Mr. Chairman, I rise to speak in support of the Rights of Transgender Persons Bill, 2014, which has been passed by the Rajya Sabha on 24^th April 2015 and brought to this House for consideration and passage.

          Earlier, this afternoon, we have seen a  disgraceful exhibition of majoritarian bigotry in which the mere introduction of a Bill on a gender issue was not sought to be permitted by the force of the brute majority in this House. What has been particularly saddening in this open and brazen display of bigotry and homophobia has been the reluctance of these people to confront their own prejudice by having an open discussion in this House. This is a House where all the issues governing the future of our nation, the laws and policies under which this country must run, are to be discussed. Yes, after discussion, the House is free to decide in favour or against. But to vote against discussion is to my mind, a low in the proud annals of Indian parliamentary democracy.

          What I see today with this Bill, however, is an opportunity to confront some of the same problems that were implicit in Section 377. In fact, Section 377 itself is part of what we are trying to overthrow with the rights of Transgender Persons Bill. The irony is that in India there has always been place in mythology for people of different gender identities, different sexual orientations. Indian history has shown no example of prejudice against these people. On the contrary, in the Mahabharata, we read about Shikhandi, who, as we know, in the end got rid of Bhishma, the great hero. We also know about the whole concept of Ardhanareeshwara. Even God is half man and half woman. Many of us would remember how the hon. Chief Minister of Andhra Pradesh, 30 years ago, Shri N.T. Rama Rao dressed up as Ardhanareeshwara and surprised his followers. But this was seen as very much in keeping with national traditions in our country. The people of transgender background were recognised as a Napunsakh gender in Vedic and Puranic literature. They were given great importance in India throughout history and even in the Islamic courts, during the period of Mughal Rule. The Jain text mentioned even a broader concept of gender identity by speaking about the idea of a psychological sex being different from that of a physical one. Unfortunately for us, the British came and they passed laws in the Indian Penal Code and after that have criminalised the whole lot of human behaviour and human reality that in India have not been criminal. It is ironic to see the self-appointed defenders of Bhartiya Sanskriti on the Treasury Benches now acting as the defenders of the worst prejudices of British Victorian morality. That is what we have seen this afternoon.

          I want to stress that when you look at Section 377 of the Indian Penal Code and when you look at the Criminal Tribes Act of 1871, all this targets the transgender community as well as the homo-sexual community. They violate the Indian ethos and the traditions of perhaps at least 2000 years of Indian cultural practice, Indian mythology, Indian history, our Puranas, our ways of living. We have instead been saddled with a colonial era interpretation of what is good and right for Indians. We have been saddled with  a morality that is not from the soil of this country but from the soil of Victorian Britain. All the prohibitions that the ruling party so fondly clings on to today, that we have seen in their exhibition of prejudice half an hour ago, all of these are legacies of British colonial rule and have no roots in Indian practice or in Indian ethos.

          I want to stress that in modern India the Supreme Court took the first step in 2014 to recognise the third gender, confirming their right to identify themselves as a third gender or a gender different from that assigned to them by their biological birth. In the case of the National Legal Services Authority versus the Union of India and others, the Supreme Court actually talked about the bias against such individuals who identify themselves as transgender persons in our society. It talks about their unjust exclusion from the social, economic and cultural activities of our society. The court stated, “Gender identity entails a person’s deeply felt internal and individual experience of gender which may or may not correspond with the sex assigned at birth including the personal sense of the body which may involve a freely chosen modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender including dress, speech and mannerisms.”

So, the Supreme Court of India has upheld the importance of the gender role in securing a person’s identity in our society. Therefore, if you want in this Parliament to preserve the rights of Indian citizens, then clearly gender rights are also a fundamental part of such rights. It is unfortunate that some have chosen to deny members of the transgender community these basic rights and protections which are available under the Constitution of India to all citizens. 

Article 14 of the Constitution speaks about the right of equality. Article 15 grants all of us the right to protection against discrimination. Article 16 gives us all the equality of opportunity in matters of public employment. And Article 21 gives us the right to personal liberty, life and dignity. All of these rights are denied to the homosexual community under 377 and are denied to the transgender community under the Indian Penal Code. These are the rights that this Bill seeks to restore.

I want to stress that Article 21, which I have already mentioned, includes the right to personal autonomy and self determination. The gender to which a person belongs has to be determined by the person himself, herself, itself, themselves, whatever word you want. Thus, the non-recognition of the right of gender violates the Constitution of India. Therefore, the Bill that is before us defines a transgender person in a liberal way as one whose sense of gender does not match with the gender assigned to that person at birth, includes trans-men and trans-women, gender queers as some of them call themselves, many other sociocultural identities like Kinnars, Hijras, Aravanis, Joktas and so on, all of these are covered in the Bill drafted by Mr. Tiruchi Shiva and passed in the Rajya Sabha.

The Government has an obligation to uphold the right of dignity of Indian citizens. The Government has an obligation to ensure their safety, accommodation, their support services, and their equal participation in the social and economic life of our country and their rights to do so. Apart from these enabling rights, the Bill of course also calls to protect them from discrimination, discrimination they are suffering terribly. It puts an onus on the Government and local authority to protect them from cruelty, torture, abuse, exploitation and inhumane treatment. All of this is essential and the Bill provides various administrative, social and educational measures to create a conducive society for the natural development of these human beings who are citizens of India.

They also of course protect the rights of transgender children requiring their equal treatment on a par with all other children. We do not want transgender children to be separated from their parents. We want them to have their families with them. They should acquire the knowledge, the skills, the habits necessary for their normal personality development. Transgender children have been treated very badly. A lot of discrimination and cruel treatment has happened against them, sometimes even within their own families and we must, therefore, make sure that the law protects them in these circumstances.

Abuse of these people must be stopped as well. Therefore, we must encourage the participation of civilian aid organisations, all those NGOs that can come to the assistance of victims of abuse. At the same time, we do want to ensure that individuals can bring their complaints to the law and get themselves protected in this process. And I want to stress that promoting the social, educational, cultural, economic and health rights of a transgender person requires us to accept the provision in the Bill for inclusive education without discrimination, vocational training and of course skill development which this Government has set such great store by by even creating a separate Ministry of Skill Development.     They have also requested and this Bill provides 40 per cent reservation in educational institutions and Government jobs and of course various other provisions that I don’t need to repeat here.  How do we ensure these rights are upheld?  A National Transgender Welfare Commission is one step forward with similar Commissions at State level to support this Welfare Commission. Then there are Transgender Courts obviously because if there is still abuse or violence, people need to go to a judicial mechanism where there is sympathetic understanding of the specific problems of transgender communities. 

            All of this is there in this Bill.  The Rajya Sabha has already seen fit to pass it.  To my mind, it also requires the cooperation of the Treasury Benches to create a national policy for the benefit of transgender persons.  I am not encouraged by the conduct of the Treasury Benches just earlier in this afternoon in the context of the amendment not the abolition of Section 377.  The problem is that there is bigotry and unfortunately it finds a ready home in the ruling party. 

I do want to stress that there are opposite examples available in this country.  As a Member of Parliament from Kerala, let me mention what the State of Kerala has done.  It has actually adopted a State policy on transgenders.  I urge the Members of the Treasury Benches to pay heed to this with a view to considering a similar national policy for transgenders.  The Department of Social Justice of the Government of Kerala has adopted a policy for transgender persons in 2015 which provides for the self-identification of transgender persons, provides social protection and facilities such as education, health services, housing, water supply, sanitation, employment, public awareness including through the mass media and requires inclusive practices in Government departments, public offices, post offices, hospitals and the whole lot.  Kerala has even managed to establish separate cells in the prison blocks to protect transgender persons.  It is the first State in the country to do this. 

The Kerala Government, as a part of the State policy, has created social inclusion and sensitization workshops working with NGOs that support this community, counselling centres for victims of violence and exclusion, crisis intervention centres, support centres very much modelled on the one-stop crisis centres we have for women which is part of national policy, encouraging the Anganwadi workers and self-help groups to sensitize the parents of gender non-conforming children and youth and helping them to understand their children’s problems, capacity building initiatives to train caretakers and teachers in educational institutions, workshops and law-enforcing agencies, particularly the police, to prevent institutional violence by police against transgenders, and finally, it has established a State Transgender Welfare Board.  Why can’t the Government do something similar at the national level? 

Shri Siva’s Bill provides for such institutions and I want to say that in doing this, India will simply be bringing itself up at par with the rest of the world.  Let us not forget that the opening words of the Universal Declaration of Human Rights adopted as far back as 1948,  are very clear- "all human beings are born free and equal in dignity and rights."  That is what we are trying to give them.  Through my earlier unsuccessful attempt to change Section 377, it was very much to give the same freedom and dignity to the homosexual community as all Indians have and today this Bill before us gives all the protection to transgender communities that you and I enjoy as free citizens of India. 

In 2011, the United Nations Human Rights Council became the first UN inter-governmental body to adopt a wide-ranging resolution on human rights, sexual orientation and gender identity.  Resolution 17/19 expressed the Council’s grave concern at violence and discrimination against individuals based on their sexual orientation and gender identity and this is something in 2011 that we are now catching up with this Bill of 2015. 

          I do want to stress, if you look at Article 2 of the International Covenant on Civil and Political Rights to which India is a party and a signatory; “Each State, party to the Covenant, undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.  In other words, by discriminating against transgenders, by discriminating against homosexuals India puts itself in violation of Article 2 of the International Covenant on Civil and Political Rights.

          I would also like to mention Article 12, sub-clause (1) of the International Covenant on Economic, Social and Cultural Rights because that gives States the obligation to grant everyone the right to the enjoyment of the highest attainable standards of physical and mental health. 

And, the Committee on Economic, Social and Cultural Rights of United Nations has indicated that the Covenant proscribes any discrimination in access to health care and the underlying determinance of health on the grounds of sexual orientation and gender identity.  In other words, Mr. Chairman, we are simply granting people universally recognised human rights.

I do feel that the Government has woken up to some of this by coming up with its own version of the Bill.  At least there are indications of a version that they are consulting others on.  I am here today to speak on Shri Tiruchi Siva’s Bill as passed by the Rajya Sabha.  But I want to point out that the Government’s version of the Bill has some very diluting provisions which should not be encouraged and which in my view are inferior to the Bill that we are discussing right now.  For example, there is no provision for the establishment of National or State Transgender Welfare Commissions in the Government’s Bill.  As I have said, Kerala has already established one.  We cannot dilute something which has already happened and the Government becomes free of any accountability if  we have no Commission to enforce the law.  Then you are not accountable under the law and that is what happens.  It must be noted that the OBCs/SCs/STs/Women, all have Commissions to promote their rights. Why should not the transgender community?

          They are also very concerned about education.  I have mentioned this earlier because I have received a communication from a transgender person saying that equal access to education is fundamentally vital.  I am quoting him:

“We do not agree that we need to be rescued or rehabilitated since nothing is wrong with us.  Instead, there are problems with society’s respect for us.  Hence, we would prefer support for more education and livelihood opportunities. ”

          This is what they are asking.   They will find better opportunities than by giving rescue and rehabilitation approaches.  They say that they would prefer that the Government of India or the State Governments have sufficient consultations with the transgender community to understand what they really need.

          I also want to stress that it may look odd with regard to the right to marriage, inheritance and adoption but the fact is that marriage or marriage like benefits for transgender couples living together – they may share a home, maybe they cannot get married under our laws, maybe it is not possible for them to be coupled or partnered biologically – but they may want to live together, they may want to be each others’ primary care-givers, they might want to inherit, adopt and so on, and I think we should allow the law to protect their rights to have this kind of decent treatment. 

And the truth is that, I have already mentioned, we need to provide benefits to the children.  They are the future of our society.  If we cripple these children emotionally by mistreating them as children, we are depriving ourselves as a society of the contributions they can make in future.  I also want to mention practical matters like access to bathrooms, hospitals, public transport facilities and so on.

Let me conclude, Mr. Chairman, I can see you are getting concerned about the time.  I just wanted to stress that the problem with this Bill is, it is part of a much larger problem of colonial era legislation reflected in the Indian Penal Code, 1860 and its subsequent amendments in the 19^th century.

          Sir, you may be aware that our hon. Rashtrapatiji, Shri Pranab Mukherjee, in a speech on the occasion of marking the 155^thanniversary of the Indian Penal Code called for this Indian Penal Code to be comprehensively revised.  He said that it reflects a British era and Victorian 19^th century morality. It reflects conditions of colonial oppression and many of the laws such as the sedition law,  which I have brought before you in this House, reflects the desire of the colonial masters to deprive Indians of rights. 

          Therefore, our own Rashtrapatiji wants the Indian Penal Code revised.  It is in this spirit that I have earlier introduced an attempt to amend Section 377.  Today, we are discussing the rights of transgender persons.  It is a shocking thing to me that the Treasury Benches and that the Ruling Party of this country prefers to remain anchored to an outmoded Victorian standard of Penal Code rather than to the values of our own society, our own culture and thousands of years of Indian history which had given people of different sexual orientation and different gender practice a respectable place in our society.  Now unfortunately, we are saddled with a Government and a Ruling Party whose Members want to condemn them to the ghetto of discrimination, abuse and violence.

I plead with the hon. Members here and you, Mr. Chairman, to pass this Bill, as passed by the Rajya Sabha, to send from this House a proper signal to the rest of the country and to the nation that we belong to the 21^st century, that we are a humane society, that we would treat our people whoever they are equally.  Every Indian citizen will be granted the same rights and we would treat them with fairness, with dignity and with justice.

          I thank you Mr. Chairman.  Jai Hind.