India’s Regressive Policies on Transgender Rights

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– Samarah Mamaji

The transgender rights movement in India has had a rather rocky trajectory.  The 2014  Indian supreme court judgement, the NALSA judgement, that recognised transgender as a third gender for the first time, was a major impetus to the creation of codified rights for the transgender community. The government in 2016 introduced its own bill to protect transgender rights, but soon become the object of criticism. The bill was later revised on December 5th, 2018, but lapsed with the dissolution of the Lok Sabha for general elections. Finally, arrived the much-awaited Transgender Person’s (protection of rights) Bill passed by the Rajya Sabha on 25th November 2019. Transgender rights activist Grace Banu declared it a “murder of gender justice”.

Source: latestlaws.com
Source: latestlaws.com

What about this highly anticipated Act sparked a considerable level of resentment and rejection? With the aim of uncovering this very question, and to gain a deeper insight into the community and its perception of the Act, I met with Anjali, a transgender woman and advocate for transgender rights working with The Humsafar Trust, a community-based organisation addressing the various concerns of the LGBTQ community in India.

 

°All Hail the Nalsa Judgement

Anjali believes conditions were more favourable before the Act. She believes the real gem and positive milestone in the history of transgender rights was the NALSA judgement, passed in 2014. The legislation in the 2019 Act was in direct violation and contradiction with the NALSA judgement. The transgender community received this judgement with great joy and hoped to see it manifest in the Act. The judgement made provisions for self-identification, reservations in education and employment, and urged the set-up of state-based welfare committees to address transgender concerns.

Anjali spoke proudly of Chhattisgarh and dubbed it as one of the most progressive states in India for transgender individuals. Chhattisgarh implemented the NALSA judgement by allowing transgender individuals the right to self-identification, providing them with pensions, lifelong housing facilities and making tangible reservations in education and employment for transgender individuals. The state also has a welfare committee dedicated to address transgender concerns and sensitize the masses towards transgender people. I wondered then, why the Act did not include the provisions made in the NALSA judgement- Was this an intentional move or born out of ignorance and sheer negation? Neither of the two possibilities bode well.

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Now, let’s dig deeper on why the transgender Act has failed its community. First off, for an Act to be truly transformative it must be easily accessible to its target population. The act fails in this regard. For an individual to avail the rights detailed in this Act, they must first acquire a transgender person certificate, stating that they are indeed a transgender individual. Fair enough, right? Well, no. The process to acquire this certificate is deeply problematic. The Act says that a transgender individual “shall have a right to self-perceived gender identity”. However, the way to acquire this identity is a two-step process. First, the individual must apply for a transgender certificate from their district magistrate, before which he or she must be diagnosed with gender identity dysphoria. Then, the certificate holder must apply for a “change in gender certificate”, to legally change their identities to either female or male. This second step requires the person to show proof of their medical documents to indicate that they have undergone the sex reassignment procedure. The district magistrate must then “be satisfied with the correctness of such certificate”. The “correctness” of such certificate, what are these parameters for the assessment? Talk about vague terminology.

This procedure is so obviously troubling on many levels. To begin with, how is forcing someone to undergo a sex reassignment surgery in line with giving them the opportunity for self-identification? The NALSA judgement clearly makes way for self-identification, which means that a transgender individual may obtain their certificate based solely on their declaration as one. It is worth noting that the right to self-declaration is susceptible to abuse, an individual can claim a trans identity to avail the special benefits made available to the community. When I voiced my concern to Anjali her reply was matter-of-fact and fairly blunt, “Regardless, running the risk of abuse is not a justifiable premise to deprive the community of its fundamental right to self-declaration”.

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Source: Reuters

Next, the Act essentially forces a transgender individual to undergo a sex reassignment surgery to be legitimate. The United Nations stresses that no laws should impose mandatory medical inference in regards to anything. To make matters worse, there are no guidelines as to how the surgery should be carried out, this cancels out the liability of the medical professional performing the surgery should any damage occur. This level of ambiguity is unforgivable. It also doesn’t speak of any sponsorship or financial recourse for the surgery. Anjali was most baffled by the lack of elaboration on this front, “Most trans-people have been persecuted by their own families, and have run away, living minimalistically, how are they expected to pay for such an expensive procedure? What about the Hijra community, mostly consisting of individuals from the lower rungs of society, what will they do?”

Lastly, be sure to note how the Act conforms and limits individuals to the gender binary since the sex reassignment surgery will result in a sex change as either male or female, and the identity card will validate the identity of either a trans-women or trans-man, unlike the NALSA judgement, that left the gender spectrum free and open by allowing for self-declaration of gender identity, as it should be. Ironically, the bill contradicts its very own existence, by making the process to avail these rights so cruel and complicated. Without the transgender certificate, these rights cannot be availed. The very stepping stone to acquire these rights is incredibly inaccessible.

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Just when you thought it was over, the legislature comes back with worse. The Act does not make any reservations for the community in education or employment. How does the government expect to see the community progress on any level, if it does not make tangible reservations for them? As we all know, with any marginalised sect of society comes a great deal of prejudice and rejection. To combat this, and to sensitise people, as well as to mobilise the community, reservations are a must, the very lifeline of empowerment and progress. Anjali herself has struggled with employment. Being a mass media student in college, she had to apply for a few internships. She recounts how she was rejected from all these jobs, while firmly believing that her merits qualified her for them.

 

°The Hijra Community: The Good, the Bad, and the Ugly

The law states that “every transgender person shall have a right to reside and be included in their household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.”

First off, owing to the recurrent ambiguous nature of the Act, there is no elaboration as to the facilities provided at these centres, what they will entail etc. Great, this is just the kind of comforting reassurance a minor needs after being rejected by or running away from their homes.

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Secondly, this legislation totally ignores the alternative structure already in place as a viable option for these individuals- the Hijra community. The Hijra community is a part of India’s rich cultural history. Hijra’s, the term used for transgender individuals in these communities, are considered demi-gods and to wield great power in traditional Indian mythology.

“The Hijra community formed as an alternative to biological families, young transgender women were run out of their homes, and had no other recourse, these communities were and are the need of the hour”, says Anjali. These communities have a hierarchical social structure and culture of their own, like the community in Kamathipura where 8 transgendered individuals live under the protection of their guru, Zeenath Pasha. They find safety in their community and the freedom to express their identities.

I came across instances of violence and exploitation in these communities, acts of assault from the guru to their Chela’s (disciples). When I asked Anjali what she thought of this, her reply was, “There are good and bad people everywhere, there are some good gurus and some corrupt ones, the case with every and any social set up.” Anjali believes that these communities will, with time,  transform into more flexible and less hierarchical structures, “In the recent years, many Hijra’s are speaking up against the ills committed inside these communities, whereas previously things were very confidential and rigid. But nothing can beat the support provided in these communities.”

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Source: USAID Bangladesh

I wondered about the transgender individuals who do not resonate with the Hijra community and would, therefore, be hesitant to join. To this, Anjali suggests that a choice be provided to minors, to either enter the Hijra community or opt for the alternative in the law.  I felt quite neutral in my stance in response to this legislation. But, I do believe, the Act and its legislations should be designed and modified from the perspective of the transgender community. The stance of the community in response to this legislation is unanimous, and pretty clear – they want the law to acknowledge these alternatives as a resort. This is, of course, is not to say that an act should operate on the whims and fancies of its target population. The purpose of a legislature designed for a minority group is to be the force of balance. To do this, there needs to be empathy to balance the needs of its target population with the rest of its population and legislations in place. Unfortunately, the needs of the transgender community have so clearly not been taken into consideration.

The government claims they had transgender representatives during the drafting of the Act, and voting in the two parliaments. There is no evidence to support this claim, and the community representatives have conveniently not been named, nor has any representative stepped forward to validate this claim. The problem with this act is that it was impersonal and therefore plays out inadequately and negligently.

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Mangti, or begging, is a traditional form of income in the Hijra community. A Bill in 2016 criminalised this practice. This Act decriminalised Mangti. At first, I was apprehensive as to whether this was a good move, on one hand, it was a sign of respect towards the Hijra community by not disrupting its longstanding tradition, on the other hand, it could encourage complacency among the community. Anjali, however, stressed that it was a good move, but only in the context of this poorly designed Act. Since the Act makes no formal reservations for the community in employment, it would not be fair or sustainable for them to take away their primary source of income.

°Get Up, Stand Up, Stand Up for Your Rights

Should a trans-woman or man be able to avail the same legislations available to their cisgender counterparts? Well, this can be a tricky one. Anjali’s stance was relatively straightforward- while the needs of a transgender individual and their cisgender counterpart may not be the same, they do coincide on certain fronts. She believes these coinciding needs should be applicable to a trans-people as well. In practice, the transference of these legislations may bring up its own complexities. “Regardless, these can be worked through,” maintained Anjali. For instance, special reservations made for cisgender women as well as social and religious minority groups in education and employment can and should be transferred to their transgender counterparts.

You’re probably pondering the fate of Chhattisgarh in light of this new Act? Unfortunately, they can no longer sustain their self-identification provision, which is in direct violation of the Act. The bright side, however, is that they can continue to address the ambiguities and concerns the act has so conveniently left outside the periphery of the law through their state welfare boards.

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I wanted to know the favourable conditions in Chhattisgarh that allowed for such progressive treatment of transgender individuals, hoping these parameters could serve as an exemplar for other states to follow, to my inquiry Anjali simply replied, “A progressive government.” The NALSA judgement was a precedent for states to follow in their treatment and legislation regarding the transgender community, and the Chhattisgarh government took it upon themselves to implement the judgement. I believe it is crucial that all states put pressure on their governments to create state-welfare boards who can devise schemes and policies more suitable and specific to a niche and diverse community like the transgender.

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Above and beyond legislative action, there needs to be sensitisation towards the community. Let me simulate a hypothetical situation where reservations are made for transgender individuals in employment. Will the individuals’ co-workers respect their preferred pronoun? Consider the plight of a transwoman, which washroom will she use, the male or female? Imagine the discomfort such situations can create.  These intricacies cannot be tackled solely through legislation. People need to be sensitised towards and made aware of the needs of transgender individuals so they can be better integrated into society. Change of this kind starts early. Children should be exposed to non-binary gender identities from a young age, not only will this prevent intolerance but it will also hinder confusion.

Anjali tells of how she struggled to find her gender identity because of a lack of awareness and benchmarks or role models in society. “I was a man who felt and expressed himself like a woman. I thought I was gay for the longest time, it didn’t feel right, but that was the only other alternate identity benchmark available to me. It was in college that I first heard of the concept of transgender, and it clicked, this is who I am!!”

 

°To Sum it Up

While the Act seems like a convenient appeasement strategy and very impersonal towards the community it was designed for, hope is not lost. The very ambiguity of the Act can be used against it, concerns that have merely and ambiguously been glossed over can be redressed and reconstructed. For example, the design and execution of these rehabilitation centres can be structured by transgender representatives and activists for the betterment of the community, since there are no pre-existing guidelines or elaborations on the above in the Act. Secondly, all the concerns that have been left outside the periphery of the act can be addressed, like the concern of reservations.

All hope is not lost- quite the opposite, there is still plenty of scope for improvement and progress for the transgender community.

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All images used in this article belong rightfully to their original owners.

Featured Image Attribution: The Guardian

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