What Not to Wear

Arti Kadian

Examining how clothing traditions have sought to control women’s identity and autonomy in India.

Content Warning: Violence Against Women, Rape, Victim-survivor shaming quotes

On 19 June 2020, the Gauhati High Court passed a judgement granting a divorce to a man because his wife refused to wear sindoor (a vermillion red powder worn in the part of their hair by married Hindu women). The order grabbed attention as it stated: “her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant (husband). Such a categorical stand of the respondent (wife) points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant.” 

“Other facts withstanding, the order has exposed the belief pushed by the age-old patriarchal system that the identity of a Hindu woman is defined by her relationship with men.”

Other facts withstanding, the order has exposed the belief pushed by the age-old patriarchal system that the identity of a Hindu woman is defined by her relationship with men. In this case, it was her marital status, signalled by her wearing sindoor that legitimised her relationship with her husband. 

A Family Court in Mumbai granted a woman divorce on grounds of cruelty as her husband objected to her wearing a kurta and jeans, forcing her to wear sarees. When she refused to do so she faced humiliation and harassment. The case reaffirmed the norms applicable to women concerning their clothing choices and illustrated the varied consequences of a pushback against the existing system.

In May 2019, a video of a middle-aged woman went viral for verbally harassing a group of young women for the length of their dresses. She associated their attire with a heinous crime like rape, stating that “All ladies who wear short or naked dress should get raped”. Meanwhile, recent reports on the Bois Locker Room – a group for sharing images of underage girls and jokes on sexual assault and rape on Instagram – highlighted the sexist misogynistic and deeply entrenched patriarchal attitudes towards women.

“Clothes have been used as weapons by institutions, religions and societies to oppress women’s freedom. From a very early age of a woman’s life, there are persistent reinforcements and reminders of do’s and don’t rules imposed regarding clothing and choices.”

Clothes have been used as weapons by institutions, religions and societies to oppress women’s freedom. From a very early age of a woman’s life, there are persistent reinforcements and reminders of do’s and don’t rules imposed regarding clothing and choices. These rules vary over religion and caste, with disproportionate unfairness to minority communities leaving women with no space for expression, control or decision-making. 

“Women have always been subjected to intense scrutiny, with strict implementations of ‘covering up’ to protect them against ‘evil intentions’.”

Women have always been subjected to intense scrutiny, with strict implementations of “covering up” to protect them against “evil intentions”. Other reasons justifying this misogynistic practice are those of “honour of community” and “traditional norms”.

Alpaxee Kashyap, a Ph.D. scholar in Women and Gender Studies, rightfully notes that clothes represent culture, the protector of which is the state. She argues that women have used nudity to resist injustice and as a tool of protest. She elaborates using the example of a 22-year-old woman who walked in her underwear in Rajkot, Gujarat to protest against police inaction to her complaints. The complaints were against her in-laws who were emotionally and physically harassing her, demanding a dowry and a male offspring. 

Globalisation brought western clothing and attires to India. Modernisation along with an increased focus on women’s education and the inclusion of women in the formal labour market contributed to Indian women choosing western garments over traditional clothing. However, this created friction with the patriarchal set up of Indian society which saw it as “against ‘Indian culture’.” The choice of attire, when western, was categorised as being “vulgar”, and the woman wearing it as “immoral”. 

“A grocery store owner in Delhi expressed: ‘But here girls can’t be like the girls in the west. They have to dress decently and watch where they go, who they are with’.”

An article by The Sydney Morning Herald presents the various views of men regarding rising sexual assault cases in India. Many have found ways to blame the “western culture”. A grocery store owner in Delhi expressed: “But here girls can’t be like the girls in the west. They have to dress decently and watch where they go, who they are with”. Mohan Bhagwat, leader of the Hindu organization, Rashtriya Swayamsevak Sangh said: “Such incidents[rapes] happen due to the influence of western culture and women wearing less clothes.” 

The argument of Indian vs western culture falls flat because according to fashion historian Toolika Gupta, in India there were no written dress codes. This concept was imposed by the British colonisers. The terms “blouse” and “petticoat” were introduced by colonisers, coexisting with some Southern as well as Bengal regions where women were traditionally bare-chested. These findings negate the argument that ties Western clothing to “immodesty”. Gupta also explores pre-colonial clothing attires adorned by women. Early representations of women have shown them with minimal clothing. 

“Clothing for women has also varied with religion and caste in India with discrimination more pronounced for minority categories.”

Clothing for women has also varied with religion and caste in India with discrimination more pronounced for minority categories. A Livemint article, titled, “The changing fabric of Dalit life” (21st April 2017) talks about how caste barriers also defined the rules surrounding attire for example what Dalit women could wear. As an example, the article mentions the period of 1800s where men and women of the Nadar community of Travancore were forced to keep their upper bodies bare to show respect to the upper caste Hindus. This was termed as the “breast tax”, named after the fine required to be paid on violating the rule. Vivek Kumar a professor at Jawaharlal Nehru University, interviewed in the article explains: “Dalit women were involved in midwifery—so whatever was there which was soiled during childbirth, was given to them. Dalit women also performed duties at the time of death, so whatever was left by the dead, they would get that.” The article mentions that men from lower caste communities also demanded that women be conservatively dressed to prevent upper caste men from their villages from sexually objectifying them. 

“The conversation surrounding women’s clothing and attire has even found its way in arguments abetting sexual violence.”

The conversation surrounding women’s clothing and attire has even found its way in arguments abetting sexual violence. In the 2012 Nirbhaya rape case, one of the rape accused named Mukesh Singh was interviewed for a BBC documentary “India’s daughter”. He majorly used the character assassination in his defence, that a “decent” girl would not be roaming on the streets at night and would not wear “wrong” clothes.

“While this horrific incident shook the consciousness of the Indian society, the victim-survivor shaming that accompanied the initial investigation proved the apathetic response to sexual violence.”

While this horrific incident shook the consciousness of the Indian society, the victim-survivor shaming that accompanied the initial investigation proved the apathetic response to sexual violence. The case highlighted illogical “victim shaming” reactions which eventually normalise our society’s misogynistic response to sexual violence against women. This was demonstrated when a biology teacher in Kendra Vidyalaya in Raipur, proclaimed and taught her co-ed class that “wearing revealing clothes incites crimes like that of Nirbhaya”. 

On similar lines, a HuffPost article by Chetan Bhagat, attempted to examine the reasons for rape apologists to question the character of victim-survivors. He proposes it as a “coping mechanism” for those who seek comfort in the belief that victim-survivors are responsible for what happened to them and so their family members are safe by dressing conservatively. Another reason Bhagat explains is the denial of female sexuality that is expressed through clothing.  

Bhagat may argue that the imbalance of sexual power between the two genders could be a reason for violence against women, however, on exploring further one cannot discount the systemic injustices meted out to women on their relationship with their bodies. Clothes have been a means to further the objectification of women as property of men. This regressive treatment of women reflects how women’s identity,  choices and right to self-expression have been controlled by Indian society and used as a tool to judge their character.  Feminist movements have highlighted this issue and aim to provide women with equal social, legal, political and economic rights enjoyed by their male counterparts.

Arti is an Economics Major, keenly interested in development economics especially in the area of gender. Currently working as a risk consultant, she is also an avid reader and a yoga enthusiast. She aims to work at a social consultancy that focuses on education of girls. 

Design By Daya Bhatti

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The Farce of Self-Defence

Ananya Agarwal

Why promoting self-defence is a negligent and weak attempt to solve the rape crisis in India

Content Warning: Rape and Sexual assault 

Rape and everyday instances of sexual violence are a lived experience for Indian women. In 2018, the Thomson Reuters Foundation ranked India as the most dangerous country in the world for women. This follows from the 2012 gang rape that shocked the nation, made headlines globally, and brought the conversation around sexual violence to the forefront. 

One would assume that since then, the number of rape cases in India would have gone down. However, as per the Crime in India 2012 report released by N.C.R.B. (National Crime Report Bureau), the number of reported rape cases rose from 24,923 in 2012 to 33,356 in 2018. These numbers are limited to rape and do not include reports of other forms of sexual violence, such as an attempt to rape, sexual harassment in different forms and, stalking, etc. It is important to highlight that most cases of these various forms of sexual violence go unreported. 

Under these circumstances, we see many advocating for self-defence as a solution to rape. A prominent example is a statement by the Delhi High Court advising girls to learn self-defence. There are several instances of Indian actors advocating for self-defence. When asked about the threat of harassment and assault that women face on a daily basis, they suggested that women should learn how to defend themselves. Actor Sushmita Sen shared her own story of being harassed recently by a 15-year-old boy and how she was able to detect him out of a crowd and confront him because of her self-defence training. She advised girls to learn self-defence.

“It is important to understand how sexual assault is rooted in a display of dominance and power over women”

The argument for self-defence goes back to the 1960s and the 1970s when it was seen as a means of empowering women. If women could learn to protect themselves against their attackers, there would be a decline in the number of rape cases. It is important to understand how sexual assault is rooted in a display of dominance and power over women. Tearing down the patriarchal mindset was and remains a humongous task. It may have been easier for women to take their security and well-being into their own hands because the system failed to help them. 

“The idea of self-defence is problematic for many reasons, primarily because it gives in to the idea that brutal attacks are impossible to stop, that they can ‘happen’ to anyone, anywhere, and therefore, the victim-survivors should stay alert and be well equipped to defend themselves”

Even though women’s position in society has arguably improved since the 1960s, the self-defence argument remains popular in the mainstream. It is problematic for many reasons, primarily because it gives in to the idea that brutal attacks are impossible to stop, that they can ‘happen’ to anyone, anywhere, and therefore, the victim-survivors should stay alert and be well equipped to defend themselves, at all times. This leads to transferring the responsibility from the attacker onto the person who is being attacked – creating a very clear shift of blame.

On invoking the idea of self defence, like in the bygone decades, we make the debate about a victim-survivor’s ability to protect themselves. However, it is not a question of whether a victim-survivor is able to protect themselves when they are in that situation. It is a question of why they find themselves in that situation in the first place. If we think that self-defence can prevent rape, we must question if victim-survivors will stop being targetted by rapists once they learn how to defend themselves. Will learning self-defence prevent an attack? The simple, and yet harsh answer is no.

“More often than not, the attacker is known to the victim-survivor”

When we think of rape, what comes to mind is a vicious attack by a stranger in a dark alley.  But more often than not, the attacker is known to the victim-survivor. It takes place in their own house and in their bedrooms. As per the data provided by N.C.R.B. (National Crime Records Bureau), in 2018, 94% of all sexual offenders were family members, friends, neighbours, employers, live-in partners, etc. In such cases, the victim-survivor may not be able to use the strategy of self-defence while under attack. This can be due to many reasons, for instance, the internal conflict caused due to familiarity with the attacker can lead to a range of feelings like fear, betrayal and bewilderment.  

It is also imperative to emphasize the concept of re-victimization. An individual who has experienced sexual assault earlier in their life may struggle with post-traumatic stress disorder (P.T.S.D.), which may cause physical as well as psychological trauma. When faced with a similar situation again, their brain and body may react by shutting down to prevent further trauma rendering them incapable of defending themselves in any other way. Research shows that it is common for the victim-survivor to freeze in cases of first-time assaults as well. Sexual assault is not a natural interaction wherein people can apply their common sense and know how to react. It can be an extremely traumatic event and advocating for self-defence makes the victim-survivor answerable for it.

“The lack of acknowledgement that a person who is being raped may already be in a physically vulnerable position and self-defence may not be an option at all is a big blind spot when considering it to be the solution”

Moreover, the use of self-defence can result in escalating the situation and lead to even more harmful consequences. The lack of acknowledgement that a person who is being raped may already be in a physically vulnerable position and self-defence may not be an option at all is a big blind spot when considering it to be the solution. Victim-survivors often have to make the difficult trade-off between defending themselves and potentially aggravating the attacker(s) further, risking immense pain and even more severe injuries. 

In 2018, it was found that every fourth rape victim in India was a minor. According to the National Crime Records Bureau data, 34.7% of all crimes against children are rape cases. Sexual offenses also take place, for instance, against physically and mentally disabled, as well as aged people. Cases of sexual assault have surfaced while people have been in custody, by police personnel, public servants, jail staff and others. Last week, a custodial rape case came to light in the state of Orissa where a 13-year old tribal minor was repeatedly sexually assaulted by the Inspector-in-charge. Citing self-defence as a solution to rape and sexual assault does not address the plight of minors, physically and mentally disabled, elderly, who may not have the physical capacity required to defend themselves.

“Much like many other cited solutions, some of which seek to restrict and confine people within societal boundaries “walk around in groups”, “show no skin”, “don’t step out after dark”, self-defence also does not provide a concrete solution”

Today, many understand that sexual assault is immoral and look down on it, but they are not cognizant of why it’s wrong. Before we instill fear in potential sex offenders, it is essential to educate them about why it is wrong and how they could be violating someone and impacting their life in immeasurable ways. Much like many other cited solutions, some of which seek to restrict and confine people within societal boundaries “walk around in groups”, “show no skin”, “don’t step out after dark”, self-defence also does not provide a concrete solution. 

While the idea of self-defence may be attractive, it is an unsatisfactory attempt to solve a larger and more foundational issue. The attention, instead, should be on challenging the systemic conditions that allow rapes to happen as frequently as they do while letting rapists get away without justice. It is critical to focus on creating awareness about sex education and consent as well as fighting the stigma surrounding sexual assault and supporting victim-survivors.

 A management consultant by profession, Ananya is a part of team Bol. She enjoys experimenting with different creative mediums and seeks out all things chocolate.

Design by Hemashri Dhavala

Female Genital Mutilation: “a practice like this has no place”

Navika Mehta 

While world leaders may have pledged to eliminate FGM by 2030, the current commitment and actions are not enough

On April 22, as the world grappled with the COVID outbreak, the Sudanese government approved an amendment that criminalized Female Genital Mutilation (FGM). Anyone who performs FGM now faces 3 years in prison and a fine. This ruling is momentous because with one of the highest rates in the world, in Sudan, nine out of ten girls and women have undergone some form of FGM. The practice is, however, not limited to Sudan. It is prevalent in around 30 countries across Africa, the Middle East, and Asia and also in migrant communities from these areas living in Europe and North America. FGM is thus a global issue and has affected an estimated 200 million women.

“It has no health benefits and leads to severe physical complications and mental health issues”

The World Health Organisation defines FGM as a procedure that “involves the partial or complete removal of female genitalia or other injury to the female genital organs for non-medical reasons.”  It has no health benefits and leads to severe physical complications and mental health issues. It is categorised into 4 types depending on the variability of removal. Type 1, clitoridectomy, which is the partial or total removal of the clitoral glans, and/or the prepuce. Type 2, excision, removal of the clitoral glans, and the labia minora, with or without labia majora. Type 3, infibulation, cutting, or removal of part or all of the external genitalia and stitching or narrowing of the vaginal opening. Type 4 is any other type of harmful procedures to the female genitalia for non-medical purposes like burning, scraping, or piercing.  

In India, Type 1 and Type 4 forms of FGM,  known as “Khatna” or “khafd”,  is practiced in the Bohra Community. The Bohras are a sect of Shia Ismaili Muslims based in Gujarat, India.

In 2015, Masooma Ranalvi, co-founder of We Speak Out, a survivor-led movement, along with other survivors launched an online petition that calls for “the end of FGM in India”. The petition has gained over 200,000 signatures to date. We Speak Out has since launched several community-focused campaigns, tried to engage with the clergy, and also petitioned the Indian Government, in particular, the Ministry of Women and Child Development, and the National Commission for Women among other bodies. They also work with the Bohra community internationally to create awareness about FGM and fight for the rights of Bohra women.

Speaking to Bol Magazine, Ranalvi explains: “It’s a practice of a form of control over a woman’s body, it’s a form of subjugation, it’s a reinforcement of a patriarchal notion that women should not be allowed to experience sexual pleasure and should be controlled.” She expresses that “For a modern society where we are talking of women in power, women opposing the discrimination against women, where we have constitutions across the world which talk of equality, free from discrimination, a practice like this has no place.”

In 2017, a Public Interest Litigation (PIL) was raised to the Supreme Court (SC) by Sunita Tiwari under Article 32  (for enforcement of a fundamental right) of the constitution. The SC questioned the basis of FGM as an “essential religious practice”. While Tiwari condemned it under Protection of Children from Sexual Offences Act 2012, the respondents argued it should be protected under the right to practice and propagate religion under, Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and Article 26 (Freedom to manage religious affairs). The case has since been referred to a larger bench with no further developments.

In 2018, a quantitative study surveying 94 participants across five states in India was conducted by Anantnarayan, Diler & Menon. It found that FGM was prevalent amongst 74% of girls aged seven and above, of all respondents in the Bohra community. This study also found a case of FGM in the Sunni Muslim community in Kerala. 

“FGM has no religious basis”

Although it is majorly identified with Islam, FGM has no religious basis. In Africa, there is evidence that shows Jews, Christians, Muslims, and indigenous groups practice FGM. It is known to have existed since before Christianity and Islam arrived in Africa.  Nonetheless, it is a “harmful cultural practice” that is in violation of the Universal Declaration of Human Rights (UDHR) along with 1966 ICCPR, 1979 CEDAW. In 2012, the UN General Assembly Resolution (A/RES/67/146) banned FGM worldwide. 

“Moreover, survivors also suffer psychological trauma that includes anger, PTSD, depression, anxiety, memory loss, nightmares, and feelings of betrayal”

FGM may also be referred to as “Female Circumcision”, however, it must not be compared to “male circumcision” because it has far greater physiological and social implications. Physical complications arising from it include fever, severe pain, infections like tetanus, urinary problems, excessive bleeding or hemorrhage, genital tissue swelling, shock syndrome, and death. Moreover, survivors also suffer psychological trauma that can include anger, P.T.S.D., depression, anxiety, memory loss, nightmares, and feelings of betrayal. The social implication of FGM that leads to its persistence is that it continues as a social norm and tradition to ensure girls are socially accepted and restore or maintain the family’s honor and status.

When it comes to actively engage in ending the practice by speaking out, it is not easy for survivors of FGM. It is particularly difficult to speak out because of the social and psychological consequences. Ranalvi explains: “There’s a lot of trauma which is associated with it, it’s not easy to talk about it, there’s pain that’s associated.” Ranalvi herself, at the age of 7, was taken to a dirty apartment in Bhindi Bazaar in Mumbai. While she recalls the horror of that day, it was only later in life that she understood that she was subjected to FGM. She then connected with other survivors across the world to start a movement to end the practice. 

The secretive nature of FGM further prevents it from coming into the public eye. According to Ranalvi, people within the community are often unaware of this practice that has existed over generations moving from “mother to daughter”.  She compares it to instances of child sexual abuse that are often hidden within the family. But while child sexual abuse is widely acknowledged to be wrong, FGM is still seen positively by those who continue to subject girls to it.  Pluralistic ignorance is another factor that may lead to the continuation of this social norm. There may be people who have chosen not to practice FGM but may have not openly or publicly expressed their choice. This situation may lead to members assuming that others continue to practice it and thus may accept it as the norm. Thus, the conversation started by We Speak Out within the community and outside it, is essential to removing the secrecy associated with the practice. 

“Those who speak out against FGM face backlash and social boycott from the community”

Those who speak out against FGM face backlash and social boycott from the community. Masooma Ranalvi explains that this is a huge deterrent for those want to speak out because of broader social implications: “in our society and not just in my community, even in other communities, women are always bottom of the rung, women have never been given the power to speak, women have never been given the right to make decisions about their bodies and there is a complete control which is there and a women speaking out against something is never accepted…the kind of social pressures under which a woman works and lives are tremendous.” The threat of social isolation as a consequence of speaking out against the practice makes it even more difficult.

However, it is not simply the broader societal pressures that lead to the continuation of FGM, women have also perpetuated it through generations. “The biggest challenge is understanding how patriarchy controls the minds of women.” Highlighting the fact that it is women who continue this practice, Ranalvi states that the biggest opponents of the movement are also women. “It’s the women who take their daughters, and it is precisely these women, a section of these women who today have become supporters of this practice, who are supporting this practice and not willing to question it.” 

To end FGM, Ranalvi emphasises that there is no one solution: “It’s very deep-seated, it’s traditional, it’s cultural, it’s religious, it’s associated with women, it’s very patriarchal, so it is difficult to dislocate and dislodge it but laws are important and have their place in the scheme of things but laws alone are not going to be able to eradicate this practice, we do need to work with awareness, work with education and work within communities.”

“The fight to end FGM is thus a fight in which everyone should take an active part, regardless if it affects you or not”

The fight to end FGM is thus a fight in which everyone should take an active part, regardless if it affects you or not. Ranalvi states that: “we have to all as human beings fight against anything which may be against the human rights of anybody. It may not be my human right which is affected but it may be someone else’s human right which is affected and I’m equally bound to raise my voice against it”. The practice of FGM is a violation of girl’s and women’s human rights and has been condemned by international treaties, conventions and several national legislations.

The urgency of actively addressing FGM is reflected in a recent report published in March 2020 by Equality Now, End FGM U.S. Network, and End FGM European Network.  It provides evidence that FGM is practiced in 92 countries. The purpose of the report is to highlight that FGM is practiced globally and expresses the need to advocate for a global response. The researchers have cautioned that the report is still an underestimation of figures and the real numbers may be much higher.  They have concluded that while world leaders may have pledged to eliminate FGM by 2030, the current commitment and actions are not nearly adequate to meet this deadline. 

Key recommendations of the report include strengthening the global political commitment to end FGM, increase resources and investment to end FGM and support survivors, strengthen the evidence base through critical research, enact and enforce laws and national policies, and improve the wellbeing of survivors by providing critical support and services. 

In Ranalvi’s words: “It has to go beyond the narrow boundaries of a community or country and has to be a bigger broader platform.” 

Note: While this article refers to survivors of FGM as girls and women, it is important to note that not all survivors of FGM identify as girls and women.

Navika is the Editor of Bol Magazine and created this platform to inspire conversations and action.

Design by Hemashri Dhavala

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. 

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