My long bright black locks braided neatly to my waxed-waist, my emotions skillfully hidden in my whimsical smoky eyes; I outshine the shadows of their stereotypical judgments with my deep-red lipstick, I adjust my bra-step as his skeptical smile and lust-filled eyes fall on my body that somehow “fails to fit-in”. I’m a hijra, a kinnar, a shiv-shakti, a jogappa, a sakhi, a jogta; in short, a mislabeled incomplete human being, walking to the traffic-signal, clapping my hands a certain way( pretty much adhering to the protocols of your rich cultural heritage) towards my sympathizers to earn my daily-bread.
They’ve given me and my fellow-mates an umbrella-term, the transgenders, people whose gender-identities do not confirm with their biological sexes. Not all of my fellow-mates beg, some are involved in sex-business, some of us are provided education and job opportunities by NGOs, a Manabi in the field of Education, a Padmini in the Media, a Kamla and a Shabnam in Politics, a Kalki in the Entertainment arena and an outstandingly beautiful and talented Lakshmi exists right next door as well, but somehow thousands of us are still stuck in the dark dimensions of a society that restricts us from even ordinary access to education, health services and public spaces, violates our very being at every step and makes us question if we’re even entitled to basic civil rights in our isolated world of shrouded secrecy?
They say the Bade Babus have found a solution to this social-exclusion with a bill that aims to amalgamate us with the mainstream society. Their primary agenda of “inclusion” incorporates measures to facilitate education, employment, medical assistance and better accountability on the part of the authorities.
Do you mean, our families will no more shun us or regret our existence?
Do you also mean that we will not be forced to beg or work as bonded labor or sex-slaves?
Will we be ‘treated like the rest’ at our workplaces and educational institutions?
Will I not be expected to live in and as a gender that I don’t identify with?
So all these rights and opportunities are just a ‘screening-committee report’ and ‘identity-certificate’ away?
What about the bizarre criminal and personal-laws that don’t even recognize our existence?
Anyway the signal is green. Gotta go.
The Supreme Court (division bench of Justices K.S. Radhakrishnan and A.K. Sikri) pronounced a path-breaking judgment in National Legal Services Authority V. Union of India & Ors. , wherein it recognized various gender identities, included a third gender category in identity documents and directed the legislature to grant equal rights and protection to transgender persons, upholding the principles of freedom and equality. Since the 18th century and post-codification of personal laws in India, the gender of a person, assigned at birth, determined his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare.
The transgender community failed to confirm to this binary gender categorization, this stern continuum, and was thus left to live with absolutely no civil rights or codes that could guide and monitor their participation in any such social institutions. This judgment of the Supreme Court effectively voiced the miseries of the community and stated that gender identity is a basic aspect of self-determination, dignity and freedom and no one can be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy as a requirement for legal recognition of their gender identity.
“Psychological gender must to be given priority over biological sex.”
The Supreme court asserted that it is time now to follow the international Conventions with regards to the rights that should necessarily be conferred on the transgender community and to give due respect to other non-binding international Conventions and norms like the Yogyakarta principles that specifically address sexual orientation and gender identity and talk descriptively about the kind of abuse that this community has been suffering from. May it be sexual assault, invasion of privacy, extrajudicial executions, arbitrary arrest, rape, denial of free speech, medical abuse and ignorance in the eyes of housing and family laws. The Apex court emphasized on the need of incorporating these principles as benchmarks before a draft bill was framed.
The court reasserted that, “No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”
The definition of ‘sex’ under Articles 15 and 16 was extended from biological sex to psychological sex or gender-identity and an absolute restriction was put on any kind of discrimination on the ground of sexual-orientation. This judgment on the whole condemned the idea of policing gender and constraining a person’s wholesome development and progress on the ground of his immediate-identity.
The Transgender Bill of 2016 unfortunately hampers the essence of the NALSA judgment rather than strengthening its prospects. The Bill talks of a committee of gatekeepers who shall be entrusted with the right to determine who can or cannot be a transgender through medical inspection but is silent on any guidelines for the setting up of Transhealthcare Centers in Government Hospitals. The current bill has lumped transgender and intersex persons into one category rather than expanding the scope for intersex persons’ rights and has no separate clauses that cover areas and concerns that the Intersex communities have. The trans community is often subjected to violations by the uninitiated medical professionals and arms of the state, where trans, gender-queer, genderfluid, non-binary, intergender and pre-op trans persons are subjected to intrusive body searches, stripping, filling up of breasts and genitalia and with this bill, such acts will now have the sanction of the state and will be contradictory to the spirit of the NALSA verdict. The entire idea of “hijra-families” which exist in thousands of numbers all over the country has also not been addressed, giving the bill a thoughtless and impractical shape.
The current bill does not talk about reservations of transgender people as ‘Other Backward Classes’, maximum punishment for sexual-offences against the community is too less to be taken seriously, leave aside police violence that’s not even remotely mentioned in the bill. The Bill has not been successful in meticulously exhibiting the atrocities that a transgender is put to and in-turn fails to provide a precise grievance redressal mechanism for such forms of exploitation.
This community has been severely abused for decades now, channelizing it yet again by putting the community under constant scrutiny and expecting them to produce a document that certifies how “unusual their identities are”, is in fact a step backwards and is sure to encourage favoritism and corruption. The bill appears to be just another tussle to try and shrink the community into caged-brains and a box of rigid cultural orthodoxy instead of a reformatory measure to uplift the community and walk ahead on the path of democratic tolerance.
The objectivity and insensitivity with which the State seems to be unleashing the needs and wants of the most deprived section of our society amazes me. A radical overhaul of this very ignorant and inadequate bill with fundamental modifications after a standing-committee debate is necessary.
– Suvi Jain
(The author is a 4th year law student at Aligarh Muslim University)