Trans Act and Rules
While the Act includes intersex persons within the scope of ‘transgender’, it is important for the Act and Rules to address issues specific to intersex persons, such as prohibition of unnecessary surgeries on infants born with ambiguous genitalia, in keeping with international guidelines, and with the Madras High Court verdict (Arunkumar and Sreeja v. The State WP(MD) No. 4125 of 2019) prohibiting such surgeries in Tamil Nadu.
Additionally, there should be explicit inclusion of non-binary trans persons by provision of ‘non-binary’ as an identity option for transgender certificates and identity cards.
4. No Recognition of Support Systems
In case of a minor child, the application for the issue of identity certificate can be only made by a parent, guardian or by a competent authority. This totally ignores the abuse that many trans children face from their natal families.
The Rules also fail to recognise support systems. This can especially harm socio-cultural communities like Hijra, Kinnar, Thirunangai, etc., who often provide shelter and care to trans children who are forced to leave their natal homes.
5. No Mention of Reservation
While the government aims to uplift the social status of transgender people, the Rules make no mention of reservation in education or employment, both of which were mandated in the NALSA verdict. Ensuring reservation would be the first step towards uplifting the community but the Rules fail to address this.
6. ‘Benefits’ or ‘Suggestions’?
Essential requirements for the transgender communities such as at least one government hospital in every state equipped to offer safe and free gender affirming surgery, government scholarships for transgender students, protection against ragging in the educational institutions, explicit inclusion of transgender persons in employment guarantee schemes such as MNREGA and all social security schemes, are listed in Annexure II as ‘suggested list of welfare schemes to be considered’.
These should be made mandatory, included within the main body of the Rules, and given a time frame for compliance by the government.
7. Gender Sensitisation and Awareness Programs
Sensitisation of educational institutions, healthcare providers and workplaces will be carried under the purview of the Central/State/UT Governments, but there is no mention of the need for the transgender community’s involvement in these programs or the protocol to design them.
8. Representation in Welfare Boards & National Council
The National Council for transgender persons will be responsible for the monitoring, review and evaluation of transgender welfare and protection of their rights across the country. But the representation of people from the trans community in the Council is limited only to five members. These five representatives will be nominated by the Central government, who are often unempathetic towards issues concerning the trans community.
9. Constitutional Validity of Transgender Act, 2019
Despite huge outrage over passing the Act and challenging its validity in the Supreme Court, the government’s insistence on publishing the rules is undisputedly transphobic and violates the fundamental rights of Transgender, Intersex, Non-Binary, Gender Non-Conforming, and people belonging to different socio-cultural identities like Hijras, Kinnars, Thurunangai etc.
This list is by no means exhaustive and only tries to highlight the pressing issues with the Rules.