Trans Rights are Human Rights

Kirti Bhargava

The Golden Hour for a Meaningful Discourse on Transgender Rights in India

The year 1852 in India is painfully remembered for the brutal murder of Bhoorah, a trans woman, in northern India’s Mainpuri district, near present-day Agra. Speculations were rife that her former lover had killed her in a fit of rage. What was striking however was that the British judges didn’t think the case was worthy of a full-fledged investigation. This incident wasn’t merely a standalone wanton case of social exclusion and assault. Rather, it prompted the British Indian government to castigate the community as a whole by categorising them as a ‘criminal tribe’ under the Criminal Tribes Act of 1871. 

The victim’s death in the case was treated as far-reaching evidence for the immorality of the eunuchs and thereon, the British launched an assailing campaign aimed at erasing their public presence moving towards gradual cultural elimination. They were penalised with hefty fines or thrown into prisons for wearing female clothing and ornaments, often looked down upon as sexual deviants and unnatural prostitutes. 

More than a century later, as we acclaim June as Pride Month, this article aims to initiate a meaningful discourse around the recently legislated Transgender Persons (Protection of Rights) Act, 2019, and what it has to offer today.

The genesis for transgender rights in India was first laid formally by a landmark judgement of the Supreme Court in 2014. In the NALSA V/s Union of India case, the Supreme Court ascertained the community’s rights for self-perceived gender identity and acknowledged the need for a ‘Third Gender category’ in official records. Subsequently, a private members’ bill was introduced in the Rajya Sabha in 2014 by Member of Parliament Tiruchi Siva. This bill looked at a range of entitlements for the community,  in areas of health, education, skill development, and employment opportunities as well as protection from abuse and torture. It also proposed a 2% reservation for trans persons in educational institutions and government jobs. This draft bill was received somewhat well by the community but with the dissolution of the 16th Lok Sabha, the bill lapsed.

Once again, in 2016, a modified version of the same was tabled in Lok Sabha by the Union Minister for Social Justice and Empowerment. This has today become the embodiment of what we know as the Transgender Persons (Protection of Rights) Act of 2019.

At the very onset, this marks the Indian Government’s first such effort to institutionally recognise Transgender people in India. As per the 2011 Census, their official population stands at around 5,00,000 individuals. The act defines a transgender person as “one whose gender does not match the gender assigned at birth. It includes trans men, trans women, persons with intersex variations, genderqueers, and persons with socio-cultural identities, such as kinnar, jogata, aravani and hijra.”

“By clubbing intersex and trans under a common umbrella, the very definition fails to cast a cynosure upon gender fluidity”

This descriptive aspect has been widely criticised by activists and members of the community as vague. By clubbing intersex and trans under a common umbrella, the very definition fails to cast a cynosure upon gender fluidity. Members of the community reject the nomenclature of ‘Transgender’ for the bill and instead suggest a more comprehensive title ‘Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill,’ elucidating a clear distinction between the terms Intersex and Transgender in an acerbic manner.

Secondly, it prohibits discrimination against transgender people in spheres of education, employment, healthcare, accords them the right to movement, to reside in their households or own property, and so on. The act also nudges the government to undertake welfare measures for the community for their rescue and rehabilitation, vocational training, and create self-employment opportunities. Additionally, it stipulates that the state should arrange for separate HIV surveillance centres and sex reassignment surgeries.

“A lack of enforceability in the anti-discrimination clause renders it rudderless, relying excessively on the moral compass of the wrongdoer”

While it seeks to be progressive in letter, it is arguably truncated in spirit. A lack of enforceability in the anti-discrimination clause renders it rudderless, relying excessively on the moral compass of the wrongdoer. A recently collated study by the NHRC suggests that 99% of transgender people have suffered social rejection on more than one occasion, even by their own families. 96% have been denied jobs and thus are forced to take to vulnerable livelihood choices such as sex work or begging. Around 60% have never attended school, and those who did faced major discrimination. 

Extrapolating these figures to their lived experiences necessitates the need for better enforceability of laws. Other welfare measures settle perhaps as a post-dated cheque at the disposal of the state. With a meagre budgetary allocation of Rs. 1,00,00,000, it remains to be seen how the implementation of the other welfare measures unfolds. 

“The very need for certifying one’s identity places an implied external authority and onus of proof on the individual, defeating the premise of self-determination”

The act also enlists provisions for obtaining a certificate of Trans identity from the District Magistrate (DM). A revised certificate must also be obtained in case of a sex reassignment surgery. The very need for certifying one’s identity places an implied external authority and onus of proof on the individual, defeating the premise of self-determination. In doing so, it also leaves scope for bureaucratic misuse and harassment, as there exists no window for appeal against an arbitrary order of the DM. What is also noteworthy is that it fails to concede to the problematic reality of forcible sex reassignment surgeries, specifically on minors. The recent Madras High Court judgement banning such medical procedures on intersex infants (aimed at empowering the individual’s consent) must be paid heed to here.

Furthermore, there is also a clause for setting up a National Council for Transgender Persons (NCT) comprising a representation of five members from the community. The council offers some ray of hope, however, the transgender representatives remain in minority and it will augur well for their voices to be sufficiently amplified through this forum. It remains to be seen how far this end will be achieved.  

“This conundrum of Trans abuse cases gets further complicated in a system where the community already faces systematic exclusion, discrimination, and sidelining within the legal and judicial recourse”

Finally, another positive step is identifying offences against the community and affixing penalties for the same, ranging from six months to two years imprisonment, along with a fine. Four such categories of offences have been identified: Denial of use of public places, forced or bonded labor, forced eviction from household as well as physical, emotional, sexual or economic abuse. However, not only are the safeguards offered inadequate, but the community has also expressed grief over the lighter sentences being facile, that may fail to create much on ground deterrence. This conundrum of Trans abuse cases gets further complicated in a system where the community already faces systematic exclusion, discrimination, and sidelining within the legal and judicial recourse. 

To sum up, essentially the concerns with the act need to be looked through a prism holding multiple perspectives. The first of these is the legal-constitutional validity of the act. The features appear violative of Article 14 (right to equality), 15 (prohibition of discrimination on grounds of sex), 16 (equality of opportunity in matters of public employment) and 21 (right to a dignified life and right to livelihood encapsulated in the right to life and personal liberty) of the constitution. 

For instance, while the Act penalises organised begging (badhai tradition at weddings and childbirth is a long-standing cultural practice amongst the Hijras), it does not provide for any alternative and meaningful avenues for greater inclusivity in public employment opportunities. The demand for affirmative action, which the 2014 Bill catered to, has been left unacknowledged in the 2019 act. The Supreme Court, recently taking cognisance of these loopholes to the law, has issued a notice to the Centre against a plea challenging the constitutionality of the Transgender Persons Act.

“At the very onset, the definitional component fails to appreciate the distinctions of gender, sex, and sexual orientation”

A second viewpoint offers a theoretical and feminist critique wherein the hierarchy of genders finds itself penetrating pieces of legislation. At the very onset, the definitional component fails to appreciate the distinctions of gender, sex, and sexual orientation. The mandatory provision of placing trans individuals in rehabilitation centres, as they are left dejected by their families, needs a rethink. It renders them devoid of any agency whatsoever, treating them as ‘subjects of care,’ at the hands of the state. Confining them to such centres also paves the road towards ghettoisation of the community. Under the garb of such differential treatment (in contrast to the treatment of cis men and women), it fails the NALSA judgement’s assertion for self-determination and accords transgenders a lesser status as citizens in society.

The third and final standpoint places a moral-ethical burden on us, as members of a just and humane society. In measuring the transgender identity on a scale as opposed to the binary male and female identity and placing the former at the mercy of the state machinery is violative of the individual’s dignity. The compulsion and hassles of obtaining paperwork for ascertaining a very personal component of our lives are pedantic, dehumanising, and largely dystopic.

For these very reasons, the passage of the act has been vociferously opposed by the community. The 12th annual Pride Parade 2019 in Delhi witnessed widespread protest and agitation against what was collectively deemed to be a ‘Regressive and half-hearted piece of legislation.’ The international NGO, Human Rights Watch, condemns it as failing the community on grounds of fundamental rights for self-identity and urges the Indian government to amend it in line with international standards. The World Medical Association’s as well as the United Nation’s standards for transgender rights mandate the separation of medical and legal processes for reassignment of gender identities.

“But as citizens, we must also realise that a meaningful discourse on LGBTQ rights in India goes beyond this benchmark limit and needs to be more far-reaching for fruitful gains”

While the legislation remains within the radar of SC hearings, for now, it may be pointed out that the court proceedings will gain limelight simply for determining whether the legislation passes the minimum legal-judicial cut off for being held valid. It will only deal with the first category of our concerns. But as citizens, we must also realise that a meaningful discourse on LGBTQ rights in India goes beyond this benchmark limit and needs to be more far-reaching for fruitful gains. 

We seek to stand miles away today from a state-sponsored attack on the community in British India and aim to step towards a more liberal and inclusive ethos. The focus should be on facilitating more dignified and equitable opportunities to ensure a more central role for the community. Better education and employment opportunities, gender sensitisation of law implementation bodies, extending legal, medical, psycho-social aid when needed, and involving trans voices in policy framing can help build more nuanced visibility for the community within the public spheres. Suffice it to say, the golden hour has ripened after a long wait for a state-led intention for the upliftment of the transgender community. It should be progressively assiduous for it to tailor-fit to their needs better.

Kirti is a graduate in Sociology from Lady Shri Ram College. A passionate learner, dancer and writer (in that order), she aspires to make an impact by widely articulating her views on socially relevant issues. She also occasionally takes breaks from her routine to mentally rejuvenate by trekking the Himalayas. 

Design by Hemashri Dhavala

Humanity or Spectacle?

Aditi Kumar

The author, along with her class, visited the Mandoli Jail Complex in New Delhi, India. The following article elucidates the collective experience of the class, and an attempt by the author to find structures in the treatment of the undertrials. 

Placed away from society, the prison stands like a fortress surrounded by moats, where the distance between the prison and the civilised world mirrors the isolation of the cognitive behaviour of its inmates from the rest of the society. 

The visit is perplexing. I wonder if I am witnessing the genuine humanity that is surviving in its quarters, or am I the audience of a show, that has been prepared with dexterity by its guards? Even with excellent training, should we enter the private lives of the prisoners and take notes of their daily misery? Does having committed crimes eliminate their right to privacy? 

Referred to as UTs, undertrials are imprisoned humans that are still in the middle of court trials. There are two kinds of undertrials. There are those believed to have committed a non-bailable offence and so remain in custody or jail until the court makes its decision. And then there are those believed to have committed a bailable offence; they can leave the prison while their case is in trial but against a proprietary amount that must be submitted on their behalf to the court to ensure their return for trial. 

In practice, however, there are four kinds of undertrials. First, those who are believed to have committed a bailable offence and can afford to leave the jail on bail for the duration of their trial. The second kind is those who are believed to have committed a non-bailable offence. The third comprises those who are believed to have committed a bailable offence but cannot afford the bail, are uninformed of other remedies and are lodged in prison. And finally, those who may never have been informed of the reason for their incarceration. We meet the latter three kinds at Mandoli. 

“We are here to know everything about them, but they may not know anything about us”

We enter a beautifully painted and sparkling clean enclosure. A mat is laid on the marble floor where the undertrials sit. Chairs for us are arranged to face them, establishing the difference between us. As we sit, I wonder which one of us is the audience. We are here to know everything about them, but they may not know anything about us. We ask them about their income, their health, their education, their families, but they only want legal counsel from the lawyer who is accompanying us. They ask us nothing, yet continue to talk amongst each other as we are made to savour the biscuits made by them at the prison factory. 

“Twenty-three of them had not been presented before a magistrate within 24 hours of their arrest; they were denied a fundamental right guaranteed to all citizens”

We ask questions about the conditions of the inmates. We find that in a set of fifty-five undertrials, twenty-three of them had not been presented before a magistrate within 24 hours of their arrest; they were denied a fundamental right guaranteed to all citizens. About half of the undertrials are uneducated. We are trying to get answers through a show of hands, but the sum of opposing variables is always very less. I realise many are not answering, or raising their hands too slowly or too fast. 

A man approaches the lawyer for salāh (advice). While explaining his case, he breaks down crying. When the man speaks, he carefully chooses his words to explain his situation. The lawyer responds in a speedy answer, his tone reflecting his disbelief that the man is not aware of his fundamental rights and the legal remedies before him. 

This happens again. Two men consult the lawyer. Their tones differ, but they all hold their hands behind their backs. They don’t have any legal knowledge and need advice. The lawyer maintains the same tone and indifference with them all. Upon asking the undertrials if they received good legal advice as soon they were incarcerated, they reply in a uniform chorus that they were left in the dark, often even about why they were in prison in the first place. 

“A visit to the legal centre in the prison tells us that the lawyer who is accompanying us and who seemed irritated with the barrage of legal questions is actually supposed to be regularly advising the prison inmates and undertrials”

A visit to the legal centre in the prison tells us that the lawyer who is accompanying us and who seemed irritated with the barrage of legal questions is actually supposed to be regularly advising the prison inmates and undertrials. The legal aid officers have their proofs in a register full of thumbprints of the prisoners. But the response of the undertrials does not reflect this. 

Most activities at the complex are performed by those who knew them before they were arrested. A person fluent in the use of computers before he was arrested, teaches others. The same is true for the tailor who continues to sew the clothes of others in prison, the musician and artist who now carry on the same activities and teach them to other inmates. The inmates are free to spend their time as they like, though when asked about what they did to spend time in jail one of them responded that they cut vegetables for the cooks.  

A noticeable takeaway from the 2003 Prison Manual was that inmates should be provided with new skills and work experience that will help them lead a more productive life in society once they are released. The activities available at the prison should provide a real choice to the inmates and should consist of skills that are required in the present technological age. The Manual also states that these activities should be taught by trained prison officials to the inmates. 

What we see in the Mandoli Jail is that the activities are the imperative of the inmates who practice the art for themselves and in rare cases, teach others. It ceases to be vocational training for them. What they followed professionally before the arrest, becomes their working activity. The Prison Manual, on the other hand, requires a mixture of both working and vocational training. Seeing the scale of output the skilled inmates produce, I doubt if they have the opportunity or incentive to learn another activity. 

“As we stroll in one of the wards, we notice that most inmates are keeping to the hallways and enjoying the winter sun”

There are very few trainees learning new crafts. As we stroll in one of the wards, we notice that most inmates are keeping to the hallways and enjoying the winter sun. Even the tremendous production of grain in the chakki room is marred by the fact that the producer and the worker helping him earlier worked in the same profession. 

As our group walks out of the many security layers of the prison, I cannot help but think of French philosopher Foucault’s connection of the power and knowledge nexus with the prison system.  Many undertrials were either unaware of their arrest, or of legal remedies available to them. Only one of the fifty-five UTs had studied till the postgraduate level. Around half of the UTs (who in most cases would also coincide with those being the sole providers of their family) earned less than rupees ten thousand (about $132) a month. They cannot provide the bail amount for the alleged offence. 

“NINE MEN HAD BEEN ARRESTED AND BROUGHT TO THE SAME PRISON MORE THAN ONCE”

The CRPC 436 allows those without the means to pay bail to be released after a week of the bail order as the court keeps from discriminating among undertrials based on their assets. But how far this equality lasts in practice can be seen by the high number of undertrials that fill prisons all over the country. Around 70% of undertrials are usually proven innocent after their trial but are left to languish in prison till then. This lack of access to resources and knowledge stands true to Mandoli Jail as well. 

A final comment on Foucault’s emphasis on separating the “other” or the “dangerous” from the rest of the society as was seen in the undertrials that we met. Nine men had been arrested and brought to the same prison more than once. They were part of the group that raised their hands for believing to be arrested without knowing why. Therefore, they were being passed along the same cycle repeatedly, without learning any new skills, a striking similarity with the American incarceration system. 

Aditi Kumar is a law aspirant who recently completed a postgraduate diploma in Conflict Transformation and Peacebuilding. Reading and painting in her spare time, she aspires to challenge the structural dimensions of injustice through her education.

Design by Hemashri Dhavala