Shashi Tharoor opposes determination of gender identity through physical test, says it smacks of victorian morality

By Naz Asghar

Dec 18, 2018

New Delhi: Can the gender identity of a person be determined by a district-level panel of government officials by subjecting the person to physical test? The proposal sounds unfortunate, against which Congress MP Dr Shashi Tharoor raised strong objection but that is what the Bill passed by the Lok Sabha on transgenders’ rights provides for.

The Indian laws are still under the influence of old Victorian ideas of morality while the British have moved on and adopted progressive laws like the UK Gender Recognition Act, he said and referred to the Yogakarta principles which clearly lay down that gender identity is an individual’s deep and personal experience, and it need not correspond to the sex assigned at birth.

Dr Tharoor said gender identity includes the personal sense of the body and other expressions such as one’s own personal inducing, but unfortunaltely , the Bill brought in by the Government still uses phrases like ‘neither wholly female nor wholly male’ or ‘ a combination of female and male’ while defining a transgender person.

Such a definition confines a transgender to a biological determination of gender which is reminiscent of the regressive and outdated principles rejected by the Supreme Court of India.

One cannot take away the liberty of a person to self-determination of gender, which is a fundamental right under Article 21 of the Constitution, Dr Tharoor argued while taking part in the discussion in the Lok Sabha on the Transgender Persons(Protection of Rights) Bill, 2016 on December 17.

The Bill has prescribed a procedure involving a District Screening Committee to certify someone as a transgender person.

Dr Tharoor’s argument was that self-determination of gender is the integral part of personal autonomy and that state cannot take away the liberty of a person to determine this by putting a Committee to decide for this person, what gender the person should belong to.

”What is the Minister thinking if he is going to ask a District Screening Committee to do something which the Supreme Court has said cannot be done? ” he said.

The Committee has a Chief Medical Officer who will do physical test, but any form of such physical test to determine whether a person is transgender violates the dignity, the privacy and the autonomy of the transgender person.

This provision was in violation of the NALSA judgement on the meaning of gender identity as it conflates intersex persosns with transgenders, Dr Tharoor said underlining that a person with intersex variation might be satisfied with the gender assigned, or can chose to be considered a transgender, so it would be wrong to assume that all persons with intersex variation are transgender persons.

He, however, agreed that there must be an identity provision so that eligible people can benefit by the provisions envisaged in this Bill. Instead of a district committee certification, there should be a ”swift time-bound approach” whereby a transgender person can make or submit a self-declaration of gender to the District Magistrate, he said.

”I had written to the Minister on the first of January of this year to tell him to
revise the definition of transgender persons. While I am glad that he has agreed to drop his earlier definition and has adopted a large part of the definition that I am proposing before this House, the definition he is pushing for is still defective as it deemed all intersex persons to be transgender persons,” he said.

He also proposed a few more amendments. One was regarding Clause 3 of the Bill which prohibits discriminatory practices against transgender persons but it fails to define discrimination and limits itself to only 9 types of practices.

The clause prohibits certain acts, however it fails to specify the civil or criminal
liability which may arise if a person commits them.

Dr Tharoor objected to Clause 12 of the Bill which states that every establishment consisting of one hundred or more persons shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.

However, the average employment size of an economic establishment in India is 2-3 people as per the Sixth Economic Census. Therefore, by placing a high numerical threshold, the Bill will effectively exclude majority of the establishments in India.

He also found Clause 19(d) of the Bill highly discriminatory as provides that a person who subjects a transgender person to sexual abuse, is awarded punishment of minimum 6 months. This is provision, he argued, was devoid of logic, highly discriminatory as well as insulting.

His point was that when women are subjected to sexual offences, the perpetrators are subjected to harsher levels of punishment, but this clause treats transgender persons as second-class citizens and was in gross violation of Article 14 of the Constitution.

The Government passed the Bill with 27 amendments but rejected all the changes proposed by the Opposition.

(India News Stream)