The Anti-Discrimination and Equality Bill, 2016 (“ADE”) was introduced in the Lok Sabha on the 10^th of March, 2017, by Dr. Shashi Tharoor as a private member Bill. Dr. Tarunabh Khaitan, Associate Professor of Law at the University of Oxford has advised with respect to the contents of the Bill. According to an interview by Dr. Tharoor, 4% of private member Bills move on to the discussion stage. As of now, we do not know whether the ADE will move to the discussion stage. The protections provided under this Bill will apply to many different kinds of social markers. However, in this short article, I will try to lay out broadly how the ADE would affect the LGBT (lesbian, gay, bisexual and transgender) community and those perceived to belong to this community. For the remainder of the article, any mention of the LGBT community should be read as including both these categories, as is also the intention of the Bill.

1. Protection from Sexual Orientation and Gender Identity Discrimination

The ADE is a comprehensive anti-discrimination Bill that seeks to provide all citizens of India protection from various forms of social discrimination (Preamble) from both the government and a set of private bodies (employers, landlords, shopkeepers, public contractors etc.). Therefore, several social markers such as caste, race, ethnicity, descent, pregnancy status, skin tone, food preference, HIV status, disability, marital status etc. which also form the bases of different kinds of discrimination in society are categorized as protected characteristics under this Bill. A protected characteristic is a characteristic on the basis of which one cannot be discriminated against. Sexual orientation and gender identity are also categorized as protected characteristics. Therefore, the most important feature of this Bill in the context of this article is that it provides protection from sexual orientation and gender identity related discrimination to citizens of India (S. 3(i) read with S. 14). Doubtless, it would include not only L, G, B and T persons but also persons who are gender fluid or gender queer, or do not identify with any particular identity category. However, by abundant caution, this Bill has stated that features which are, “either outside a person’s effective control, or constitute[s] a fundamental choice” are protected characteristics which cannot form the basis of discrimination.

2. Direct, Indirect and Aggravated Discrimination

A. Direct Discrimination

The Bill provides protection from direct, indirect and aggravated discrimination. Direct discrimination would arise when there is a rule or practice which is motivated by prejudice/stereotype or intends to harm people on the basis of their membership to a particular group (S. 6). For example, if a blood donation centre forbids gay men from donating blood because they assume that every gay man has AIDS, it would amount to direct discrimination on the basis of sexual orientation. This would be a case of direct discrimination even if the blood donation centre can produce statistical evidence to show that a large percentage of persons with HIV/AIDS are gay men, or that a large percentage of gay men have HIV/AIDS.

B. Indirect Discrimination

Indirect discrimination would arise when sexual orientation or gender identity do not form the direct basis of discrimination on the face of it (S.7). However, if one digs deeper, one will find that the LGBT community suffers a disproportionate disadvantage under the rule. S. 377 of the Indian Penal Code, 1860 (“IPC”) is the classic example. On the face of the law, it does not discriminate on the basis of sexual orientation or gender identity. As per S. 377, “carnal intercourse against the order of nature” is criminalized. However, S. 377 is seldom used against the sexual acts of a man and a woman. It is used primarily to harass members of the LGBT community (Naz petition, paragraph 5). Therefore, such a law although equal in words, treats people unequally based on their real or perceived sexual orientation or gender identity and disproportionately affect members of the LGBT community (Naz Decision, Delhi High Court, paragraph 113). Therefore, such a law would qualify as indirectly discriminatory under the Bill.

Another example may be surrogacy laws which restrict surrogacy to married couples. Apart from being directly discriminatory on marital status, such a law could also be indirectly discriminatory against the LGBT community if it is shown that surrogacy is one of the chief ways by which members of the LGBT community (esp. gay men) become parents.

C. Harassment, Boycott and Segregation

This Bill also protects the LGBT community against harassment, boycott and segregation. Therefore, any communication which has the purpose of creating a bullying atmosphere for actual or perceived membership of the LGBT community would be unlawful under this section (S. 8). The example present in the Bill itself is that if a boy is called a “sissy” for refusing to play sports, such name calling would amount to harassment.

Any call to boycott or ostracize someone on the basis of their actual or perceived sexual orientation or gender identity would be forbidden under the boycott provision of the Bill. For example, if the school principal in the example above-mentioned directs all students to stop interacting with the boy, the principal would have committed the act of boycott under this provision (S. 9).

Segregation is said to occur under the Bill when, by use or threat of force or manipulation, a person is prevented from interacting, marrying, eating, living, socializing, visiting, being friends with, etc. with a LGBT person (S.10). For example, if a landlord informs a tenant that their gay friends cannot visit them and if they do, the tenant would be kicked out of the rented property, such threat would amount to segregation under the Bill.

Further false complaints of kidnapping under S. 366 of the IPC also amount to segregation under the Bill (S. 10(2)). Therefore, if the parents of one of the partners of a lesbian couple file a false case of kidnapping against the partner of their daughter, it would amount to segregation under the Bill (in addition to the offence of false information under section 182 of the IPC). Furthermore, this Bill provides that in such situations, if the partner, whose parents have filed the case, makes a reliable statement stating that the complaint is false, such statement would be sufficient to prove that the complaint is false even if she later retracts from that (S.10 (3)).

Whether such a reliable statement should be sufficient to prove a false complaint case, or whether it should just establish a prima facie false complaint case and shift the burden on the other party (the complaining parents in this case), is something that the Parliamentarians may take time to consider in the discussion phase, in keeping with the realities of how these complaints are made in the police station and principles related to the apportionment of burden of proof in similar cases.

Finally, any encouragement or facilitation of violence against members of the LGBT community would constitute discriminatory violence under the Bill and any public servant whose duty it was to protect from such violence and fails to do so would also be said to have committed discriminatory violence (S.11).

3. Diversification Allowed

This Bill allows the adoption of any rule or policy that will encourage the participation of the LGBT community in government, local authorities or activities of private persons performing public functions (for example, public contractors). Such diversification measures can include scholarships, special training programmes etc. Such diversification techniques would not be to the detriment of affirmative action measures that may already exist (S. 13 read with S. 14 (6)). Additionally, public authorities while making a rule will be required to give due regard to ending discrimination and the promotion of quality and diversity (S. 16).

4. On Whom Does the Duty of Non- Discrimination Lie?

The duty of non- discrimination flows from persons belonging, or representing persons in, category A to, persons in category B. Persons in category A are 1. Employers, 2. Landlords, 3. Traders, 4. Service providers, 5. Public authorities; 6. Private persons performing public functions. Persons in B are 1. Employees; 2. Purchasers or tenants, 3. Consumers; 4. Consumers; 5. Any affected persons; 6. Any affected person, respectively (S.14). A, or representatives of A cannot discriminate, directly or indirectly, or use discriminatory violence or boycott, harass or segregate, B.

Therefore, a landlord cannot refuse to rent property to transgender persons on grounds that they are transgender. Similarly, for other categories of A and B. Additionally, the landlord must also ensure that their employees like the house help etc. do not discriminate against the transgender tenant (S. 14(3)).

Inversely, the duty to not discriminate, harass, boycott etc. does not flow from B to A. Therefore, for example, an LGBT support group can put out a call on their Facebook page to boycott a particular food joint that has homophobic graffiti inscribed on its walls.

The duty of non- discrimination does not lie in personal relationships. For example, LGBT persons are not protected from discriminatory attitudes from their family members at home or discriminatory remarks from their friends or other personal relationships.

5. How Can these Protections Be Enforced?

A. Remedies Available

The protections provided under this Bill can be enforced by approaching the State Equality commission, a body proposed to be set up under this Bill (S. 31). The range of remedies available under the Bill are, apology, abandonment of discriminatory practice, diversity training, damages, normal and exemplary (this can go up to Rs. fifteen lakh), protection orders (which are like restraining orders) etc. (S. 33 and 34). Breach of a protection order can invite an imprisonment term of up to one year (S. 35(1)).

B. Who Can Bring the Claim?

As per S. 37, the claim can be brought by 1. the aggrieved person; 2. relative; 3. sexual or romantic partner; 4. organizations that represent the aggrieved person; or 5. with the permission of the central equality commission, any one aggrieved person acting on behalf of other aggrieved persons who have the same interest (for example, an LGBT activist challenging a particular law on behalf of all members of the LGBT community).

C. What Does the Aggrieved Person Have to Prove?

The aggrieved person (plaintiff) has to make out a prima facie case of discrimination. This means that the plaintiff will have to show that a particular rule or practice does in fact, mete out different treatment on the basis of sexual orientation or gender identity. Once the plaintiff shows this, the burden shifts to the respondent (employer, trader, government etc.) to show that such a discriminatory measure was instituted in good faith and as a proportionate means to achieve a legitimate end (S. 6(2) and 7(2)). However, there is no defence provided for segregation or boycott in the Bill.

D. Will S. 377 Pose some Practical Problems to this Bill?

The presence of S. 377 may pose some practical problems to the enforcement of the guarantees under the Bill. For example, a landlord may refuse to rent out property to a gay couple not because they are gay, but because their sexual act means that they would be engaging in criminal activity under the IPC. A landlord may refuse to rent out property to persons engaging in criminal activities. However, S. 36 of this Bill allows the High Court to strike down other laws incompatible with the provisions of the Bill. This could provide an opportunity for High Courts to consider whether S. 377 should remain on the books and provide another avenue for challenging this section.

6. Concerns

While there are several protections provided to the members of the LGBT community, there are some concerns that the Bill poses to the LGBT community. I will try to lay them out here.

A. Segregation, Boycott, Harassment Flows Both Ways

Recall that the duty to not discriminate, boycott, harass etc. flows from A to B (see part 4). As the Bill is written, A comprises people who provide services and B comprises people who receive services. Imagine a situation of a shop which is owned by a lesbian couple. While this couple may not discriminate against potential customers, customers may discriminate against this shop. They may not like to purchase goods from this shop. No one may enter this shop. The Bill does not provide a remedy in this situation.

A previous version of this Bill, The Equality Bill, 2016 accounted for such a situation. S. 14(2) of this version forbade segregation by anyone. The proposed Bill could be amended to this effect. However, the following question may still require discussion: how would such a provision be enforced? How could an order of a court get people to start going to this lesbian couples’ shop and who would be responsible for non- compliance with this order? Perhaps, such a situation cannot be remedied by a law. Equality and diversity education might be a more effective tool in such situation.

Imagine, inversely, that the shop of this lesbian couple is flooded by customers all of whom make extremely derogatory and discriminatory remarks about the sexuality of the women. The Bill does not make a provision for these shop owners to segregate these customers on the basis of this homophobic verbal harassment. In other words, the shopkeepers cannot prevent these homophobic customers from coming in especially because both, they bear the duty of non- segregation and non- harassment (and not the customers) and also because there is no valid justification provided in the Bill for segregation.

A previous version of this Bill, S. 14 of the The Equality Bill, 2016 perhaps accounted for such a situation when it forbade discriminatory violence by all people against members of a protected group (the lesbian couple, in this case). Perhaps this latest version could be amended accordingly.

B. Freedom of Speech and Expression May Come in Conflict with the Provisions of this Bill

Our constitution allows a vast and expansive freedom of speech and expression fundamental right. Accordingly, as per S. 14(5)(iv) of this Bill, any form of speech and expression (among other things) which is allowed under the constitution does not amount to discrimination. In our constitution, hate speech, with the exception of the SC and ST (Prevention of Atrocities) Act, 1989, is not forbidden. This means that one can say hurtful and hateful things about members of the LGBT community and this is not forbidden under the constitution unless some other conditions are met. These conditions can be, for example, that the public order is threatened (Art. 19(2) of the Constitution of India). In such a situation where the freedom of speech and expression allows a wide freedom on the one hand, and this Bill forbids the bullying, harassment and segregation of LGBT persons on the other hand, a conflict may arise over the constitutionality of the bullying, harassment and segregation provisions. If such a question comes before the courts, they may have to find a way to reconcile these provisions with the constitutional freedom.

C. Discrimination in Regard to Religion Allowed

Inversely, freedom of religion under the constitution is subject to the provisions of equality (and other fundamental rights: Article 25). In this regard by allowing discrimination when it comes to religion or religious places of worship (Schedule), this Bill may have provided a constitutional concession where one may not be required. Perhaps, this provision could be looked at once again in the discussion stage to determine its suitability in the Bill.

D. Doubtful Whether Protection Extends to Foreigners

The preamble of the Bill states that the Bill is designed to, “ensure equality to all citizens” whereas “nationality” is also a protected characteristic under S. 3 of the Bill. Therefore, one cannot be discriminated against on the basis of nationality under the Bill. However, S. 3 also mentions that protected characteristics apply only to “citizens.” This gives rise to an apparent contradiction and leaves doubtful whether LGBT foreigners in India will receive protections of the Bill. However, this is a minor ambiguity in the Bill and can be rectified by an appropriate amendment.

Senior Advocate Anil Divan, described by the Indian Express as “the conscience of the bar”[1] – passed away on 20 March, 2017.

Tributes have been pouring in for Mr. Divan’s contribution to many matters of public importance – his role as amicus curaie in cases concerning corruption at the higher levels of the bureaucracy and political leadership: the Jain Hawala case, the Chandraswami case, the Indian bank scam case – and his advocacy on behalf of Ram Jethmalani in the Black Money case. [2]

What has not been noted so far is Mr. Divan’s unstinting support to the LGBT community. While the LGBT community is more familiar with the name of Vivek Divan who has been a long standing queer activist, and Shyam Divan who has represented Voices Against 377, their father Anil Divan has been among the earliest supporters of the rights of the LGBT community.

Our struggle in court has seen some success, and has had its share of setbacks. One early setback was the Delhi High Court’s 2004 dismissal of Naz foundation’s challenge to Section 377 on the grounds that the challenge was merely ‘academic’, because Naz Foundation was not a person directly affected by the provision. Mr. Divan, acting pro bono publico – i.e., in public interest and without a fee – argued on behalf of Lawyers’ Collective and Naz Foundation, and asked the High Court to reconsider its decision. Lawyers present at that hearing recollect a hostile bench, unwilling to admit it had erred. But those lawyers also recollect Mr Divan’s resolute, dignified and impassioned advocacy – a refusal to yield until every error in the court’s reasoning had been laid bare, and every opportunity given to the Bench to remedy those errors. Although Mr. Divan was unsuccessful and that bench could not be persuaded to reconsider its decision, the Supreme Court was to subsequently overturn that decision and direct the High Court to rehear the petition. And it was at this rehearing that the High Court bench of Justices A.P. Shah and Justice Dr. S. Muralidhar were persuaded to deliver the celebrated Naz foundation versus Union of India judgment of 02 June 2009.

But Mr. Anil Divan’s support to the LGBT cause was not limited to in-court-advocacy. In 2005, he added his name to Vikram Seth’s open letter calling for repeal of section 377, and to an end to discrimination on the grounds of sexual orientation. He was one of only three Senior Advocates to do so.

And in October 2006, Mr. Divan detailed in the pages of The Hindu, in simple and clear language accessible to lay readers, developments in judicial understanding of sexuality rights as human rights, in Ireland, the United Kingdom, South Africa, Hong Kong, the United States, and the European Court of Human Rights. He referenced an opinion of a US Supreme Court judge that “only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central in family life, community welfare and the development of human personality”[3] and then said:

‘India must march in step with other democracies on this human rights issue. It must emulate the sentiment of the European Court that such restrictions on the most intimate aspect of private life are not necessary in a democratic society that values tolerance and broadmindedness.’

As a much-respected public intellectual, and an acknowledged scholar of constitutional law and public law, Mr. Divan’s newspaper opinion was of particular significance.

The High Court decision of Justices Shah and Muralidhar had upset approximately 150 years of judicial reasoning and precedent. Predictably, it was met with a flurry of appeals challenging it, and asking for it to be immediately and summarily stayed. Mr. Divan stepped-up again for the LGBT community to argue that to stay the judgment would cause irreparable harm to the lives and the dignity of the many whom the High Court judgement had decriminalised. This time, however, he was joined by several other Senior Advocates. Stay was refused and the High Court judgment remained in operation for four years until it was overturned by the Supreme Court on 11 December 2013, in Suresh Koushal vs Naz Foundation.

Mr. Divan’s commitment to the rights of the LGBT community was a part of his broader commitment to constitutional principles and the rule of law. That commitment was on display when he resisted before the Supreme Court, the central government’s claim that it could pay less than minimum wage for work performed under the Mahatma Gandhi National Rural Employment Guarantee Act (‘MGNREGA’). That claim had been rejected by the Karnataka High Court and the central government was challenging the Karnataka High Court’s decision before the Supreme Court. The union government threw its weight behind that challenge and had its highest ranking law officer – the Solicitor General (SG), represent it. After the SG had made a forceful, persuasive, and compelling argument for staying the High Court judgement, referencing the limits of the state’s financial capacity, the intentionality behind the Employment Guarantee Act, the likelihood of a mismatch between budgetary allocation and minimum wage, et cetera, the bench seemed convinced of the need to stay the High Court’s judgement. More worryingly, the first hearing of the case was happening on a ‘miscellaneous day’, on which days most cases are dealt with in a matter of minutes, and the SG appeared to have used-up all the time and patience that the bench had for one case. By the time the SG was winding down his arguments, stay of the High Court judgement seemed a foregone conclusion: until, that is, Mr Divan rose to his feet and boomed – “You will not pass any orders until you have heard me”. Mr Divan then proceeded to conduct a masterly exposition of 45 years of the Supreme Court’s minimum wage jurisprudence, with barely an interruption, from bench or from adversary. When he was finished, there was no doubt that the SG’s request for stay of operation of the High Court judgement was not to be granted.

Mr. Divan’s respect for constitutional principle made him a watchful critic of the High Courts and the Supreme Court. He is quoted as having said ‘India is like a mini-Europe. There is great diversity. And what keeps this diversity together is our judiciary. Is it then not important that it be kept independent and separate from the executive?”[4]. And so, when Parliament’s attempted fix of the broken system for the appointments of Judges to the High Court and the Supreme Court, seemed to tamper with the core tenet of impendence of the judiciary Mr. Divan represented the Bar Association of India, challenging the constitutionality of the parliamentary solution. It is reported that Mr. Divan’s arguments weighed substantially with the Supreme Court when it struck down the amendments to the Constitution that provided for the National Judicial Appointments Commission.

For the better part of the life of the Indian republic, the Supreme Court had held that parties who had finally lost their cases before it, could ask for the decision against them to be reconsidered/ reviewed by that court only once, and that too, only on very limited grounds. By that standard, after the Supreme Court had, by an order passed on 28 January 2014, refused to review its 11 December 2013 judgement reversing the Delhi High Court judgement of Justices Shah and Muralidhar, the challenge to the constitutionality of section 377 would have ended. In a landmark decision in April 2002 however (Rupa Ashok Hurra vs Ashok Hurra), the Supreme Court had declared that when it had been established that a judgement rendered by it had resulted in a “gross miscarriage of justice”, “it would not only be proper but also obligatory both legally and morally to rectify the error”. This judgement was based on a careful and studied review of the jurisprudence of several other countries as well as the Supreme Court’s practice over the years. The Supreme Court was assisted in reaching its conclusion by the erudition of a handful of its most respected senior advocates, among who was Anil B. Divan. And it is this decision, arguably creating an entirely new source of power in the Supreme Court, which has allowed the Supreme Court to reconsider its unfortunate decision in Suresh Kumar Koushal v. Naz Foundation, because that decision resulted in a “gross miscarriage of justice”.

In his preface to a collection of his essays “On the Front Foot”, Anil Divan stated that the book aimed at illuminating the spirit of courage displayed when, in moments of crisis, people have chosen to “stand up and be counted”. After a quick listing of some such moments and persons, the preface narrates an incident reported from Robben Island prison, during South Africa’s apartheid years. The story goes that the complete works of Shakespeare were smuggled into Robben Island prison, and the book was surreptitiously circulated amongst prisoners, and each was asked to mark their favourite passage. Nelson Mandela – reports Mr. Divan – marked out Caesar’s words “Cowards die many times before their deaths. The valiant never taste of death, but once”. Having narrated Mandela’s preferred quotation, Mr. Divan closed his preface with these words:

“Each generation reaches its finest hour by inspiring the next, by sharing its priceless experiences and courageous battles, in the never-ending struggle in support of the independence of the judiciary to uphold the Rule of Law, founded on Human Rights.”

In his courageous battles, in his struggles to support the independence of the judiciary, and in his striving to uphold the rule of law and human rights, Mr. Divan’s life is the finest hour of his generation, an inspiration to the next.

Lawyers representing Voices Against 377 in the Delhi High Court and Supreme Court

References

[1] (http://indianexpress.com/article/india/conscience-of-the-bar-anil-divan-dies-at-86-4578244/).

[2] http://www.livelaw.in/india-lost-great-lawyer-tribute-anil-divan-ram-jethmalani/, http://barandbench.com/senior-advocate-anil-divan-no/, http://www.legallyindia.com/home/anil-divan-legendary-senior-counsel-pil-pioneer-died-today-20170320-8355, and http://www.outlookindia.com/newsscroll/senior-advocate-anil-divan-passes-away/1010753.

[3]http://www.thehindu.com/todays-paper/tp-opinion/human-rights-versus-section-377/article3059822.ece

[4]http://barandbench.com/senior-advocate-anil-divan-no/

This study aims to understand the facets of discrimination experienced by people in same-sex and other queer/trans relationships  because of their relationship status; and to examine the relationship shared by the parties to such relations between themselves and with other persons/institutions.

The expected results of this study are (i) a critique of Indian laws relating to marriage, based on the real-life stories narrated by individuals in queer/trans relationships, and (ii) a case for recognizing rights of queer/trans people in relationships by using the Constitution as a tool of transformative justice to invoke protections of substantive equality and human dignity.

The scope of the study includes both dyadic (couple) and non-dyadic (poly) relationships that are viewed by the law as falling outside the presumed-cis, heterosexual norm. These could include, for example, relationships of two or more (cis/trans) women, (cis/trans) men, non-binary people, or cis-trans relationships where one or more of the individuals is gay/lesbian, bisexual, pansexual or queer. Individuals who are/were citizens of India, including those currently residing here, and those who grew up in India and are currently living abroad, are considered.

Methods used will include In-depth Interviews, Focus Group Discussions and Observation. The nature of questions to be posed to the participants would be generally open-ended and analytical questions. Responses may be recorded either by audio/video or in writing. Ethical issues of anonymity (when sought), informed consent and confidentiality will be strictly complied with.

Illustrative issues considered in the interview/FGD include openness about the relationship with family, social circles, neighborhood and/or workplace, discrimination faced  in housing, banking, and other areas, financial dependence and violence (physical, sexual, emotional) encountered.

To learn more or participate, email sourav.law@gmail.com or call +91 74064 47531.

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.

Opening with these words from Tagore, acutely relevant in these times of escalating hate in the name of religion, the Honourable Justice Siddharth Mridul of the Delhi High Court went on to affirm the rights of transman Shivy Bhat to determine his own gender and to a life free of harassment and violence.

The ruling reaffirmed the core message of the Supreme Court NALSA judgement on transgender rights, while noting that the trauma, agony and pain faced by the community continues unabated.

“Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our Constitution. Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.  ”

This ruling adds to the Madras High Court 2014 ruling in Jackuline Mary in affirming that the scope of NALSA extends beyond those who identify as third gender and includes those identifying within the man-woman gender binary.

Congratulations to Shivy for his strength and conviction, and the team from Delhi-based queer feminist resource group Nazariya, their lawyers and allies. Details of Shivy’s case are on Nazariya’s website and in their press release appended to this post.

The full text of the judgement may be downloaded from Orinam here.

One only wishes that the Honourable Justice’s acknowledgement of the rights of individuals to determine their gender had been supported by his use of male gender pronouns to refer to Shivy.

NAZARIYA PRESS RELEASE
Press Release

Remarkable judgement by Delhi High court reaffirming the rights of a transperson
5th October, 2015

In the wake of a controversial case of illegal confinement of an adult transperson and withholding of his travel and identity documents by his family, Hon’ble Justice Siddarth Mridul of the Delhi High Court has passed a judgement withholding the rights of Shivy as a transgender in Shivani Bhat v State of NCT of Delhi and Ors on the 5th of October, 2015.

19-year-old transgender person Shivy, a citizen of India but a resident of the United States of America was illegally confined in his grandparents’ home in Agra when he came with his parents to visit them in the summer. While he was a victim of domestic abuse by his family even in his California home, on this visit to India his passport and green card were confiscated by his family and he was forced to remain in Agra under their control. Even under this duress, Shivy managed to contact queer feminist resource group Nazariya and other queer rights activists and request their help to come to a safe space in New Delhi.

Despite leaving a note informing his family that he was leaving of his own free will, his parents filed a missing person’s complaint with UP Police with the support of Delhi police, harassed, surveilled and threatened the activists who helped Shivy. Subsequently lawyers Menaka Guruswamy and Arundhati Katju, Shivy and the LGBT activists moved the Delhi High Court on September 22 seeking protection for Shivy, his friends and well wishers from harassment, intimidation and coercion, and to ask for the return of his passport and green card from his family.

In an outstanding judgment on the case dated 5th October, 2015, Hon’ble Justice Siddarth Mridul “The present petition highlights and brings to the fore the socio-economic marginalization and exclusion of those whose behavior is considered “inappropriate” by society. It clearly demonstrates that those who do not conform, render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded.

The judgement reads, “Despite the decision of the Hon’ble Supreme course in National Legal Services Authority v. Union of India and Ors: (2014) 5 SCC 438, the trauma, agony and pain, which members of the transgender community have to undergo continues unabated.
It further says, “Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our constitution. Gender identity and Sexual orientation are fundamental to the right of self-determination, dignity and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender. This view is buttressed by the landmark decision of the Supreme Court in National Legal Services Authority (supra)”

Upholding the rights of transgender persons, the judgement also says, “There is, thus, no gainsaying the fact that transgenders enjoy basic human rights including protection from violence and discrimination. They have the right to dignity and self-determination.”
The judgement also mentioned the false FIR lodged against Unknown persons supporting and helping Shivy in the time of help. Mr. Avi Singh, Additional Standing Counsel (Crl.) assured the court that Delhi Police does not intend to take coercive steps either against Shivani or against those who offered to support her.

Despite being served notice, there was no representative from respondent No. 2 the State of Uttar Pradesh but the court has issued a direction to respondent No. 2 not to harass or illegally confine anybody from within the territorial jurisdiction of this court except in accordance with the procedure established by law.

Shivy says that he is happy with the judgement and he can continue with his life and studies in the US now.

Rituparna Borah from Nazariya says, “I am elated with the judgement as it upholds individual freedom and liberty of gender identity and sexual expression. Hope this judgement helps other people who are still struggling and facing custodial violence from family.”

Lesley Esteves, a queer rights activist who was part of Shivy’s support network, said that “I would be proud to have a son like Shivy, unlike his parents Laxminarayan Bhat and Seema Rani Bhat who abysmally failed to support him. Instead they illegally dispossessed him of his documents and confined him against his will because of their severe transphobia and utter disrespect for law. They knowingly filed a false complaint against us with UP Police alleging that he was kidnapped, despite receiving a letter from him that he was leaving of his own free will. Effectively, his abductors tried to charge others with kidnapping, in order to cut off his support system in India. But the parents did not imagine that a court would step in to protect constitutional rights of Shivy and other queer people supporting him. They were firmly rebuked by the court today, when they were told by the judge that he would “end this bigotry today”. We are greatly encouraged by this judgment. The LGBTQIA movement will continue to fight for inalienable rights of transpersons when their families act criminally against them”.

For further questions, you may contact:
Rituparna +91-9999977272, Ritambhara +91-9818200807
Mail us at nazariyaqfrg@gmail.com

UPDATE Nov 12, 2015: The final policy document is here.

The 19-page draft State Policy for Transgenders in Kerala (2015), prepared by the state’s Department of Social Justice is available for feedback [download here] on their website.

The Policy, drafted in response to the Supreme Court’s NALSA judgement of April 2014, envisions  a helpline, crisis management centre, self-employment grants, monthly pensions for destitute transgender people,  formation of a transgender welfare board and district committees. Following NALSA, the policy adopts an inclusive definition that encompasses transgender people who identify as men, women or (non-binary) transgender, and also includes intersex people within its ambit.

The policy was drafted based on a statewide needs assessment of 4000 transgender people (99% transwomen, 63% married to women) that also estimated 25,000 transgender people in the state.

Thanks to Siddharth and Nazariya for making the presentation available here at Orinam.

The presentation may be viewed below.

If the presentation is not visible, click here

Incensed at this gross violation of the Supreme Court’s NALSA ruling, Avi filed the following online RTI, providing a summary of the ruling as attachment:

“The Honourable Supreme Court in its judgement dated 15th April 2014 in W.P. (Civil) No. 400 of 2012 held that Transgender individuals have the right to decide their self-identified gender and the Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female or as third gender. NALSA’s reasoning rests on two broad stands of human rights: freedom and equality. Underscoring the right to personal autonomy and self-determination under Article 21 of Indian Consitution, the Court observed that the gender to which a person belongs is to be determined by only the person concerned. The decision recognises the right of a person to identify in the gender that they relate to, that is, male, female or third gender, irrespective of medical/surgical intervention. 

“So the gender assigned to me at my birth, i.e. male, is nothing but my gender expression which is not always in line with my gender identity and since now I have an opportunity to correct it, I should be allowed to change the gender/sex section of all of my official documents including passport without undergoing gender reassignment surgery.

“However, while doing the same through Passport Seva website, I was asked to provide four mandatory documents:
1. Document type 8017: my original passport
2. Document type 7001: the proof of present address
3. Document type 8049 : Sworn affidavit regrading change of sex.
4. Document type 8050 : Certification from hospital where he/she underwent sex change operation successfully

“I simply failed to understand how the Ministry of External Affairs is still holding onto something which was declared illegal one year ago. No one should be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. This whole process of asking individuals for a medical certificate to prove their gender identity is not only brutally humiliating but it is also showing that the various departments of Indian Government are not in sync. Government is contradicting itself.

I am hereby attaching a document for you which will help you understand the last years judgment.”

The relevant sections of the reply are reproduced below:

This reply reflects a failure on the part of the Ministry of External Affairs to understand the NALSA ruling. Adding a third gender or “T” category does not suffice to make the Ministry of External Affairs NALSA-compliant if it still requires proof of surgery for recording a change of gender. Further, not all transgender people seek to identify as “T”, and are at liberty to identify as M or F, per the judgement.

We thank Avi for sharing this correspondence, and urge readers to share other instances where central Ministries and their departments at state and district level continue to function based on ignorance or misinterpretation of the NALSA ruling.

On reading the judgement, we find that the Honourable Judge states, despite the NALSA ruling’s focus on MTF,

“36. At this juncture, we may again have a look into 32 sub-para (2) of Para 129 of the judgement of the Hon’ble Supreme Court in NALSA’s case [cited supra] wherein the Hon’ble Supreme Court has declared that the transgender persons have right to decide their self identified gender and the Governments have to grant legal recognition of their gender identity such as male or female or as third gender. The Hon’ble Supreme Court has affirmed that this right flows from Article 19(1)(a) of the Constitution of India. In my considered opinion, in the case of Females to Males (FTMs) also, such fundamental right is available to them and therefore, it is for them to chose and express their identity either as females or males or as transsexuals.” (emphasis ours)

View full text of the Jackuline Mary judgement here.

It must be noted,  however, that “Nangai”, who was certified as “transgender by birth” by the chair of the medical board [1] at the Government Vellore Medical College Hospital is not FTM, even though assigned female at birth. She’s a 46XY woman who happens to have Androgen Insensitivity Syndrome.

What can we learn from this ruling?

• The conflation of intersex with transgender/transsexual  extends to the medical and legal communities: there’s a need for training on intersex variations and transgender issues in medical  and legal undergraduate and in-service curricula.  [A good starting point would be Chapters I and IV of the report by the  Transgender Committee set up by India’s Ministry of Social Justice, as well as the Appendix I on persons with intersex variations.]
• The NALSA ruling, though framed in the context of transgender persons, is equally applicable to people with intersex variation, such as “Nangai” of this case, and others whom the  Honourable Judge mentions, including Pinki Pramanik and Santhi Soundararajan.
• By stating that “compelling an individual to expose to medical examination to declare medically his/her sex identity itself is violative of Article 21 of the Constitution of India”, we hope the ruling will help put an end to the humiliating medical examinations that intersex and trans* people face in India.
• Finally, even though the learned Judge misidentified the woman in this case as FTM, his statement that FTM people have a fundamental right to identify with their chosen gender (man, woman, trans*) appears consistent with the NALSA ruling, though the text primarily focuses on MTF people.

[1] The urologist appears to have (correctly) identified her as having partial AIS: it is the medical board chair who interpreted the urologist’s statement (wrongly) as her being transgender by birth.

Story of X (via Good As You Bangalore, shared with X’s permission)

I am finally ready to share what happened to me last Wednesday… finally I am able to make sure nobody else goes through this kind of agony which I had to go through as a victim in this situation. Yes, I know it’s because article 377 still sits on us as homosexual individuals, who are trying really hard to make a respectable living after coming out of closet to our folks. There are times when we do get lonely and want to meet someone, with complete trust and hope of new possibilities of friendship, companionship, fun or a much serious relationship.

Last couple of weeks my gay profile on a popular gay dating site was followed up by this one guy, and I received numerous request for friendship and dating from him. But luckily I was a bit pre-occupied with a yearly house party planning and preparation, and of course, my work. But finally last Wednesday I was taking a day off after an amazing party and my work, when I again received a request to share my number for a fun date from him, the same afternoon. Without thinking much I invited him over at 4pm to my place in North Bangalore. Finally at 4:15pm he (Shyam) reached my door, after multiple phone calls to guide him with directions to my place. He seemed to be a bit unsettled and said he is from a small town and is new to all this. Just to make him comfortable I offered him a cup of coffee. While we were having coffee in my dining area, he was asking all sorts of weird questions like ( how many guys I have met so far… since when I have been using this dating site… how many dates in a week and all that…) he was talking to me, a bit strangely, as he was hiding his face behind the coffee mug… And I could only see his eyes… Still he seemed to be a bit unsettled and asked if he can smoke. Being a non smoker myself I asked him to move to my balcony while I cleaned up the coffee mug. I stay all alone in this beautiful house, and I try my level best to keep it clean and tidy… So he was complimenting me on the same… but suddenly I heard a knock on my front door. So I washed my hands and went to open the main house door.

To my complete shock, I see three men of roughly 25 to 30yrs age group, flashing their video cameras, and phone cameras at my face. They checked me with my real name and asked what I am doing in my house at that point of time. I felt an immediate surge of horror, of being caught doing something offensive. And as a response to that I thought I should close the house door at once on their face… but then the next very second I realized I don’t want to come across as someone shying away from the media cameras if this footage is ever gonna be telecasted any where… as I have not done any crime which I should be shying away from. So I allowed all these 3 guys to come inside and locked the door myself. Still their cameras where pointed at me and they were trying to make me feel as if I have done something really wrong. They, without my permission inspected both my bedrooms, restrooms and kitchen to finally go to my balcony and pull that date guy (Shyam) by his shirt sleeve. By that time I had already started thinking of worse possibilities.

Close to one year back, all of us users of this popular gay dating site where informed about the TV9 spy operation where they presented couple of gay guys’ profile openly on national television and naming us all as predators from whom the society needs to be at ALERT. So by now I was connecting the dots and it was very clear that they must be from some media bully or spy network, trying to create some content for themselves. I found myself engrossed in the panic attack and a fear that any gay person in this country has to face now, under the shadow of Article 377. If this content is released without my free will, I could imagine the scrutiny which I might have to face professionally or personally with my family and friends. Just in fraction of seconds I could sense that its gonna be a doomed life going forward. I could also imagine how much what really happened will be twisted, which will show me or any other gay guys as social sexual leeches who live undercover life. So I immediately to my defense asked them for their id card and warned them of calling the police. But they said that they have already informed the police and showed me their ID card, which stated that they were from some media content team called cyber square or something like that. I was fearing them so I quickly dialed the number of one of my friend whom I could call in an awkward situation like this one. But only to find that he is taking a short break in Udupi for that week. So I was feeling complete helpless and given to this situation and to these guys. I could also imagine them blackmailing me to pay them heavily for this footage which they have in their possession.

Finally one of the guys showed me a folder which had black and white printout of my profile images and my chat with Shyam, from that dating site. As they say, in situations like these only we can help ourselves, and to my shock, instead of fearing them, I accepted that I am gay and I do have profile on that site and also that Shyam was there to meet me for a date. I also openly said to them on their face that I know that Shyam is part of their team and they all were together trying to catch me helpless in this situation. “ I don’t fear you guys anymore as I am gay and am not ashamed of it. I am not afraid that you will show all this in television as, I am out to my parents and close family and friends. I don’t work for any corporate that I am need to fear losing my job if this video is released openly… So do whatever you want… But since you guys say that you are from some media content team, I am currently only dressed in my vest and my boxer… Why don’t you give me 2 minutes so that I can change into more appropriate clothes and come back to reshoot the entire footage with you all from the start… So that atleast I don’t look inappropriately dressed for a date.” By the time I said all this the smile had returned back on my face for being so strong and taking charge of what was happening.

Yes I did open up to all my close friends gradually in the last 2 yrs – to both my elder brothers in the last 1yr and my parents, just couple of months back. I could only feel happy at that moment for coming out of closet and sharing the real me with people for whom I really care or who matter to me in my life. But I think this all bravery talk like gladiator really turned the dice in my favour. I could see that their energy and tone in their voice had changed. And the smartest one, their leader immediately leaned forward that that they simply wanted to give me a media ALERT “I should not let unknown people inside my house like this”. And they all immediately wrapped up everything and left my house. It was all so quick that I could only see them leaving my main door. Yes they were finally gone and I could finally feel the cold sweat behind my ear.

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