Analysis

Trans*forming the Constitution

By Ajita Banerjie

1 June 2018

India’s Transgender Persons Bill might undo several years of progressive judicial precedent.
New Delhi, 1994. Photo: R Barraez D´Lucca / Flickr

New Delhi, 1994.
Photo: R Barraez D´Lucca / Flickr

In 1884, a transgender person in Morarabad district of northern India was arrested by police after the person was found crossdressing and singing with a group of women. Given the name ‘Khairati’ in the case files, the person became one of the first to be prosecuted under the infamous Section 377 of the colonial-era Indian Penal Code (IPC), which criminalised “carnal intercourse against the order of nature” – an umbrella term for non-procreative sexual acts. Queen Empress v Khairati was initiated by the police without a complainant. They appeared to have been monitoring the person who was suspected of being a eunuch, leading the presiding judge to commend “the desire of the authorities at Moradabad to check these disgusting practices.”

Intolerance of the state and society towards India’s transgender people continues to this day, as does that law. The nature of discrimination ranges from impediments in accessing education, employment and healthcare, to extortion, harassment, arbitrary arrests and sexual violence. The ostracism forces many to drop out of schools and universities, and pushes some to seek a livelihood through begging or sex work, making them likely to fall foul of the law. While the concerted efforts of activists led to a progressive judgement in 2014, the legislation currently being considered by the country’s Parliament threatens to roll back some of the gains.

The Transgender Persons (Protection of Rights) Bill, which was ostensibly drafted to finally bring about an end to this tragic status quo was first debated in Parliament in 2016, over a century after Queen Empress v Khairati. The first draft of the bill drew flak from members of the transgender community, civil-rights activists and legal experts for making a mockery of the very thing it claimed to be standing for – the protection of transgender persons – and reversing significant strides made in the recent past in ensuring greater rights for transgender people in India. A Parliamentary Standing Committee, appointed to examine the bill in the wake of the criticism, made several recommendations in 2017 to significantly change the original bill. While the text of the updated bill has not been made public since the bill is waiting to be tabled in the Parliament, news reports suggest that only some of the recommendations have been incorporated. Still, with the current status of the bill remaining unknown to anyone but its architects, the rights of the transgender community hang in the balance.

Landmark decisions

In view of the historical injustice done to the transgender community, on 15 April 2014, the Supreme Court of India made a landmark judgment that recognised the third gender and affirmed the constitutional rights of transgender persons. The decision was in response to a 2012 public-interest litigation filed by the National Legal Services Authority (NALSA) – a statutory body created to provide free legal aid to disadvantaged sections of society – to ensure their constitutional rights and protection under the law. NALSA v Union of India expanded the definition of ‘person’ in Article 14 of the Constitution and pronounced that:

Hijras/ transgender persons who are neither male/female fall within the expression ‘person’ and are, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

The Court expanded the definition of ‘sex’ to include gender identity under Articles 15 and 16 of the Constitution – which guarantee non-discrimination, and ensure equality of opportunity in public employment on the grounds of, among other things, sex – thus, expanding the ambit of non-discrimination and equality provisions to transgender persons. “The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female,” the Court argued, “but [is] intended to include people who consider themselves to be neither male nor female.” The Court’s reading of ‘sex’ in NALSA included “one’s self image, the deep psychological or emotional sense of sexual identity and character.”

The NALSA verdict has significantly transformed the legal landscape relating to transgender rights in the country. Soon after the verdict, the Madras High Court expanded the ambit and  applicability of the NALSA judgement to female-to-male transgender persons as well as intersex persons. In giving the verdict of Jakuline Mary v Superintendent of Police, Karur, the judge wrote that NALSA was concerned only with transgender women, and not with other categories of sexual minorities, such as transgender men. The petitioner, who was an intersex person and identified as female, approached the court seeking admission in the police force as a female candidate. She had earlier been terminated from the service after being categorised as “transgender by birth” following a medical checkup. If she chose to identify herself as a woman, the High Court stated, “she is a female in the legal parlance and thus she is eligible for appointment as a woman police constable.” Other cases followed, which upheld the right of transgender persons in accessing public-sector jobs and required that institutions like the police force and public banks amend their recruitment process so as to accommodate transgender identities as per the directions in NALSA.

Courts have also stepped in where the rights of transgender persons were violated by their own family, as was seen in Shivani Bhat v State of NCT of Delhi in 2015. The Delhi High Court upheld the rights of a 19-year-old transgender man facing illegal confinement and harassment by his family. Deferring to NALSA, the judgment recognised that “the trauma, agony and pain, which members of the transgender community have to undergo continues unabated.”

NALSA has also been cited to ensure access to social security in India. In Ashish Kumar Misra v Bharat Sarkar, 2015, the Allahabad High Court held that transgender persons be allowed recognition as ‘head of the household’; only those officially recognised as such are entitled to ration cards, which are necessary for obtaining subsidised food grains. In another important step in ensuring the economic rights of transgender people, following a recent petition filed by a transgender woman in April 2018, the Centre amended the Income Tax Rules of 1962 to allow transgender persons to be recognised as an independent category of applicants while obtaining a Permanent Account Number (PAN) for their tax-related transactions. In the absence of this provision, many transgender persons faced financial losses during the demonetisation in November 2016, when Prime Minister Narendra Modi announced a ban on currency bills worth INR 1000 and INR 500.

Reversing progress

Despite the transformative NALSA judgment and others that followed it, court directions are often disregarded, misunderstood or rejected altogether by law enforcement officials. In the absence of a law on gender recognition, transgender persons in India continue to have to navigate through myriad administrative barriers to achieve basic legal recognition of their gender. Given this context, the Transgender Persons (Protection of Rights) Bill 2016 is a far cry from NALSA, and contains provisions that could undermine the existing protections extended to transgender persons by the courts.

News reports indicate that the reworked Transgender Persons Bill no longer contains the objectionable definition of transgender people as “neither wholly male nor female, a combination of female or male, or neither female nor male.” The amended bill, according to one news report, defines a transgender person as one “whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-women (whether or not such persons has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy).”

However, it is not clear what amendments have been made on the crucial question of self-identification. Among the contentious proposals made in the original bill is a District Screening Committee – which would include a medical officer, a psychiatrist or psychologist, a government officer and a representative from the transgender community – that will ‘verify’ the gender identity of applicants who wish to obtain a certificate of identity. NALSA had declared that a person could maintain their self-identified gender, which was aimed at stopping the egregious practice of subjecting transgender persons to intrusive medical examinations to ascertain their gender identity. One news report from March 2018 notes that the reworked bill no longer contains “the provision of recommendation required from district screening committees for issuing certificate, if a transgender [person] undergoes a surgery to change his or her gender.” But it is not apparent how this affects transgender people who self-identity as male, female or transgender, but do not wish to undergo surgery or any other procedure. Many activists working in transgender rights believe that such a practice – requiring the individuals to be examined by medical professionals – is a human-rights violation and against the NALSA judgement, and could lead to the pathologisation of sexual minorities.

Vihaan Peethambar, a transgender-rights activist from Kerala, shared the trauma he went through while getting his gender markers changed in his identity documents. “Even though I had undergone gender-affirmation surgery and had all my documents in place, I was asked to strip in front of the government-appointed doctor and was asked several uncomfortable questions that could trigger dysphoria for a lot of transgender persons,” Peethambar said.

In another case, Dr Sameera Jahagirdar, a Puducherry-based medical professional who recently applied to the passport office to get her name and gender markers changed in her existing passport, was asked by the authorities to present a ‘surgery certificate’, which should not be required as per the Supreme Court’s directions in NALSA. “Any insistence for SRS [sex re-assignment surgery] for declaring one’s gender,” the NALSA decision reads, “is immoral and illegal.”  Further, not all transgender people seek to identify as transgender; some choose to self-identify within the binary as male or female.

The original draft of the bill also does not provide for the right to marry and adopt, depriving transgender persons of fundamental rights under Article 14 of the Constitution. If they do get married or live with their partners, existing laws make them vulnerable to harassment under Section 377 of the Indian Penal Code. The bill doesn’t take into account the recommendations made by the Parliamentary Standing Committee which acknowledged that “transgender persons remain at risk of criminalisation under Section 377,” and that the bill must “at the very least recognise the rights of transgender persons to partnership and marriage.” There is no indication that the reworked version of the bill has any changes on this front.

This silence on the part of the government has put transgender people in India in a precarious position. Recently, Bengaluru-based activist Akkai Padmashali became the first transgender woman to officially register her marriage in the state of Karnataka. Recognising the vulnerable position her marriage puts her in, she has filed a petition in the Supreme Court challenging the constitutionality of Section 377 of the IPC as it is in direct conflict with NALSA. This is not the first challenge to this section. In a seminal judgment in 2009, Naz Foundation v Govt. of NCT of Delhi, the Delhi High Court held that Section 377 is violative of Article 21 of the Constitution as it criminalises an individual’s core identity and personhood solely on account of their sexual orientation. However, in 2013, the Supreme Court reversed this verdict saying that the matter was a legislative and not a judicial issue. While challenges to the section continue to be made, it remains on the statute books.

Silence on violence

The status of transgender persons in criminal law with respect to sexual violence and rape was not addressed by NALSA and remains unacknowledged in the Transgender Protection Bill as well. In Naz Foundation, the Delhi High Court had identified how Section 377 legitimises violence by targeting transgender persons disproportionately. Similarly, the Justice Verma Committee – constituted in the aftermath of the Delhi gang rape in 2012 to recommend amendments to the criminal law for reforming anti-rape laws – suggested that victims of sexual assault be gender neutral in the impending amendment of the criminal law. The definition of rape under the Indian Penal Code is still affixed to a binary notion of gender, where men and women carry static roles of the perpetrator and victim respectively. The Justice Verma Committee’s report had rightly noted that since the possibility of sexual assault on men and transgender persons is a reality, the law must be amended to protect LGBTI people. In March 2013, when the Criminal Law Amendment Act did pass, it did not take into account these recommendations of the committee, leaving transgender persons without any legal recourse in case of sexual assault.

The Transgender Protection Bill fails to plug this gap in the judicial protection of transgender persons who might be victims of sexual violence. While the original version of the bill makes “sexual abuse” punishable, it does not define the acts that constitute sexual offences, sexual assault or rape in the case of transgender persons. Moreover, there is no clarity on how such acts would interact with Section 377 of the IPC that criminalises all penile-non-vaginal, non-procreative sexual acts between individuals. These loopholes in the law make transgender persons vulnerable to sexual abuse and unequipped to access the justice mechanism. An example of that was seen in a case from Pune in 2017. A 19-year-old transgender woman was gang raped by four men who were all released on bail because the victim fell outside the definition of man or woman as per the law. The public prosecutor in the case said that it was difficult to establish that a transgender person was raped by four men. “The law states that Section 377 of the IPC is intercourse against the order of nature with any man, woman or an animal. There is no mention of a third gender. We could have shifted the case to Section 376 but even that became difficult because there is definitive mention of a gender.” She added, “The judge had to give the benefit here to the accused.”

Legalise and legitimise

The strict adherence to gender binary in much of Indian law not only legitimises violence and bigotry against transgender, intersex and gender-non-conforming individuals in India, but also reinforces the hetero-patriarchal nature of its legal framework. Indeed, this has been acknowledged at the highest level of the country’s jurisprudence. “Non-recognition of the identity of Hijras/transgender persons,” Justice Radhakrishnan of the NALSA judgment wrote, “denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.”

A progressive legislation can, therefore, right the many wrongs done to the transgender community in India by legitimising, and not just legalising, their identity. If gender non-conformity is the basis for violence against transgender persons, the law must respond to it by moving beyond the gender binary. Based on what we know about the Transgender Protection Bill, it falls short of capturing the spirit and text of a series of judicial developments in the civil rights of sexual minorities. As the Justice Verma Committee reflected, “India cannot deny the citizens the right to be different.”

~Ajita Banerjie is a researcher on gender and sexuality rights in India. She can be reached at [email protected]gmail.com.

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