Transgender rights: A regressive policy

By Brinda Das

The transgender rights movement in India has had a rather rocky trajectory. The 2014 Indian Supreme Court judgment, the NALSA judgment, 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 became the object of criticism. The bill was later revised on December 5, 2018, but lapsed with the dissolution of the Lok Sabha for general elections.
Finally, the much-awaited Transgender Person’s (protection of rights) Bill passed by the Rajya Sabha on November 25, 2019, arrived. Transgender rights activist Grace Banu declared it a “murder of gender justice”.
Why did this highly anticipated Act spark 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 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.

The Hijra community

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, owing to the recurrent ambiguous nature of the Transgender Rights Act, there is no elaboration as to the facilities provided at these centres, what they will entail etc. This is just the kind of comforting reassurance a minor needs after being rejected by or running away from their homes.
Second, 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, 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 Babusapallya where eight transgenders 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 chelas (disciples). Anjali believes that these communities will, with time, transform into more flexible and less hierarchical structures. “In the recent years, many Hijras 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,” she said.
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 that 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.
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, and 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

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 the 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.
As 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 judgment was a precedent for states to follow in their treatment and legislation regarding the transgender community while the Chhattisgarh government took it upon themselves to implement the judgment. I believe it is crucial that all states put pressure on their governments to create state-welfare boards which can devise schemes and policies more suitable and specific to a niche and diverse community like the transgender.
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 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 and concerns which 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. Second, all the concerns, like reservations, which have been left outside the periphery of the act can be addressed.
All hope is not lost and there is still plenty of scope for improvement and progress for the transgender community.

(The author is senior copy editor, The New Indian Express, Bangalore)

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