Despite all its praises and misgivings, one of the ways a judgment like this which lays such heavy emphasis on State responsibility to include trans* persons into ‘mainstream society’ becomes ‘landmark’ is how it gets translated into easily accessible policies and opportunities. One of the recent judgments (July, 2015) deliberating on trans* person’s inclusion has been Sumita Kumari v. State of West Bengal from the Calcutta High Court. One might dismiss this three page long judgment as being ordinary, but the ways in which state actors and administration interpret the rights set under NALSA, this judgment becomes a striking point in showcasing how the imagined rights get reflected upon the lower judiciary.

The petitioner in the Sumita case is a “member of the transgender community” and had complained for not being considered for a government job which was exclusively reserved for women. Considering whether the denial of that post to the petitioner would amount to discrimination or not, the court ruled in negative saying that a trans* person, just like men are not eligible for the post reserved for women only and that, “it would have been discriminatory if two out of the three genders of the human species were considered eligible to apply for engagement in respect of the posts-in-question to the exclusion of the transgender community members”.

Talking about sex based discrimination laws in India and how they get constructed by the judiciary in different ways, Ratna Kapur and Brenda Cossman point out (p.56) that the formal approach to equality often neglects any analysis of substantive inequality between men and women, i.e.. They say that, merely looking at whether men and women are similarly situated or not, several factors determining the disadvantages faced by women get side-lined. Analyzing series of cases based on sex based discrimination Gautam Bhatia notes that the point of enquiry solely being based on the grounds of discrimination on ‘sex only’ by the courts should also have been around the rubric of the meaning of discrimination. How could one then see a trans* individual’s right only in terms of them being similarly situated as men and/or women?

While understanding the discrimination against trans* persons, it becomes very important to realize how the already existing objective categories do get used. In the absence of any legislation which addresses remedy to violence faced by members of trans* persons in any capacity, the way in which individuals negotiate the ambiguity of law to help themselves is quite telling. Vyjayanti Vasanta Mogli, a human rights activist working with Telangana Hijra Intersex Transgender Samiti (THITS) talks about how the organization is trying to tackle the cases of sexual and non-sexual violence and assault against hijra women by filing criminal complaints using sections from the Indian Penal Code (IPC) which are generally used by cis-gendered women. Use of Sections such as 354 (‘Assault or criminal force to woman with intent to outrage her modesty’), 354A (‘Sexual harassment and punishment for sexual harassment), 509 (‘Word, gesture or act intended to insult the modesty of a woman’) of the IPC clearly represent how trans* women try to legally frame their sufferings.

Gowthaman Ranganathan, a human rights lawyer working with Alternative Law Forum says that legally, in the light of the fact that NALSA gives the right to a person to self-identify their gender regardless of undergoing Sex Reassignment Surgery, trans* women could very well avail of such laws and there shouldn’t be an onus on them whatsoever, to prove their gender identity before the police if and when they choose to file a criminal complaint. At the same time, however, Gowthaman cautions that these gaps in the law become very difficult to read and apply where Female to Male (FTM) trans* persons seek criminal recourse. If one were to apply the same logic, then they would inevitably have to rely on Sections such as 377 which include completely different ingredients as opposed to a criminal assault.

The debate of using the already existing law is of course much bigger. The use or non-use of laws meant only for women by trans* individuals has been opposed by many in the women’s group. For instance many members of the women’s group opposed the gender neutrality of sexual assault laws in the Parliamentary Standing Committee Report and the 2013 Criminal Law (Amendment) Ordinance. Similarly Ashley Tellis points out how the demand for gender neutrality to a large extent neglects the fact that violence becomes a continuing site through which women have known sexuality. Akkai Padmashali, a human rights activist in Bangalore and Founding Member of Ondede, says how preposterous judgments like Sumita are and such decisions are completely in contempt of NALSA. She points out how many trans* individuals have successfully claimed their rights as women and men and in fact they want to claim such rights as women or men. The gender binary, therefore, despite being repeatedly challenged by activists and lawyers does not become completely diminished or obsolete. Ranjita Sinha working with the Association of Transgender/Hijra in Bengal on the other hand emphasizes the need to articulate trans* rights outside the paradigm of the binary. She says when the sensitivity of dealing with violence against women itself is severely lacking, then framing trans* women’s right within that domain poses multiple problems.

Is this issue just about strategizing sufferings within the law then? Although a lot of individual States within India are addressing the demands of several groups through their individual Transgender Boards, the ambiguity of the law with regard to addressing sexual violence against trans* individuals shows how difficult it gets for people to claim their rights. Despite NALSA, cases such as Sumita show the lack of understanding of multiple disadvantages and discrimination faced by a class of people. The denial of a trans* person to a woman’s post, therefore, becomes a way in which every experience get legally fitted into the third category as devised by the law. Despite coming off as a glorious judgment in which an individual would be given agency over their genders, in just a sentence or two that agency gets silenced.

Orinam thanks the SAIS Center for Transatlantic Relations at Johns Hopkins University for permission to republish this post from the Equality Blog.

Kang, Akhil. 2015. Disciplining Trans* Bodies: some cases from Malaysia and India. Orinam.net
Retrieved on mm/dd/yyyy from https://new2.orinam.net/disciplining-trans-bodies-malaysia-india

In a recent (2015) Malay High Court decision [1], the court rejected the application of a trans* individual, Vasudevan Ramoo, to change their gender from male to female in the identity card records. Citing a 2013 Court of Appeal’s decision, Kristie Chan [2] (which in turn had relied on the 1971 U.K. case Corbett v. Corbett and 2003 case of Bellinger v. Bellinger) the High Court of Kuala Lumpur ruled that the applicant failed to qualify the 4 factors test, i.e., chromosomal, gonadal, genital and psychological factors. Despite looking at reports documenting Vasudevan’s gender reassignment surgery and doctor’s medical examination not finding any secondary male sex characteristics, the court declared those reports to be too ‘skeletal’.

The ordeal of compelling National Registration Department to change gender(s) for the purpose of identity card is not new in the Malaysian court. In a 2006 case [3], the High Court granted the change in gender from male to female to the applicant. The court cited the same U.K. case and rejected its 4 factor reasoning saying that too many times the ‘psychological’ factor is ignored.However, similar court orders as Vasudevan have resulted for Aleesha Farhana [4] and Wong Chiou Yong, wherein also, their applications were denied. The rights of trans* individuals in Malaysia also saw a tragic turn where nine individuals were jailed and fined for “posing as a woman” [5] despite a 2014 Court of Appeal’s decision [6] of declaring a statute of penalising cross-dressing in public as unconstitutional.

Muniswer Poniah, who represented and argued for Vasudevan says that the U.K. decisions relied upon by the court are outdated. He says that the court’s requirement on medical evidence places an undue burden on applicants and the medical requirements as set by the Kristie Chan case results in reluctance by medical practitioners, thus making records difficult to obtain. Highlighting the problem that trans* individuals face in Malaysia, Hema Letchamanan, Ph.D. candidate at the University of Cambridge, points out how the lives and decisions of the people from the community also get shaped by their respective religion. She says that gender confirmation surgery is not at all permitted or recognized for Muslim trans* persons and non-Muslim trans* persons get prosecuted under the civil law and Minor Offences Act, 1955 which penalises individuals for ‘disorderly’ and ‘indecent behaviour’ [7]. In fact, the Human Rights Watch Report [8] documenting human right abuses against trans* persons in Malaysia also points out several ways in which local religious and federal laws persecute individuals based on their sexual orientation and gender identity, creating an atmosphere of prohibition and incarceration.

Much similar to what Muniswer observes, a striking observation arising from the Malaysian courts is a heavy reliance on pathologization of the trans* body. Even in the 2006 case (where gender change in the identity card was allowed), reliance was placed on a psychiatrist, a surgeon in paediatric surgery and paediatric urology and a consultant in obstetrics and gynaecology, and an oncologist’s ‘expert’ report. The obsession with defining and diagnosing bodies inevitably ends up privileging certain forms of bodied individuals who are almost required by the law to undergo surgeries which again re-affirm sex stereotypes. A constant back and forth between the medical records and alleged pathological conditions almost becomes a way of disciplining the body by the court and the law [9].

In India, one would point out the NALSA judgment [10, 11], which says that mandatory Sex Reassignment Surgery (SRS) is completely irrelevant in deciding a transgender person’s right to recognize their own gender. In fact the Supreme Court makes a mention of the Malaysian Court’s 2006 case too, noting that the ‘biological test’ as assigned by Corbett (the U.K. case) must be completely rejected. But I wonder, how effective is this ground-breaking ‘break’ from reliance on SRS. The brilliance of the judgment is seen for the individuals who could hold discussions with respective state bodies and demand effective implementation of NALSA’s guidelines. So much does the judgment mean to many that I saw a trans* individual walking around with the physical copy of the entire judgment [113 pages] while using public transport, to reclaim their voice. At the same time, I recall a trans* person’s narrative in a conference in Bangalore where they recounted how when the judgment came out, everyone in the community gathered to celebrate and discuss the judgment. But as they were discussing the multiple categories as amply illustrated by the court, many of the people gathered started fighting amongst each other; fighting over who exactly has an entitlement under NALSA and who doesn’t. What struck me the most was when they said how this could be ‘one of the ways in which state institutions, under the garb of emancipating us, are trying to create a division amongst us’.

The way in which lived realities get objectively boxed before the court of law, is not a new thing. In fact, NALSA despite its empowering directions isn’t exactly the first case to make an attempt at conceptualizing the rights of a trans* individual. In the 2011 case of Faizan Siddique v. Sashastra Seema Bal [12], the Delhi High Court dealt with the legality of denial of Faizan’s candidature to Sashastra Seema Bal’s post of Constable (GD) Female because of allegedly being physically unfit. Although the court ruled in favour of the petitioner calling the Bal’s decision to be ‘arbitrary, irrational and illegal’, what is quite similar to the Malaysian courts is how judges become fact finders, who very intricately scrutinize medical records of the individual involved. The judgment documents paragraphs and paragraphs of the petitioner’s “condition” of “deformed genital”, and her “hermaphroditism”. Or when one looks at the case of Pinki Pramanik v. State of West Bengal and Another [13], where the court examines the alleged rape charges against the petitioner by dissecting the anatomy of Pinki and deciding whether there was a possibility of penetration or not.

The obsession with the body transcends the courts and becomes a reference point across other institutions as well. Karthik Bittu, a human rights activist with the Telangana Hijra Intersex Transgender Samiti (THITS) recounts an incident, while being interviewed during the Telangana Pride, of a trans* individual who after being wrongly detained was stripped naked and poked and prodded just to physically examine their body. There are many other cases (both documented and undocumented, ones which never come to the public demography) wherein sexual minorities face custodial violence of a kind that – more than often – involves violence over their bodies. Even Bittu himself was phone called by the police officials later who asked what exactly is happening with his body. Vyjayanti Vasanta Mogli, a human rights activist, also with THITS,  still faces difficulty in completion of procedures for publishing the notice in the government gazette, after applying for an application for change in gender, because of their insistence on producing a legitimate set of Sex Reassignment Surgery papers. This, despite repeatedly reminding them of NALSA’s orders.

By defining particular categories and particular forms of bodies, the way in which rights would be conceptualized legally to exclude many bodies and lives is a dangerous path. I draw an analogy to Kalpana Kannabiran’s documentation of decades of rape cases in India’s Supreme Court [14] wherein the judicial discourse around the rape victims actively involves almost pornographic account of the act of rape and describes the subject of ‘woman’ as a docile honourable woman who needs the help that is being given to her; how it ends up creating this poster of the right victim. Similarly if one indulges in the legal exercise of medicalization of trans* bodies, then it implies a legally valid criteria of how only certain bodied individuals could claim those rights. One could only hope that the cases that do come up before the court of law after NALSA do not end up holding a set standard of who should be entitled to these affirmative actions and who shouldn’t.

References

[1]  Lim, Ida. 2015. trans* fails court bid to change identity to woman, judge says ‘hands tied’. Malay Mail Online. http://www.themalaymailonline.com/malaysia/article/trans*-fails-court-bid-to-change-identity-to-woman-judge-says-hands-ti

[2] Kristie Chan v. National Registration Department Director General. 2011. Full text online at http://www.kehakiman.gov.my/directory/judgment/file/A-01-84-2011.pdf The Court of Appeals is higher up than the High Courts in the judiciary hierarchy in Malaysia.

[3] JG v. PengarahJabatan Pendaftaran Negara. 2005. Full text online at http://www.malaysianbar.org.my/selected_judgements/jg_v_pengarah_jabatan_pendaftaran_negara_2005_hckl.html

[4] Teik,Pang Khee. 2001. Court must allow Aleesha Farhana to change her name and gender. Loyarburok.  http://www.loyarburok.com/2011/08/01/court-aleesha-farhana-change-gender/

[5]  Human Rights Watch. 2015. Malaysia: Court Convicts 9 Transgender Women: Abolish Laws Against ‘Cross-Dressing’ http://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-trans*-women

[6]  Khamis and Ors. v. State Government of Negeri Sembilan and Ors. 2012.
http://www.kehakiman.gov.my/directory/judgment/file/N-01-498-11-2012_jud_penuh.pdf

[7] Section 21 of Minor Offences Act, 1955, online at http://www.agc.gov.my/Akta/Vol.%207/Act%20336.pdf

[8] Human Rights Watch. 2014. “I’m Scared to be a Woman”: Human Rights Abuses Against Transgender People in Malaysia. Online at http://www.hrw.org/sites/default/files/reports/malaysia0914_ForUpload.pdf

[9]  Ezie, Chinyere. 2011. Deconstructing the Body: trans* and Intersex Identities and Sex Discrimination – The Need for Strict Scrutiny: 20(1) Columbia Journal of Gender and Law 141, 154. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589519

[10] National Legal Services Authority v. Union of India, AIR 2014 SC 1863. 2014. Full text online at https://new2.orinam.net/377/wp-content/uploads/2014/04/Judgement_Nalsa_Transgenderrights.pdf

[11] At ¶20, the Hon’ble Supreme Court of India writes, “Each person’s self-defined sexual orientation and gender identity is integral of their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.”

[12] Faizan Siddiqui v. Sashastra Seema Bal. 2011. Full text online at http://indiankanoon.org/doc/176981719/

[13] Pinki Pramanik v. State Of West Bengal & Anr. 2014. Full text online at http://indiankanoon.org/doc/149648431/

[14] Kalpana Kannabiran and Vasanth Kannabiran. 2002. De-Eroticizing Assault: Essays On Modesty, Honour And Power p. 104. Bhatkal and Sen.

There have been innumerable times when my batch mates had told me how I ‘never looked like one’, simultaneously and not-so-subtly, pointing at my lower class, Dalit batch mate who hails from Bihar: a boy who according to them clearly fits the criteria of ‘poor SC boy who needs the reservation’. How much it pained me to hear that. I come from an untouchable caste of Chamars from Jalandhar. I have been extremely privileged to be born in a family where my grandfather stepped out of his father’s occupation and earned enough to pay for my father’s education who in turn became a civil servant. Does that mean that I should feel sorry about an upper class, upper caste person’s accusations of my non-credibility of having reached a place which is so conveniently appropriated by men and women of unquestioned privilege? Was that unease I saw in their eyes when I wouldn’t just silently suffer the multiple disadvantages that were thrown at me?

I remember how as a child, my parents took me to Guru Ravi Dass Ji’s gurudwara and explained to me how he is ‘our’ guru. I remember being confused as to why he isn’t counted among the ten Gurus when he is evidently a Guru himself. I remember being confused by following rituals such as taking my shoes off, bending down just the way I saw upper caste individuals do when we were very much opposed to the way they perpetuated caste oppression by such exclusionary practices. What struck me most, and still does sometimes, is the level of secrecy that came with my caste. I was constantly reminded by my family to not wear my caste on my sleeve. How doing so, would attract unwanted attention. I get angry when I am required by my family members to touch my elders’ feet. I get angry when my parents forbid me from eating beef, of telling me to shut up about my caste when I refuse to name a fictitious number from a general list to avoid conversation about reservation list.

Much of my courage (or just plain common sense) to not shy away from confrontations with my daily realities with respect to my caste came from me dealing with bullying because of being an out of the closet homosexual. I am a cis-gendered man and identify my sexual orientation as gay. I never went through any questioning phase in my life. I just knew since 1st grade and even before that, that I was interested in people of my own gender. Not sexually of course…there was a sense of higher attachment with boys my age.

A very big part of me which was able to face caste oppression stems from the strength that I found through my comfort of being in my own skin; by respecting who I am, regardless of how everyone around me mocked me, joked about me, bullied me, for being different or girl-ish or sissy or a chhakka. I remember being in 6th grade and terribly upset about being mentally tortured by my school mates but forced to console myself because I just couldn’t ever feel comfortable about discussing it with my mother. Because if I would tell my mother what they called me, she would enquire about why would they call me such names and eventually connect the dots with my orientation.

I remember even being abused by my cousin for acting like a girl and bringing shame to my entire family. But I decided long time back in my life that I would never let anyone make me feel bad about myself. Slowly, while growing up, I came to terms with my caste. What supposed impurity meant. How I should never tell my friends what my caste is. ‘Why?’ I asked. “Bas nahi batana. Humain woh bura samajhte hain.‘ Thus I hid my caste (besides keeping quiet about my orientation). Not only did I try to look and seem masculine, I would also try to imitate my upper caste friends’ fascination with their cultures (which I came to know much later is the mirroring of upper caste ideologies by lower castes, as Srinivas calls it Sanskritization and Brahminization).

As I grew up, it became much easier for me to ‘come out’ about my sexuality, but not my caste. I guess it just became easier for me to take the struggles at my own pace. I realized that I was trying so hard to fight the shame attached to me being gay that I somehow overlooked to fight the shame that is attached to my caste. I began to accept my caste within my engagement with my sexuality. I realized Ambedkar has so much to offer not just to the lower castes but marginalized people across the spectrum. Annihilating caste by challenging the very foundation of the Hindu society helped me to come to terms with attacking the hetero-normativity and assumed notions of femininity and masculinity. Ambedkar and his readings not only helped me challenge oppression at various degrees, but it also helped me embrace the ’emotional’ within the rational.

While talking about the Gandhi-Ambedkar debate, one of the points in which some analyse those deliberations, is how Ambedkar demolished the opposing side’s arguments, one by one, rationally. For me, on the other hand, the very fact that he was so emotional about the cause, that emotional rationality carried a stupendous importance. When people around me dismiss my dis-engagement with law and my ‘dildo-shoving-feminism’, I feel in no sense non-emotional about my feminism, caste and LGBT or diluting the baggage that these movements come with just to please the comfort of the listener or the opposition. My caste taught me how not to be uncomfortable with me being emotional and dismissing them in the name of making rational and public pleasing arguments.

In discussions which are perpetually lost in unearthing each other’s dispositions, Ambedkar is someone who is supremely relevant and will be for infinity to help us deconstruct the taken for granted structures around us. The intersectionality of experiences, if not educating us about multiple marginalizations, also teaches us to be more inter-disciplinary in our approach to issues.

Credits:  Orinam thanks the author and Round Table India, the site where the article was originally posted, for consent to republish. Round Table India is an anti-caste Dalit Bahujan news and information portal.