The committee, headed by BJP MP Ramesh Bais, pointed at several loopholes in the Bill and said that transgenders "remain at risk of criminalisation under Section 377 of the IPC", if the Bill was implemented.
The Social Justice and Empowerment Ministry has sought to make a few changes to the Transgender Persons (Protection of Rights) Bill before introducing it in the Winter Session of the Parliament. Significant among these changes — nine to be precise — include the expansion of the definition of transgender to include the hijra community, inclusion of the definition of intersex, and providing medical cover for sex reassignment surgery.
Ministry officials said the reason behind the changes was a report on the Bill that the Standing Committee submitted to the Parliament in July this year. The committee, headed by BJP MP Ramesh Bais, pointed at several loopholes in the Bill and said that transgenders "remain at risk of criminalisation under Section 377 of the IPC", if the Bill was implemented.
To bring in these changes, the ministry first sent the changes to the law ministry, which approved it.
In a note to the Cabinet that the ministry sent out in November, it wrote: "The Standing Committee has made recommendations, of which nine have been accepted by the ministry. In the above backdrop, based on the report of the Standing Committee, the ministry proposes to make official amendments to the Transgender Persons (Protection of Rights) Bill, 2016," read the note.
One of the key changes is the redrafting of the definition of transgender. As per section 2 (i) of the Bill: "Transgender person means a person who is a) neither wholly female nor wholly male or b) a combination of female and male or c) neither female or male, and whose sense of gender does not match with the gender assigned to that person at the time of birth. It includes trans-men and trans-women, persons with intersex variations, and gender-queers."
Yet, as per the new changes mooted by the ministry, a transgender person is one "whose gender does not match to the gender assigned to the person at birth and includes trans-man or trans-woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), gender-queer, and persons having such socio-cultural identities as kinnar, hijra, aravani, jogta, kothi, or other similar identity."
A "person with intersex variations", an addition to the Bill proposed by the ministry, is defined as "one who at birth shows variation in primary sexual characteristics, external genitalia, chromosomes, or hormones from a normative standard of male or female body."
Apart from that, the government has also proposed defining of "family" as "a group of people related by blood or marriage or by adoption made in accordance with law". The government has also proposed doing away of the District Screening Committee for the issuance of a transgender certificate, and doing away of the minimum number of 100 individuals that need to be in an organisation to make it mandatory for the organisation to have a complaint officer.
Another addition is that of children to the list of people that cannot be separated from a transgender, and the provision for "coverage of medical expenses by a comprehensive insurance scheme" for sex reassignment surgery.
Yet, the proposed changes to the Bill do not reflect some key recommendations of the Standing Committee report, including addition of a section on "discrimination" against transgender people, specifications of the division of the share of responsibilities of the Centre and the states, defining the role of the National Council for Transgender Persons, provision for counselling for better mental health, provision of meaningful livelihood options, and the inclusion of a section on transgender in application forms or other such forms.
Bill's journey
DMK Rajya Sabha MP Tiruchi Siva introduced a private member's Bill titled The Rights of Transgender Persons Bill, 2014 in December 2014, which was passed by the Rajya Sabha in April 2015. His Bill, with several expansive sections, was rejected by the government because they felt it suffered from some "infirmities" and the government drafted its own Bill and introduced it in the Lok Sabha. When appraised of the changes that the government was mooting, Siva said that unless the Bill has provisions for employment, education, reservation, self-identification of gender, and a tougher National Council for Transgender Persons, it was lacking in will. "The Bill will not realise the goals it sets out to make," Siva said.
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