The more I thought about it, the more sense it made to me. Inclusivity sometimes just becomes a re-drawing of boundaries, even when it’s not meant to be that – a checklist with the different marginalised groups we “include.” For example, many job openings run the disclaimer: “Women, people belonging to different castes, tribal communities and persons with disabilities are encouraged to apply.” Some people will then critique this statement for not checking enough of the boxes in our politically correct list of marginalised groups, like those excluded, in society, based on gender identity or sexual orientation.

First of all, I doubt anyone can create a checklist that would encompass every such group. And second, this approach reaffirms narratives of “Who is more marginalised?” and “How many categories on this checklist does one person belong to?” These are counter-productive to what a lot of us try to achieve as human rights activists.

I will readily admit that I’ve been guilty of this way of thinking. And while it didn’t make complete sense to me, I couldn’t quite put my finger on what was wrong with it. This is why the statement about ‘opening up’ was so metamorphic for me. It became a one-sentence principle to guide my efforts towards elimination of boundaries versus their re-drawing.

I’ve been working with Amnesty International India for more than six months now. It’s a space that is definitely one of the more progressive and less bigoted work environments I’ve experienced. Having been a part of the LGBTQI support community for a while now, I was happy to notice during my interview that the restrooms here did not have the traditional Women/Men signs (For the purpose of clarity, I would like to mention that these are single-occupancy restrooms).

A month later, when I started working here, those very Women/Men signs greeted me at the restroom doors. And really, what is up with those signs? The Men/Women stick figures are hardly representative of what actual men and women look like. Not that other signs featuring men with moustaches and hats and women with nose pins and long flowing hair do any better and only reinforce gender stereotypes!

The hiring policies and work culture of Amnesty do not reflect this bias, but those restroom signs still had to go. Taking the point of reinforcing gender stereotypes and conformity further, the existence of separate restrooms provides challenges for some transgender and intersex persons. Here are a few reasons why:

1. There aren’t just two genders of ‘man’ or ‘woman.’ A person may not necessarily identify as male or female, and signage that does not recognise other gender identities can become an act of gender discrimination by limiting access.
2. There aren’t just two sexes of male and female. Intersex people, who possess characteristics that do not correspond to normative standards of male or female, need not identify as male or female, irrespective of the sex assigned at their birth.
3. A transgender person may not want to publicly reveal their identity, or may be going through a physical transition to conform to their true gender identity and/or gender expression. The Men/Women signage places them in a situation of conflict: of either having to use a restroom they do not prefer, or out themselves at a time when they may not be ready. And all this when a person may already be going through physical, hormonal and psychological changes and stress.

Also important to consider is the violence a transgender or intersex person might face in restrooms that have distinct and exclusively Men/Women multiple-occupant restroom stalls. A transwoman or hijra using a women’s restroom could be misperceived as a man using a women’s restroom he doesn’t have the right to or vice-versa. This makes it that much more necessary for both public and private spaces to also have individual gender-neutral restrooms (This does not, of course, take away from the need to have women-only – including transwomen – restroom stalls in certain locations, which may be desirable for various reasons, including safety).

After putting together a proposal to our HR department and a consultation with the senior management, we’ve now removed the Women/Men restroom signs in our office and replaced them with ‘all gender restroom’ signs. This step at the Amnesty workplace, and the call for gender-neutral restrooms in public spaces, complements the April 2014 Supreme Court judgment in the NALSA versus Union of India case that directed the legal recognition of transgender persons’ gender identities.

This judgment instituted the right to self identity, called for non-discrimination of transgenders and improved access to opportunities and public spaces. The Court specifically observed that access to public toilets was a problem for transgender persons, who are often forced to use toilets for men, where they are vulnerable to sexual assault and harassment. International human rights law prohibits discrimination on the grounds of sexual orientation or gender identity.

International human rights treaties that India has agreed to be bound by have been interpreted as prohibiting discrimination on these grounds. UN human rights experts have confirmed that international law prohibits discriminatory treatment in a range of everyday settings like workplaces, schools and hospitals.

‘Being inclusive’ also comes with the implication that it is a thing that you do. You either are inclusive (of certain people) or you are not, similar to the checklist reference, while ‘opening up’ implies more of a process. Nobody has it all figured out. No space is perfectly inclusive. Not even human rights spaces. I doubt anyone knows what such a space would even look like. However, it is important that we start the process – think, listen and act.

This article originally appeared on Social Story, and has been reproduced with consent.

Verma Committee [Image Source: The Hindu]

Jan 24, 2013: The committee of Justice JS Verma, Justice Leila Seth and Gopal Subramaniam has released its report on amendment of criminal law surrounding rape in India. The report, released Jan 23, 2012, is may be download by clicking here.

The committee, constituted in the wake of the brutal Delhi gang rape of Dec 2012, received input from diverse communities, including legal experts, women’s groups, LGBT groups and others around the world.

The Committee proposes the following reframing of Section 375 (rape) definition as follows:

” 375. A man is said to commit rape if he—

(a) penetrates the vagina or anus or urethra of a person with—

(i) any part of his body including his penis or,
(ii) any object manipulated by him, except where such penetration is carried out for proper hygienic or medical purposes; or,

(b) manipulates any part of the body of a person so as to cause penetration of the vagina or anus or urethra of another person; or,

(c) engages in “cunnilingus” or “fellatio”, under the circumstances falling under any of the following six descriptions:

Firstly.—Against the person’s will; or,

Secondly.— Without the person’s consent; or,

Thirdly, With the person’s consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested, in fear of death or of hurt; or,

Fourthly.— With the person’s consent, when the man induces the person to consent to the relevant act by impersonating another man to whom the victim would have otherwise knowingly consented to; or,

Fifthly, With the person’s consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the man personally or through another of any stupefying or unwholesome substance, the person is unable to understand the nature and consequences of the action to which he/she gives consent; or,

Sixthly, When the person is unable to communicate consent either express or impliedly.

Among the comments of the Justice Verma committee are the following observations on sexuality:

Page 51:

“65. We must also recognize that our society has the need to recognize different sexual orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there also exists the transgender community. In view of the lack of scientific understanding of the different variations of orientation, even advanced societies have had to first declassify ‘homosexuality’ from being a mental disorder and now it is understood as a triangular development occasioned by evolution, partial conditioning and neurological underpinnings owing to genetic reasons. Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as including sexual orientation.”

The Commission affirms Naz on Page 54:
“Thus, if human rights of freedom mean anything, India cannot deny the citizens the right to be different. The state must not use oppressive and repressive labeling of despised sexuality. Thus the right to sexual orientation is a human right guaranteed by the fundamental principles of equality. We must also add that transgender communities are also entitled to an affirmation of gender autonomy. Our cultural prejudices must yield to constitutional principles of equality, empathy and respect.”

The Committee further notes [Page 406] that:

“a. Sexuality is a fundamental aspect of human life;

b. It covers physical, psychological, spiritual, social, economic, political and cultural dimensions;

c. Sexuality can be diverse; and

d. The rules which govern sexual behaviour differ widely across, and within, cultures and individuals.

f. Children need to be able to access informed, non-prejudiced sources on sexuality.

Challenging the perception of sexuality as being purely heterosexual is an ongoing agenda for lesbian, gay, bisexual and transgender (LGBT) activism and for counter-socialisation efforts. Collaborating or networking with LGBT activists is a beginning to understanding different sexuality experiences.

5. We are of the opinion that –

a. There must be a reduction of misinformation, be it through internet of misleading advertising;

b. Correct knowledge must be disseminated in respect of sexuality and sexual choices, without enforcing gender stereotypes;

c. The skills of children and young adults to make informed decisions need to be nurtured;

d. Perceptions and social norms need to be relooked at and revamped;

e. Children and young adults must be encouraged to increase communication with and within peer groups.

f. The use of theatrical resources and films in school workshops has proved to be extremely effective in gauging students’ responses towards understanding of gender relations and we recommend use of audiovisual material to encourage respect and understand for all genders/sexes.”

Finally, on the subject of gender-neutral laws, the Committee notes on Page 416 that

“Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same.”

Orinam notes: We are in overwhelming  agreement with the points raised by the Justice Verma committee, as they propose to make the law fully inclusive of the various forms of sexual assault  faced by women and LGBT people, moving beyond narrow definitions of rape that existed before, bringing marital rape within its ambit, and pointing out the violence inherent in such archaic methods as the two-finger test.

However, we wish to caution against use of the terms “homosexual, transgender and transsexual rape” as these are subject to misinterpretation concerning  the presumed sexuality and/or gender identity of the perpetrators and/or survivors.

While ‘homosexual rape’ in the sense of rape by homosexual men does exist (and such perpetrators must be brought to justice), we point out that the majority of male-on-male rapes are not perpetrated by homosexual men. Calling male-on-male rape ‘homosexual rape’ risks further stigmatizing those of an already stigmatized sexual orientation.

Further, pervasive homophobia in society causes many victims of male rape to remain silent on it, because of fear and shame associated with being labeled homosexual. We refer interested readers to Sandesh Sivakumaran’s article on the issue.

We also draw attention to many studies reporting that children who are effeminate boys, masculine girls and gay/lesbian/bisexual or transgender adults face disproportionate risk of sexual assault and rape, mostly from adult men who are not homosexual/bisexual themselves.

Given the above considerations, we suggest that a suitable rephrasing would be “male-on-male rape and rape of gay/lesbian/bisexual/transgender persons.”

Recommended reading:

Rothman, Ellen and others. 2011. The prevalence of sexual assault against people who identify as gay, lesbian, or bisexual in the United States: a systematic review.Trauma, Violence and Abuse. 2011 Apr;12(2):55-66.

Sivakumaran, Sandesh. 2005. Male/male rape and the “taint” of homosexuality. Human Rights Quarterly, Volume 27, Number 4, November 2005, pp. 1274-1306