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How the Trans Act and MTP Amendments 2021 Interact

Abortion, Queer Rights

April 2022

By Simran

What is gender-inclusive healthcare?

Gender-inclusive services make it possible for individuals in need of sexual or reproductive health services to feel at ease and protected. Gender-neutral washrooms, forms and paperwork including columns for ‘preferred pronouns’ instead of the two binaries, and adding gender identity to the non-discrimination policies are a few examples of inclusive healthcare practices that have helped queer people. Recognizing the person as a whole is at the heart of the development of patient-centered care. When we speak of such services, we do not simply focus on the design of the intervention and affirmative action strategies. These are necessary to ensure the integration of inclusive programmes into the developmental efforts that encompass every gender identity. We also focus on re-examining existing fundamental social structures and institutions that uphold exclusive services of healthcare and reforming them. This results in loss of power through various agencies of caste, class, race, sex, socio-economic backgrounds, and more.

The discourse surrounding gender-inclusive services have historically progressed in binaries, where we discuss men and women instead of the individual. Recently, there has been a growth in perspectives that focus on an unsexed discourse, keeping in mind the history of dissimilar societal positions for men, women, and queer identities. The discourse still refrains from using terms such as ‘citizen’ and is hesitant to use the term ‘individual’ as they are stereotypically considered to be male-oriented in its implications among traditional societal contexts. There is an urgent need to reform gendered systems that we have embraced since childhood and later realise are concepts we want to unlearn and relearn in our efforts to be inclusive and equitable.

 

A glimpse into India’s inclusivity in healthcare infrastructures:

When we look at India’s gender-inclusive health programmes, Tamil Nadu and Kerala stand out as one of the first states to have introduced comprehensive transgender welfare policies. In 2015, Kerala conducted a survey to map out the issues trans people face in their state and implemented a rights-based policy to comprehensively approach issues of healthcare, employment, education, violence, and political participation.

Tamil Nadu was the first state to establish a transgender welfare board that includes representatives from the transgender community itself. But while Kerala has provided free surgeries for gender-affirming surgery (SRS) to transgender people in public hospitals since 2016, Tamil Nadu has failed to implement its policies successfully.

In 2016, Himachal Pradesh moved to set up medical boards at the district and state levels for supporting transgender folks. The same was then followed by Jammu and Kashmir, but they faced vehement backlash on the existence of a medical board to determine an individual’s identity by offering ‘transgender certificates’.

 

How does the Trans Act fit into all this?

Equality in its widest context is frequently substituted for a narrower, more limited interpretation. Communities with varying interests frequently use the notion of equality abundantly while advocating for their personal agendas. This holds the potential to hinder the work done to support queer people in obtaining an equal position in society. Queer activists have been very vocal about how the central government’s Transgender Persons Protection of Rights Act 2019 does not comply with the NALSA judgment’s unique benefits.

The Trans Act calls for the formation of a District Screening Committee, that will include a medical officer and a psychiatrist, to identify an individual’s trans identity. The act denies self-determination of gender identity by stipulating a medical screening, which is deemed “progressive” but instead stigmatises trans issues and treats gender identity as a subject of external verification by District Screening Committees that encompass medical branches on the board.

It infantilises trans people and pushes them in more vulnerable positions by asserting that if a parent or immediate family member is “unable to take care of a transgender”, with no age requirement specified in the law, they should be transferred to a rehabilitation center. The law further neglects to administer affirmative action to rectify historic oppression and exploitation.

The law itself has often been called transphobic and discriminatory by various trans individuals. It neglects to address the institutionalised oppression faced by trans people in India through a rights-based attitude. Instead, the law suggests rehabilitation as a guideline, which in itself is completely discriminatory to transgender and intersex groups. This Act was widely protested against throughout the nation until 2019 and its repercussions further blur the guidelines and laws under which a trans person may avail of healthcare services.

 

Reproductive healthcare and the MTP Act.

Another concern for genderqueer people looking to avail of gender-inclusive reproductive healthcare facilities is the Medical Termination of Pregnancy Act. It is important to note that the amendment to MTP Act (2021) uses the word “women” throughout, although access to abortion services is critical not only for cisgender women but also for transgender, intersex, and gender-diverse persons.

The Medical Termination of Pregnancy Act states that the pregnant woman has to get the consent of one medical practitioner for pregnancy up to 20 weeks, two medical practitioners for pregnancies up to 20-24 weeks, and a medical board for pregnancies more than 24 weeks. Therefore, medical service providers have the power to make the final call on administering the abortion. Several accounts have been documented where the doctor has refused to let a woman obtain an abortion, whether it be for religious purposes, their personal bias, abortion offered only if the woman agreed to contraception or sterilisation, or demanding the spouse or parent’s consent.

While the MTP Act specifies that women don’t need consent from their parents or spouse to obtain an abortion, this is still practiced by various healthcare professionals. In many cases, informing a spouse or parent can put pregnant women at risk of violence. Requiring a doctor to authorise an abortion instead of allowing it based on the pregnant person’s consent is a violation of the Supreme Court’s jurisprudence of reproductive autonomy by the healthcare professional.

The MTP Act is exceedingly cis-heteronormative. There is no clarification provided for how queer individuals can access abortion services. It is incredibly concerning how women themselves face numerous issues while trying to access safe abortions in India; the reality of such is far worse for queer people. It raises various questions and concerns regarding how doctors would be trained to understand queer requirements and handle cases with sensitivity if they are trained at all. Several health care services, practitioners, and insurance providers do not offer gender-inclusive care, which would aid in closing the accessibility gap.

 

Conclusion

When we get down to understanding the implications of normalising the use of exclusionary language in public policies, it can lead to various detrimental consequences. While it may not be explicitly transphobic or hateful, it does equate to marginalised and oppressed individuals being further denied access to resources and safe healthcare facilities. Healthcare professionals are not only misinformed and prejudiced in their practice due to lack of training and cultural norms, but medical centres are also not equipped with proper methods to help queer people get the correct interventions they require.

Transgender, non-binary, gender non-conforming, and other genderqueer individuals need access to comprehensive reproductive health care as much as anyone else.

About the Campaign

This article is a part of a campaign that highlights the various barriers queer-trans* individuals face in accessing basic, abortion-based healthcare services and the role the MTP Act plays in it. It also speaks extensively of how these challenges affect the Indian demographic and the country’s current healthcare framework.

This campaign has been created by Simran, a Media Campaign Fellow with The YP Foundation.

About the author

Pursuing their Master’s degree in Applied Psychology, working as a Content Writer at The Swaddle, Copywriting at Lekh Haq, and graphic designing on the side, Simran (they/them) loves dipping their toes in every opportunity they can find. They were inspired to participate in TYPF’s SAFE Campaign to bring more attention to queer reproductive health issues.

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