This unfortunate state of affairs has occurred despite inclusive definitions of transgender persons in the Supreme Court NALSA verdict of 2014 and the Transgender Act (2019) and Rules (2020).

This  narrow and exclusionary stance will no doubt aggravate the challenges faced by transmasculine persons in accessing social welfare schemes and entitlements, with no individual to represent transmasculine concerns on the National Council.

We sincerely hope the council will be expanded to include transmasculine persons and open intersex persons from all regions, and that the current nominees to the Council will take  it upon themselves to press for such inclusion.

It would be pertinent to point out here that Assam-native Rituparna Neog, newly appointed National Council representative from the North East, has taken care to ensure diverse (gender identity, regional, tribal) representation in Assam’s transgender welfare board. We hope the other members will take a cue from Neog’s visionary leadership and advocate for broadening the representation in the National Council of Transgender Persons.

Click here to view the Gazette notification. 

Thanks to volunteer Fred for sharing the notification.

May 3, 2023

To:
The Government of Tamil Nadu

Subject: MARRIAGE EQUALITY Report Summarising the Needs and Demands from the LGBTQIA+ Community in Tamil Nadu

Given the pendency of the marriage equality petitions before the Hon’ble Supreme Court of India, a meeting was conducted in Chennai on April 23, 2023, in which members of LGBTQIA+ groups such as Kattiyakkari, Nirangal Charitable Trust, Orinam, Queerbatore, SAATHII, Sahodaran, Tamil Nadu LGBTIQ Movement. Trans Community Kitchen (Chennai), Thozhi, and Trans Rights Now; and individual activists, lawyers, mental health professionals and academics were present. These groups and individuals are part of Tamil Nadu Rainbow Coalition, an informal network first established as the Chennai Rainbow Coalition in 2009 and subsequently expanded across the state.

An open discussion was had, and the following points are now being submitted to the Government of Tamil Nadu for its consideration, in the event states have an opportunity to make submissions before the Hon’ble Supreme Court.

• Introduction
• Marriage and its Benefits – Why does the LGBTQIA+ community require the social protection of marriage
• Can the existing personal laws be modified to include the LGBTQIA+ community?
• Notice Period Requirement in the Special Marriage Act
• A Step Forward in the the Future of Personal Laws – The Right to Chosen Family

1. INTRODUCTION:

1.1 The State of Tamil Nadu has granted legal recognition to the transgender community and has constituted a welfare board since 2008, six years prior the Supreme Court’s verdict in NALSA vs Union of India. In more recent times, the marriage between a transwoman and a man was held to be valid under the Hindu Marriage Act by the Hon’ble Madras High Court in Arun Kumar and others vs Inspector General of Registration and others. In the case of S. Sushma vs Commissioner of Police, the Hon’ble Madras High Court has examined the struggles faced by the members of the LGBTQIA+ community in detail, and has issued directions to various government authorities in order to ensure their protection and safety.

1.2 As a state that has historically recognised and supported members of the queer community both through policy reform, judicial pronouncements, and government directives and as a state that has brought about an amendment to the Hindu Marriage Act in the year 1968 to include suyamariyathai or seerthiruththa thirumanam (self-respect marriages) in the ambit of a Hindu marriage, Tamil Nadu’s position in this litigation should unequivocally be in support of marriage equality, and the rights of LGBTQIA+ individuals to be able to solemnise marriages irrespective of gender markers (M, F, T).

1.3 In the present batch of petitions before the Hon’ble Supreme Court of India (also referred to as “Marriage Equality Petitions” going forward) Tamil Nadu should support marriages both under the Special Marriage Act as well as under religious personal laws.

2. MARRIAGE AND ITS BENEFITS

2.1 Marriage is the most socially accepted social union between two adults. This has also been discussed in detail by the Petitioners in the Marriage Equality Petitions.

2.2 The State of Tamil Nadu also recognises this social protection given by marriage, and thus has marriage assistance schemes to assist daughters of poor parents, orphan girls, widows who remarry, widows daughter’s marriage and inter-caste married couples through the Dr. Dharmambal Ammaiyar Ninaivu Widow Remarriage Assistance Scheme, E.V.R. Maniammaiyar Ninaivu Marriage Assistance Scheme For Daughters Of Poor Widows, Annai Therasa Ninaivu Marriage Assistance Scheme For Orphan Girls, Dr. Muthulakshmi Reddy Ninaivu Inter-Caste Marriage Assistance Scheme.

2.3 An argument has been advanced by the Union Government that marriage is not necessary or important for the members of the LGBTQIA+ community, and that their fundamental rights are not denied because they are not able to get married. Restrictions within the existing matrimonial law framework were highlighted, and the submission of the Union Government can be condensed to – “They can exist in this country, but they cannot get married in the current legal framework, and this inability to get married is not a violation of their fundamental right”. This is an incorrect understanding of the law, and the requirements of this community. For a persecuted group who are more often than not asked to leave or are thrown out of their birth families and familial homes owing to the stigma associated with their existence, LGBTQIA+ individuals struggle to find their footing in society. They choose their families and they build their community. Living in as domestic partners does not stand on the same footing of marriage today. In the Hon’ble Supreme Court judgement of D.Velusamy vs D.Patchaiammal, it was held that even the protection under the Protection of Women from Domestic Violence Act, 2005 was only available to couples who are in a live-in-relationship if their domestic relationship “is in the nature of marriage”.

2.4 Thus, for the Union Government to gate-keep this institution, which by its very laws and policies gives rise to various benefits, is tantamount to deliberately depriving the LGBTQIA+ community- an already vulnerable portion of Indian society of the rights and benefits available to heterosexual people.

2.5 The importance of marriage as a social institution that gives rise to benefits, responsibilities, duties, and oversight by the status cannot be replicated through any other form of living arrangement or domestic partnership both in the Indian legal framework as well as the Indian cultural context. A short and non-exhaustive list outlining the protection offered by marriage includes:

Protection offered through Marital Status

• Unless both or one of the individuals to the marriage want to dissolve their union, nobody else can do it. This aspect is invaluable to members of a community who are frequently deliberately separated by birth parents in order to prevent their relationship from proceeding further.
• It is easier to find accommodation in rental houses as a married couple, than it is as unmarried people in India right now. This is extremely useful to members of the LGBTQIA+ community who are more often than not asked to leave their birth families, unable to find permanent jobs as their education certificates and identity proof is not immediately available to them, and they have to move from one place to another in search of employment
• The benefits of opening a joint bank account, purchasing life insurance with nominees as a spouse will now extend to the LGBTQIA+ community.
• The ability to take health related decisions and be the nominee of their partner in the case of emergencies will now extend to the LGBTQIA+ community. Hospitals and health care professionals all require either blood relatives or spouses to sign off on life-saving treatments and surgeries, and at present, this crucial benefit is not available to members of the LGBTQIA+ community, many of whose members are separated and cut-off from their birth families who refuse to accept their choices and a community where members are also at risk of sexually transmitted illnesses.
• In addition to providing security during the life-time of a couple, marriage also grants benefits that can make it easier to navigate through the death of a spouse such as compassionate appointment, the right to receive mortal remains, and makes it easier to execute a will or obtain a legal heir certificate to carry out formalities after the spouse’s death.

3. CAN THE EXISTING PERSONAL LAWS BE MODIFIED TO INCLUDE THE LGBTQIA+ COMMUNITY?

3.1 The Hindu Marriage Act uses the terms “bride” and “groom”. The Special Marriage Act uses the terms “persons”, “parties”, and in the declaration uses the terms “husband and wife”. The Christian Marriage Act uses the terms “persons”. Removing the gender barrier in terminology can happen if the words bride, groom, husband, and wife are replaced by the words persons and spouses.

3.2 The list of prohibited relationships can be merged and make way for one comprehensive list so that the concerns of the legislature about inter-familial marriages are met.

3.3 The legal age to marry can be modified to become 18 – the age of majority. This is particularly important for LGBTQIA+ persons as parents who identify that their children are gender-nonconforming at an early age try to get their children married off as soon as possible.

4. NOTICE PERIOD REQUIREMENT IN THE SPECIAL MARRIAGE ACT

4.1 The existing framework in the Special Marriage Act involves a notice period requirement that is unconstitutional. Following the notice intending marriage, details of the people intending to marry will be publicly exhibited in their respective jurisdictions. This can have devastating consequences for LGBTQIA+ individuals who have fled from their birth families, and risk confinement, institutionalisation, forced conversions, and even honour killing. The 30 day objection period is also a cause for concern, as the word objection is not defined, and anybody can object. The notice period will place already vulnerable and persecuted individuals at grave risk, and will cause many hurdles in implementing marriage equality among members of the LGBTQIA+ community.

4.2 Thus, the Tamil Nadu government should support declaring Section 5 and 6 of the Special Marriage Act as unconstitutional. Any rights granted to the members of the LGBTQIA+ community with respect to marriage under the Special Marriage Act regime cannot be implemented when the notice period clause is still in force.

5. A STEP FORWARD IN THE FUTURE OF PERSONAL LAWS – THE RIGHT TO CHOSEN FAMILY

5.1 While the right of LGBTQIA+ individuals to marry can definitely improve the quality of life of queer individuals and is the right step forward, the future of the community can only be safeguarded when they have the right to choose their families. Unlike cis-heterosexual relations where familial bonds are strong and regulate social conduct and life, many members of the LGBTQIA+ community are forced to leave or are thrown out of their birth families and their native villages/ community.

5.2 Legal recognition to chosen families, by granting ration cards, identity proof in the same address, protection to couples forced to flee natal families, rights to parenting and custody, inheritance, rights of chosen family members to make medical decisions, insurance, and extending government incentives and schemes that are given to other families can greatly benefit the community.

5.3 In addition to this, any change in law or policy would be incomplete without adequate sensitivity training being given to law enforcement agencies and other departments who come in contact with LGBTQIA+ individuals when they are at their most vulnerable. Hence, sensitisation programs to police and prison authorities, district and state legal service authorities, judiciary as per the order of the Madras High Court dated 07-06-2021 in Sushma and another vs Commisioner of Police and others is the need of the hour. The State of Tamil Nadu can rest assured that the signatories to this note, and community leaders at the grassroots level will render any assistance required to facilitate these programs.

Thanking you,

Representatives of
Kattiyakkari, Nirangal Charitable Trust, Orinam, SAATHII, Sahodaran, Tamil Nadu LGBTIQ Movement. Thozhi, and Trans Rights Now; and individual activists

தமிழுக்கு இங்கே கிளிக் செய்யவும்

Image credits: Gokul

My parents’ reaction was to force me into silence because of fear of social disapprobation and their own prejudices from lack of awareness. Unable to assert my identity and communicate my lack of interest in marriage forcefully enough, I ended up yielding to my parents’ wishes and entering into an arranged marriage with a cis man. I have two children from the marriage. 

However, my gender dysphoria did not fade away.  It made its presence felt even stronger, forcing me to accept my authentic self, or else, cease to exist. I chose the former option, despite the many challenges it was bound to bring up. I came out as a man to the people whom I had been lying to for ages.

Following a divorce by mutual consent, and the decision to co-parent the children with my ex-spouse, I needed to relocate from one part of India to another. Prior to my move, I began looking around for schools in the new city that would be welcoming of children from non-traditional families. I was fortunate enough to secure admission for my children in one such school – the teachers and administration were unfazed by my coming out to them. 

While looking to rent a place close to the school, I meanwhile had to stay with my transphobic parents. As a pre-testosterone man, I present as much younger than I actually am. So, when I informed prospective lessors that the house was to be for my children and me, they started asking intrusive and insensitive questions and passed snide remarks about me. 

Many saw me, a young-looking man with two young girls, as a predator. Whenever they saw the three of us, they would repeatedly ask what my relationship was to the kids. To minimise these intrusive questions, I had started to lie that my partner/spouse works abroad and that I am a stay-at-home dad. However, the term “stay-at-home dad” prompted even more insensitive questions, with some even questioning my masculinity as a father who opted to stay at home rather than go to work and earn money.  

People still do not understand that parenting is a responsibility irrespective of the parents’ gender. In my apartment-hunting quest, I have maintained silence about being a person of trans experience, as I do not want to further jeopardise the safety and well-being of my children and me in a society insensitive towards gender diversity.

As my search continues, I cannot help but yearn for a world that is like my children’s school: accepting of diverse families, including single-parent, queer and trans ones.

* Name changed.
* Picture credits: Daughters of Tarun

The full Statement is at: https://docs.google.com/document/d/1739CSyu5q_xSeFvkUvfFXUQopYtLd3jZ/edit?usp=sharing&ouid=114555905071788929193&rtpof=true&sd=true

You can endorse the statement by clicking on this link https://forms.gle/4YK1ZH2Pn7q7aW1t5 

Any suggestion for addition or modification to the Public Statement can be mailed at huz208546@iitd.ac.in or Qiz208582@iitd.ac.in

Dear Peers,

I hope all of you are doing well.

I write to all of you on a sombre note because of the series of events that have transpired this month regarding the teacher’s training manual formulated and published by NCERT to make educational avenues more enabling, inclusive and accessible for transgender and gender non-conforming persons. The redaction of the manual and the institutional attitude of human rights oversight bodies signals worrying trends in India.

The purpose of this message is to seek your support and endorsement of the public statement that would be sent to important stakeholders for their immediate retrospection and actions, failing which we* plan to seek legal remedy.

Your support, endorsement and suggestions will be highly valuable. In rage, we unite!

Link to the Statement – https://docs.google.com/document/d/1739CSyu5q_xSeFvkUvfFXUQopYtLd3jZ/edit?usp=sharing&ouid=114555905071788929193&rtpof=true&sd=true

The authors  are a group of gender non-binary, gender non-conforming students from various educational institutions, who have experienced the horrors of the gender non-inclusive education system.

In 2018, the Supreme Court of India decriminalized consensual and private same-sex relationships in Navtej Singh Johar v. Union of India- – a landmark judgment that overturned the Supreme Court’s own ruling in Suresh Kumar Koushal v. Naz Foundation which upheld the now notorious Section 377 of the Indian Penal Code. Even though the Navtej judgment was momentous, it was merely the first step in the long fight for LGBTQIA+ equality- a step that should never have taken the Indian courts so long in the first place.

But even after Navtej, the journey for LGBTQIA+ acceptance has not been easy in India, especially for those living in small towns and rural areas. A lack of LGBTQIA+ friendly-spaces and radio silence on the issue of sexuality and gender identity has made it difficult for not only society to accept the LGBTQIA+ community, but also for LGBTQIA+ people to come to terms with their own identities. But in spite of these challenges, LGBTQIA+ activists across the country have continued to work tirelessly to change laws and mindsets alike. Back in 2017 (even before Navtej), Opposition party politician Dr. Shashi Tharoor tabled an anti-discrimination and Equality Bill in the Indian Lok Sabha that is comparable to the Biden Administration’s recently introduced Equality Act. However, unlike Biden, Tharoor wasn’t able to pass his Bill, ostensibly because of its radically transformative nature.

More recently, the BJP-led Central Government slammed efforts to legalize same-sex marriage in India by responding rather acerbically to three separate petitions seeking to secure these very same rights. The Government stated same-sex couples in India did not have the fundamental right to marriage because the Navtej judgment merely decriminalized ‘a particular human behavior’. Rather, the Government said, marriage in India should remain restricted to ‘biological men and biological women’.

The Government’s counter-affidavit also claimed that “Western ideas cannot be imported to the Indian context”; yet failed to prove how the idea of same-sex marriage was inherently ‘Western’. In fact, the terminologies of “western”, and “eastern” themselves are contested and require significant academic deconstruction. To merely claim that something is “western” or “eastern” is indeed a sign of intellectual laziness. The Government’s argument falls apart further when one considers the curious cases of two Asian, non-Western countries– Taiwan and Thailand. Taiwan not only legalized same-sex marriage back in 2019 but is now on track to legally recognize international same-sex marriages . Thailand is also considering expanding the scope of marriage to also include same-sex relationships. Moreover, rich historical and sociological evidence of the existence of same-sex marriage in India has been well-documented by scholar Ruth Vanita in her 2005 book Love’s Rite: Same-Sex Marriage in India and the West. This affirms that there is nothing quintessentially ‘western’ about same-sex marriage in India.

Two more of the Central Government’s arguments are grossly egregious. The first has to do with the Government’s labelling of sexual orientation as a “particular human behaviour” and the second is the Government’s idea of marriage as constitutive of a union between only ‘biological’ men and women. If we consider the first argument, we see that the Government’s line of reasoning is false because sexual orientation is not a behaviour, it is an integral aspect of one’s identity. Here is an excerpt from the Navtej judgment that drives this point home: “Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.” So, if one’s orientation is indeed intrinsic to one’s being and concomitantly, can’t be changed, then why should homosexuals be denied the same legal rights that their heterosexual counterparts enjoy- which includes the legal recognition of marriage? Ironically, arguments of ‘behaviour and choice’ are never made against heterosexuals because they constitute the majority in society, so much so that their sexual orientation is not only seen as the de facto ‘normal but also codified in multiple personal laws in the country that recognize various forms of opposite-sex unions. Yet, not a single law in India exists that recognizes LGBTQIA+ unions.

I wonder whether it is even morally justified for a country that prides itself (no pun intended) in the diversity and the multiplicity of its people, to deny a large section of these very same people equal rights?

The Government also claims that marriage can only be between a “biological man” and a “biological woman”, yet fails to define what a ‘biological woman’ is. In 2019, the Madras High Court ruled that the meaning of the word ‘bride’ in Section 5 of the Hindu Marriage Act “cannot have a static or immutable meaning”. Rather, it had to be expanded to include not just biological women, but also Transwomen, Transgender people, and intersex people. The Court further opined that the Constitution was a living document that needed to evolve with changing times in order to be relevant; furthermore, in Shafin Jahan v. Asikan K.M., (2018) it was already decided that “the right to marry a person of one’s choice is integral to Article 21 of the Constitution”. Why then, were these progressive arguments not made to grant equal rights to same-sex couples? Expanding the scope of marriage to same-sex couples does not take away anyone else’s rights. Rather, it makes for a more inclusive and diverse family unit. For a community that routinely experiences stigma, discrimination, and ostracization in Indian society, legalizing same-sex marriage would have been one way of rectifying historical wrongs. To argue that same-sex marriages could somehow cause “complete havoc with the delicate balance of personal laws in the country” (as the Government has also stated in its counter-affidavit) is gaslighting, plain and simple.

It isn’t surprising that valiant displays of compassion, courage, and love still threaten the small-minded and cold-hearted.

Madras has always been known as a hub of the arts and cultural activities. But has the city, with its legendary conservatism, embraced the rainbow of queer identities and cultures? To discuss this, an hour-long online discussion ‘Nam Madras kadhai pesalam: Arts, Colour, Queerness and Madras’ was organized on Aug 28, 2020.

The panel discussion was curated by Muhilann Murugan on behalf of Nam veedu, Nam oor, Nam kadhai,  a local social history initiative of archictects and artists conceived by Thirupurasundari Sevvel in 2013. The focus of the discussion was on the involvement and contributions of queer and trans communities to Madras culture, social history and life. It featured filmmaker Malini Jeevarathnam, photographer Harish Subramanian, artist Gokuleshwaran, and activists Jaya and Ramakrishnan. As the discussion proceeded, artist Srishti deftly transformed the content of the discussion to the sketch, reproduced above with permission.

View the video below:

 

View this post on Instagram

 

Nam Madras kadhai pesalam : Arts, Colour, Queerness and Madras . As we all know, Madras has always been known as a hub of the arts and cultural activities. But has the city, with its legendary conservatism, embraced the rainbow of queer identities and cultures? . With @muhilann_ @sarcastic_saroja @hush_o.o_ @gokuleshwaran @sahodaranchennai Jaya ma @lramakrishnan.insta . Thank you so much @madhavchitra for the sketch Thank you so much @kaushikbn for the quote Thank you so much @unsaid_dezires for the Kavithais . On this Madras day, we celebrate the queer side of the city with a panel discussion on the city’s queer arts, activism and culture scene. The focus will be on the involvement and contributions of queer and trans communities to Madras culture, social history and life. Date: 28th August 2020 Time: 6-7 PM Celebrate Art, Colour, Queerness, Madras and much more. #madrasinspired #madraspride #chennairainbowpride #namlocal #madrasheritage #personalhistory #madrasmag #namlocal #31daysofmadrasinspired #namchennai #nammachennai #engaoorumadras #heritage #socialhistory #nammadras #suyamariyathai_perani #madras_social_history_group #madras_life #teastories #nammadras #nampride #namveedunamoornamkadhai #nvok #nam #namveedu #namoor #namkadhai #madrasinspired #madrasstory

A post shared by Nam Veedu Nam Oor Nam Kadhai (@namveedu_namoor_namkadhai) on Sep 2, 2020 at 5:30am PDT

Muhilann Murugan (@muhilann_) is an architect, artist, volunteer with the Madras Literary Society, Nam veedu, Nam oor, Nam kadhai, and Orinam.

Srishti (@anchoredhues_) has been painting for the last 18 years. She has learnt over 35+ styles of drawing and painting from various artists and experiments on her own. She creates artwork that showcase strong ideas of colour. Her passion project explores the different connections between colours and the city.

The following statement was released at the Press Meet held on Dec 3, 2019, at the Press Club, Chepauk, Chennai. The press meet was held concurrently with a postcard writing campaign addressed to the President of India, asking him not to give his assent to the Bill in its current form.

Click here for Tamil version of the Press Release.

Dec 3, 2019, Chennai:

We transgender community members, allies, and members of the Tamil Nadu Rainbow Coalition, a network of LGBTIQA+ groups, collectives and individuals in the state, express our profound dismay at the passing of the Transgender Rights Bill in the Rajya Sabha. The Bill, that was passed by the Rajya Sabha on Nov 26, 2019, is in gross violation of the Supreme Court of India’s NALSA verdict of 2014, and Articles of the constitution such as Article 21 (Right to Life and Liberty), Article 19(1a) (Right to freedom of speech and expression)

1. The primary violation of NALSA seen in the Transgender Bill 2019 is the principle of self-determination. Although the Transgender Bill 2019 does away with the Screening Committee, granting of transgender identity is based on approval of the District Magistrate who has discretionary powers to deny the application. Additionally, for a transgender person to identify as male or female, proof of surgery is required, which contradicts NALSA.

2. We take strong exception to the provision that the primary caregiver for transgender persons – even adults – should be the biological family, and the only alternative is government-provided rehabilitation facilities. There are two issues with this. One, the biological family is often the primary site of violence against transgender children, and trust in the biological family as primary caregiver is misplaced. Second, the Bill completely ignores alternative family structures within which transgender persons have the constitutional right to stay. An example is the traditional jamaat system that has provided shelter and support to transgender women for centuries. Other examples could be intimate partners, friends, etc.

3. The Bill does not contain any mention of reservations in education and employment for transgender persons. This is also in gross violation of the NALSA verdict.

4. Punishment for assault and other egregious offences against transgender persons is limited to a maximum of two years. This treats transgender persons as inferior citizens in comparison to cis women and children, crimes against whom merit more severe punishement. Additionally, clear operational definitions of stigma and discrimination are needed, to ensure that transgender persons are protected against these, and action is taken against offenders. We, additionally, needed an Act for Prevention of Atrocities against Transgender and Intersex Persons, on the lines of the SC/ST Atrocities Act.

5. The Bill confuses transgender and intersex. The Hindi translation of the Bill uses the term “Ubhayalingi” which means Intersex. While we ask that provisions for intersex persons be included in the Bill, we ask that transgender not be used interchangably with intersex. Most transgender persons do not have differences in sexual development (DSD).

6. Transgender identity cards that recognize the rights of individuals to identify within or outside the binary should be issued in all states, as is the practice in Kerala. These identity cards to encompass transmen, transwomen and third-gender individuals.

7. Transgender women should be brought within the ambit of ‘women’ in the Protection of Women from Domestic VIolence Act (2005), as has been recorgnised by the Oct 2019 ruling of a Delhi magisterial court.

8. Free gender-affirmation surgeries and hormone therapies should be made available across the country for trans men and trans women who need them.

Unless these changes are incorporated, we ask that the Transgender Rights Bill (2019) not be given Presidential assent.

In the journey from Zakir to Aqsa, I have lost many things-

1. I have lost my immediate family. Other than my mother, I do not have any meaningful relationship with any of my family members. My brother and his family have boycotted me. I need not elaborate on the importance of having a family. I don’t have one.

2. I have lost my relatives. I have no communication with any relative and have not met anyone for many years now. They are not aware of my transition. All my family members and relatives are blocked on social media. Do you enjoy the company of your uncles, aunts, and cousins? I am not even allowed to meet them. I have stopped going to my hometown of Mumbai and my relatives are not allowed to visit me here by my family.

3. I have lost my friends. I have lost some of my closest and best friends simply because I decided to be myself.

4. I have lost money. Transition is not a cheap affair, especially since the facilities are not available in govt hospitals. I have invested lacs of rupees in my transitioning.

5. I have been afraid of losing my job. Yes, you read this right. However progressive may we call ourselves, I was afraid I may lose my job because the name on my degrees doesn’t match my new legal identity.

6. I have lost social connections and respect. It is difficult, exhausting and uncomfortable to be brave everyday, to explain to every person and to face their reactions. How do you avoid this? You retreat into a shell. I may appear confident but I am a timid tortoise who wants to go back to my shell in a jiffy at the smallest of sign of danger.

7. I have lost security. Being a non-passing trans woman puts me at risk of verbal, physical and sexual harassment every living day of my life. Not all fears come true but not all fears are invalid.

8. I have lost respect and popularity. Many many people who used to appreciate me previously now don’t even look at me and their eyes speak to me what they think about me.
An abomination.

9. I have lost my ability to be a biological parent. In the current circumstances, that is not feasible. I have lost the right to contact my nephew who was also my foster child and whom I raised for 5 years

10. I have almost lost the chance of finding a loving life partner. It is very rare for persons like me to find a suitable match – a loving life partner who would accept me and love me the way I am. All I get are creeps.

Now, though I have lost so many things, I am happy and satisfied with my decision.

And if, hypothetically, I were in a similar situation again, I would choose what I chose, again.

 

 

 

“We participated in the Ms. Koovagam 2019 organised by South India Transgender Coalition with our play Vellai Mozhi, a solo show performed by Revathi. This was our 25th show. We were not aware that the organisation had received sponsorship from Vedanta group’ s Sterlite factory. We are shocked that this organisation has stooped to this level. It is also sad that the organisers, who are well aware of our political perspective, have embarrassed us. We publicly apologise for having been part of this event this year.”

அ. மங்கை, ஶ்ரீஜித் சுந்தரம், ஆ. ரேவதி:

“தென்னிந்திய திருநங்கையர் கூட்டமைப்பு சார்பாக மிஸ் கூவாகம் 2019 பொது நிகழ்வில் ஆ. ரேவதி வழங்கிய வெள்ளை மொழி ஒரு நபர் நிகழ்வு நடைபெற்றது. இது அந்நாடகத்தின் 25 வது ஆற்றுகை. அதில் நாங்கள் கலந்து கொண்டோம். தொடர்ந்து திருநர் மற்றும் மாற்றுப் பாலின சமூகத்தோடு பணியாற்றுபவர்கள் என்ற வகையில் மிகுந்த எதிர்பார்ப்போடு நாடகத்தை நடத்தினோம். இந்நிகழ்ச்சிக்கான நிதி ஆதாரம் ஸ்டெர்லைட் மற்றும் வேதாந்தா நிறுவனத்திடம் பெறப்பட்டு இருப்பதை நாங்கள் அறியவில்லை. இந்த அமைப்பு அவர்களிடம் நிதி உதவி பெறும் அளவு இறங்கும் என்ற அய்யம் கூட எங்களுக்கு எழவில்லை. அமைப்பாளர்களுக்கு எமது அரசியல் நிலைபாடு நன்கு தெரியும். மக்கள் விரோத நிறுவனமான ஸ்டெர்லைட் உதவியோடு நடத்தப்பட்ட நிகழ்வில் பங்கேற்றமைக்கு மனதார வருந்துகிறோம். பொதுவெளியில் மன்னிப்புக் கோருகிறோம்.”

Further reading on Vedanta’s human rights violations:

• Amnesty’s archives of human rights violations of Vedanta in Thoothukudi: https://amnesty.org.in/india-region/thoothukudi/
• Sterlite protests in Tuticorin: Vedanta’s businesses violate human rights, bypass environmental norms globally, says Nityanand Jayaraman. Greeshma Rai in Firstpost, 2018. https://www.firstpost.com/india/sterlite-protests-in-tuticorin-vedantas-businesses-violate-human-rights-bypass-environmental-norms-globally-says-nityanand-jayaraman-4482599.html
• Wikipedia page on Thoothukudi massacre  https://en.wikipedia.org/wiki/Thoothukudi_massacre
• ‘Vedanta violated laws, tribal rights’: Sumana Narayanan in DownToEarth. 2015. https://www.downtoearth.org.in/news/vedanta-violated-laws-tribal-rights-50
• Video coverage of transgender women-led protests in Chennai against Vedanta-Sterlite. 2018. https://maharashtratimes.indiatimes.com/video/news/transgender-community-conducts-anti-sterlite-protests-in-chennai/videoshow/64329406.cms

Mainstream media coverage of the Koovagam-Vedanta issue is at https://timesofindia.indiatimes.com/city/puducherry/koovagam-event-held-with-vedanta-backing-condemned/articleshow/68913789.cms

Taking this as a possible way of also tabling the issues around family laws faced by queer people, some of us, queer feminist LBT* activist individuals and organisations also made a submission to the LCI in July 2018. Our recommendations attempt to expand and alter the notion of family and also flag some issues arising out of the NALSA judgement. We share these here to broaden the debate and welcome comments and discussions on these issues with others.

July 10, 2018

To

Law Commission,
Justice Dr. B S Chauhan

 Subject: Response to Law Commission on Uniform Civil Code

We are a group of feminist organisations and individuals who have been working with lesbian and bisexual women and trans persons and are also part of the larger women’s rights movements in the country. Details of our work and backgrounds are attached with this letter.

Many of us have been part of discussions and debates on gender justice in family laws. We have all been working with communities that do not usually get covered by the ambit of family laws, and yet who get affected directly by laws around inheritance, custody and adoption of children, which are directly under the purview of personal laws.

In the last few years, there have been many debates around different assertions of gender and sexuality in society and very often in the courts as well. The latest judgement that has given relief to a large number of citizens and which is hailed as a landmark ruling is the verdict given by the Supreme Court in April 2014 in NLSA vs Union of India and ors. In this verdict the Supreme Court upheld the right of “transgender persons right to self-identified gender” and directed “the Centre and State governments to grant legal recognition of gender identity such as male, female, or third gender.” It also directed the Central and State Governments to take measures to safeguard their fundamental rights.

In this judgement the esteemed court looked at and referred to some of the Yogykarta Principles and said that “ Principles . . .  including Yogyakarta Principles, which we have found not inconsistent with the fundamental rights guaranteed under the Indian Constitution, must be recognised and followed, which has sufficient legal and historical justification in our country.

We would like to highlight in the context of the debate and enquiry on the Civil Code or on laws related to marriage, divorce, inheritance, custody and guardianship Principle 24 of these Yogyakarta Principles.

PRINCIPLE 24. The Right to Found a Family

Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.

States shall:

a) Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity;

b) Ensure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration;

Since the Law Commission is looking at issues related to Uniform Civil Code, we use this context to give suggestions for changes within family laws so that justice is done to all citizens of this country and the mandate of the Supreme Court verdict is also adhered to.

Our submissions can be classified under two heads.

1. Issues in family laws that have cropped up since the Supreme Court recognised genders beyond male and female and also that self identification is the way to determine a person’s gender.
2. Issues arising especially with respect to key decisions and choices in lives that are not approved by natal families.

Collectively, we have a vast pool of experience in both these areas and we explicate below our concerns and our specific requests for inclusion in the laws related to the personal and the family. These are essentially insights that we have gained as part of our larger struggle for getting equal rights for all citizens of this country.

1. Issues related to Transgender persons’ rights in existing laws:

As soon as gender identities are recognised, there are issues that come up in the context of family laws and we would like to highlight them and request you to address them in your report on the civil code or family laws as the case may be.

The family is an institution where the gender roles are well defined and laws reflect some of these notions of gender practice at the level of the family even today. All our family laws clearly identify a person by their gender. It could be in terms of differential inheritance for sons and daughters, or it could be different clauses as reason for divorce for husband and wife, or it could be ability or inability to be declared guardian of the child.

When there are such clear directions based on the gender of the person concerned, there obviously arises the question of what happens if the person’s identity is neither man nor woman? Also if the person chooses a gender identity that is different from what they have been assigned at birth then how do these criteria affect their other rights and responsibilities in their familial roles? We urge you to look at the following incidents which are all concerns of people that we have been in touch with.

1A. Issues related to marriage and divorce:

Marriage is defined as possible between a man and a woman within all laws. Even though Hindu law speaks of marriage between two persons, it actually throughout speaks of husband and wife thus assigning specific genders to the two persons in marriage. The SC verdict says that people can self identify as “either male, female, or transgender/third gender”. All people today are assigned either male or female at birth and so the self identification means that at some point a person might self identify in a gender different from that which they were assigned. This creates some issues around marriage laws.

a. Two people are married under any personal law or the Special Marriage Act. If at some point in their marriage, one of them self identify as a gender different from the one they were at the time of marriage, with full consent from their spouse, and if they want to continue to live together in the marriage, how would their rights as a couple to be recognised as parents of children, to being considered as family in any employment or insurance or property related right be protected?

V and A married under the Hindu Marriage Act and now have a child. V has transitioned from male to female with the consent and full knowledge of the spouse A. V and A plan to stay together and remain married, and raise their child together. They are worried about the legal validity of their marriage if V changes her legal gender to female, in accordance with her physical transition.

b. In our reading of the law if a person self identifies a gender within the binary (that is  if they were assigned male at birth but self identify as female or vice versa), they shall be considered a man or a woman and hence can get married under the law. This needs to be clearly stated so that people access formal systems of marriage and do not suffer because they did not register their marriages formally. We give below a recent case of a trans man and his wife who suffered because he did not get the required legal protection of the law and the family to survive through their differences.

C, a trans man ,was in love with a woman H. He proposed to her and she married him with full knowledge of the fact that he was a trans man. Both their families knew about this marriage and relationship. Post marriage, C went through his transition surgery in the same hospital where he worked with his wife nursing him. The couple also went in for IVF to get a child but were unsuccessful. C supported his wife’s family financially and also helped her set up a beauty parlour. Through this whole period they did not register their marriage. Subsequently, H fell in love with a cis man. Her family started dissuading her from keeping her relationship with C and also taunted C for not being a ‘real man’. C and H separated. One day C went to meet H in her beauty parlour to ask her to restart the relationship, she firmly refused. In frustration C doused himself in petrol and lit a fire right there and died a week later.

c. What are the provisions for a transgender person who wishes to marry a cis man or a cis woman? We know of many instances of such marriages especially of hijras marrying cis men and unable to register these as marriages. Some have even tried to do so and failed.

1B. Issues related to inheritance:

In some of our existing laws there is a differential treatment between sons and daughters of a family and also difference between male and female relatives. The question that transgender persons are asking today is that in case they transition, will their inheritance rights change as per these laws? Also if they identify a gender different from male and female then what will be their inheritance rights?

The same person cannot have different rights because they identify in a different gender. The debate here for us is not of identifying the “true” gender of the person and giving them rights as per that.

As we understand this is actually a case for demands for gender equality in all laws, a demand that has been raised by women’s groups and women’s rights advocates for a long time. We believe that self identification of gender actually unravels before us the social construction of gender. In a secular democratic country where the Constitution assures no discrimination based on sex, such differential laws do not make sense.

So we hope that all inheritance laws are made equivalent and irrespective of the genders of the persons in the familial relationships.

1C. Issues related to Adoption:
Adoption and guardianship laws are also gender dependant. This affects the rights of those who already have children prior to their transition and also those who wish to adopt children. In recognising the full civil rights for transgender persons, right to adoption and guardianship is an important aspect that needs to be looked at.

As per the new CARA guidelines and changes within the J J Act, a man cannot adopt a girl child while a woman can adopt a boy child. How does this clause apply to trans men and trans women? What about a person who identifies as transgender or third gender? Can they adopt a child of any gender?

Again as in the case of inheritance, we think that the law should not be gender dependant. If there is fear of CSA and the redressal for CSA under POCSO is gender neutral, this clause makes no sense at all. We urge that the adoption guidelines be made gender neutral.

To conclude, all of the above situations arise from the fact that currently in India we have recognised the fact that people can self identify a gender different from the one assigned to them at birth. At the same time along with male and female, there is recognition of other genders as well. This immediately suggests that a number of laws need to be altered or formulated afresh so that an already neglected and marginalised community of people gets full access to rights as citizens within the country.

We understand that most of the family laws are religion based and there may be a problem in amending all of them to take into account these realities. Changes within the special marriage act to accommodate some of these concerns and also making of secular inheritance and adoption laws accessible to all citizens irrespective of the religion that they are assigned at birth, in our opinion seems to be the way in which many of these dilemmas can be addressed.

2. Issues related to key decisions in lives not approved by natal families.

In the work that we do, and in many of our lives, we find that our support systems and care networks are very different from our natal families. Often when people make choices in their lives that are distinct from those that their families want them to make, they make support systems that draw upon others not necessarily the natal family. This could be friends, other people like them, or other community spaces like the hijra households. In case of those assigned female at birth this happens more often since parents and even the State often see unmarried “daughters” as incapable of taking decisions about their lives.

We have many instances of how families control people’s lives in multiple ways. From the point of view of families, it is done in the notion of looking after the welfare of the adult person concerned but in effect it means being the medium to impose societal ideas of normative gender and sexuality. The methods used are often very harmful and very difficult for those who resist and get out and assert their choices.

When a trans man started expressing his gender identity and dressing as a man his family thought he had been possessed by a demon and took him to the local exorcist. He stayed with this exorcist for days and was sexually abused, often to the point of losing consciousness. The exorcist even offered to marry him. Realising how wrong the entire situation was, he ran away and returned home, where his parents weren’t happy to see him. They forced him to wear a burkha and locked him inside a room for months. The situation was such that, he had to run away from his natal home.

R is a single child of her parents. She is in her late twenties and from a town in Assam. She works as an assistant professor in a college. Her father is the principal of the college. Her family has recently come to know about her sexual orientation as a bisexual woman. She is constantly kept under surveillance. Her father has setup a CCTV camera in her room. She is forced to hand over her entire salary to her father as soon as she receives it. She encounters mental torture from her natal family members every day. We have found out about this person recently and she is still in contact.

A woman X and a trans* person Y, both taxi drivers were in a deep friendship with each other. Their messages were intercepted by X’s family. She had to run away from home and started living with Y. Due to the pressure of the family she even gave a statement to the police that she had run away. Within a few days the family came and abducted her back with full support of the police. They confiscated all her papers, her certificates, her driving license and kept her under house arrest. She managed to run away and come back but the organisations supporting her had to fight a hard battle with the police and the family to get all her papers back so that she could continue to drive her taxi and live independently with her friend.

G was a 22 year old trans person who was assigned female at birth. G wanted to start their medical transition but their parents did not support them through this. They managed to get some organisation’s support and approached a doctor. The doctor, however, also refused saying that they could not start any procedure including administering of hormones without the parents’ permission. Feeling helpless G jumped off a four storey building and killed themselves. This is a case from May 2018.

These are just a few of the many examples that we have come across of the nature of family violence against people asserting their gender and sexuality related choices. They are subjected to many punishments like physical and mental abuse, sexual abuse, corrective rapes, humiliation, house arrests, denial of education and other entitlements, disinheritance from property, abandonment and neglect, forceful medical corrections like ECT and administering of harmful drugs, forced marriages and pregnancies, and many more.

Many people do not manage to get enough support to survive all this and build a life of their choice. Either they succumb to live lives dictated by others or are forced to end living. Some of us do manage to survive through this all and make a life for ourselves with the help of others, often people in similarly precarious life situations as themselves. These others who are the support structure, however, do not have any legal recognition.

Hence, at some point of vulnerability like a bout of physical or mental illness or any other crisis, the natal family steps in to take decisions and force these on the person while completely denying the established support structure to be involved in this decision making. This is often in violation of what the person themselves may choose.

Two persons lived together for six years. At a time when one of them went through a mental breakdown partly due to their family’s disapproval of their life, the family swooped in forcibly taking decisions about health care and separated the two. It took many friends and supporters and a lot of negotiation with the hospital authorities and the family to be able to assert the fact that the two people were living with each other consensually and that it was unjust to do this separation.

A trans man and his partner lived together for three years. The woman partner had a child while they were together and they both brought the child up together. On the sudden death of the woman, the trans man had to struggle to claim their child as his own because the natal family wanted to establish their  kinship and take the child from him.

P ran away from an abusive home at the age of 18 to be able to live in her self identified gender identity and found home and support in a hijra gharana. At the age of 24 she suddenly died. Her family was informed and as soon as they came they took charge of the last rites for P. They dressed her in male clothes, cut her hair, and finally did her last rites as their son with the name they had given her. None of her large family of grieving hijras and other friends and activists could prevent this from happening.

It is evident from these examples that for many of us our natal families (by birth or adoption) may not really be the people we want to leave our property, earnings or loans to; we may not see them as taking over care functions in times of debility and disability; we may not see them as deciding for us at times of medical incapacity and so on. Instead we may want to appoint person/s who we think can take care of our material, medical and other needs during our lifetime and after death.

To help resolve these situations we suggest that there be some way by which people are legally able to announce the names of the persons who can take decisions for them or who they feel are better suited  to be called their “legal representatives” rather than the ones legally acquired through blood.

The “Legal Representatives” shall act on our behalf in life and death in matters related to:

• Choice of profession
• Choice of living arrangements
• Choice of nominees
• Choice of custody of minor children
• Choice of heirs
• End of life decisions

We request the Law Commission to issue guidelines for people to register their legal representatives through affidavits or other methods which are accessible and easy to execute with a standard format.

This option be made available to all those who are not in marriages recognised by law.

These are some preliminary suggestions from a few groups and individuals who have been working with and living such lives for many years now. We urge the Law Commission to seriously consider these lived realities and suggest changes in family laws to account for these lived realities. We also wish to impress upon the commission the need for very large consultations with many others across the country so that all citizens can avail of just laws related to family.

Thank you.

Chayanika Shah. LABIA – A Queer Feminist LBT Collective, Mumbai
Minakshi Sanyal. Sappho for Equality, Kolkata
Maya Sharma. Sabrang, Vadodara
Rituparna Borah. Nazariya – Queer Feminist Resource Group, New Delhi
Rumi Harish. Alternative Law Forum, Bengaluru
Deepti Sharma, New Delhi
Jaya Sharma. New Delhi