This talk was part of ‘TransForm: Transgender Rights and Law‘ conference, organized by the Centre for Law and Policy Research (CLPR),  on December 14-15, 2016, and held at the Indian Institute for Human Settlements, Bengaluru.

Orinam thanks Gee for consent to share this on Orinam, and CLPR for making this available in the public domain (see TransForm site for links to other talks).

Extension of deadline from Jan 4 to Jan 14, 2016: The Ministry of Social Justice and Empowerment (MSJE), Government of India, has sought comments on the Rights of Transgender Persons Bill, 2015. The full text of the bill is available here. Comments/suggestions, if any, may please be sent latest by 14th January, 2016, to Smt Ghazala Meenai, Joint Secretary (SD), Room No. 616, ‘A’ Wing, Shastri Bhawan, New Delhi-110001 (E-mail: commentstgbill-dosje@gov.in)

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

The text of the application made by the Government of India, downloadable here, appears less alarming than the IE headline. The application, which seems to have been filed at the instance of the Ministry of Social Justice and Empowerment, seeks clarification on the NALSA judgement of April 15, 2014.

1. In our reading, some of the points raised in the application that are not a cause for concern, or a step in the right direction, are as follows:

• The  application points out that the term ‘eunuch’ is not an equivalent of ‘transgender’ or a variant of the latter and hence it has to be left out. => This is true, and many in the transgender community have pointed out that we consider the term derogatory.
• “…They will include trans-men and trans-women (whether or not they have undergone sex re-assignment surgery or hormonal treatment or laser therapy etc)… and a number of socio-cultural identities, such as kinnars, hijras, aravanis, jogtas, etc.” => This is a welcome point, and bears repeating because some groups, media and government departments around the country have narrowly interpreted the NALSA judgement (particularly Justice Sikri’s section) as being purely concerned with hijras, kinnars and others of transfeminine gender experience.

2. We are ambivalent on the following point:

• TG should not include cisgender lesbian, gay and bisexual people => SC has, in one place (page 93, pt. 107) in the NALSA petition, mentioned that occasionally T is used to refer to LGBT spectrum and GoI wants to ensure NALSA ruling does not apply to LGB. The ruling actually made it clear they were proceeding with the narrow (minus LGB) definition, while acknowledging that sexual orientation a separate issue from gender identity and that some trans people may be LGB. This is thus a non-issue. We fail to understand why GoI seeks a clarification on this matter, unless it seeks to emphasise to its more conservative supporters that it remains opposed to reconsideration of Section 377, an issue that discussion of same-sex orientations among cisgender people may bring up.

3. Two issues that may be a matter of concern:

• The statement that six months (as stipulated by the Supreme Court) is not enough to implement all the changes mandated by the Supreme Court, and the recommendations made by the Ministry of Social Justice and Empowerment need to be rolled out in a phased manner => We hope this does not lead to indefinite delays or any backtracking on the promises of the NALSA judgment.
• The application’s point that the categorisation of transgender people as OBC is a determination that would have to be made by the National Commission for Backward Classes => this could, again, result in indefinite delays until such time as the National Commission considers the issue.

4. While we appreciate the effort the application makes to clarify terminology by eschewing the term ‘eunuch’ we note that the definitions of male-to-female and female-to-male transgender people have been interchanged in the application.

5. Finally we urge the government and Supreme Court to expedite action towards justice, equality and full citizenship for transgender people. If the recent developments in the Ajmer, Rajasthan, case of policy brutality and sexual assault of a hijra are any indication, we remain far from this goal.

Update Sept 12:

An MSJE official has explained that the application was initiated in response to

– representations from community members who had expressed concern that most states preparing to establish transgender welfare boards were interpreting the NALSA judgement to include only hijras, and not considering other trans people

– confusion resulting from a line in the NALSA ruling about ‘transgender’ occasionally used as an umbrella term that includes lesbian, gay and bi people. This has, apparently, led to concerns that cisgender LGB people would use this definition to claim OBC status for themselves.

– concerns raised that SC/ST transpeople may be forced to identify as OBC

– procedural issues regarding who makes the determination of OBC

– the need to let the SC know that the term ‘eunuch’ is neither acceptable nor accurate as a synonym for TG. The NALSA judgement uses ‘eunuch’, ‘third-gender’ and ‘transgender’ synonymously in some portions of the text. Many members of the diverse trans* communities have objected to use of the term eunuch.

Background Reading:

• NALSA judgement
• Government of India application
• Recommendations of the Experts Committee, Ministry of Social Justice and Empowerment
• Read more on the NALSA ruling including summaries and analyses from legal and community perspectives here.

• Expression of Interest (EOI) for Indian applicants – Introduction [English] [हिन्दी]
• Expression of Interest (EOI) for Indian applicants – Application Form in English, Bangla, Hindi, Malayalam and Kannada [English] [বাংলা] [हिन्दी] [മലയാളം] [ಕನ್ನಡ]

Looking forward to hearing from even more trans masculine, intersex and intergender people!

And please spread the word!

Sampoorna Trans Masculine, Intersex and Intergender Meet – Working Group

A brilliant actor on and off the stage. He always would tell you what you wanted to hear. He convinced all of us that he was leaving to go to his sister’s house in Allappey. He convinced us by making calls to his sister in front of us telling her that, letting us all confirm what he had told us. Ramu planned everything in life. Even his death. He was one of the first transmen we knew who had begun his physical transition. The joy he felt on seeing the fuzz on his face form and voice deepen had us fooled into thinking he was moving towards life, not death.

A soulful singer, who had such a beautiful voice, the one thing that the rest of us worried about when he started his hormonal injections was that he would lose his singing voice when his voice dropped. And he was so sharp about things. He would’ve probably been the CEO of some big company if he had an MBA and wasn’t trans.

Born in a working class family in Thuravoor, Kerala, he lost his mother who committed suicide when he was two years old. His older sister, six years at the time, raised him and his younger brother, then, a six-month old baby. They would go to relatives’ houses asking to be fed because his father was never at home. I saw his sister at his house crying inconsolably asking him why he hadn’t asked her to join him when he decided to leave.

When he fell in love, he fell hard and loved with all his heart. He was loved dearly in return, to the point where people were willing to end their lives for him. But he was torn apart from his lovers, separated by families, by the cold forces of gender, money and a vindictive society. These took its toll on him, creating a gnawing despair that grew over time.

The day after he left us saying he was going home, we got a call from the Thrissur Railway Police saying they found his body. We are grieving despite knowing he wouldn’t have wanted us to. He would have wanted us to laugh through this all. But, we are not strong like Ramu. There are times when humour doesn’t work and despair engulfs us. This is one such time. We will never get over this loss. All he had was packed into a little plastic bag and handed over to us by the nurse at the mortuary. A pair of head phones, a platform ticket and 160 Rs: that’s all he left behind. That and the memories of time spent together laughing through all the hard times.

*name changed

We at Orinam grieve the loss of Deepu, a transman, who took his life on Thursday, July 26, 2012, in Kerala.

Deepu was part of the LesBiT theatre group that performed at Nirangal, ChennaiPride’s cultural festival, in 2010. Most recently, he was brought to the screen in Gee Ameena Suleiman’s film Kalvettukal (2012),  a moving docu-fiction on transmen in southern India that screened at Chennai’s Queer Film Festival in June this year.

A condolence meeting will be held in Chennai at 6:30 pm on Saturday Aug 4, 2012 at Spaces, Besant Nagar.

At the meeting,

• we will screen Kalvettukal in tribute to Deepu, and Charu from LesBiT Bangalore will  facilitate a discussion on the issues faced by transmen.
• we will raise funds to help defray some of Deepu’s funeral expenses, based on a request from his family for assistance.
• we also hope to generate a community dialogue on peer support for individuals coping with depression associated with living and loving in an LGBT-phobic society; and on resources available to our communities to prevent more such losses.

The event is being organized by Orinam together with Nirangal and The Shakti Resource Center. For more information on the event or to make a donation, please contact us. 

Click here to listen to an excerpt of the song Teri Diwani rendered by Deepu, that he had posted on his Facebook wall in June 2011.