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Recommendations to Ministry of Social Justice and Empowerment (MSJE) for India’s emerging Trans Policy

Towards India’s emerging Trans Policy, eleven authors put together recommendations to the Ministry of Social Justice and Empowernment [MSJE] with a special emphasis to Trans Masculine communities. The Signature Campaign  signed by 74 Trans masculine persons from across the country [see letter here] was an annexure to the recommendations listed below.

These recommendations are in response to an invitation from the Ministry seeking inputs for consideration by the Expert Committee constituted for this purpose.

The Hindi version of the recommendations is here


OPENING REMARKS: A Brief note on Transgender Persons with specific reference to Trans Masculine Communities.


It is to be noted that various government consultations have been going on with the Hijra and other Trans feminine communities, especially since the year 2009. Unlike this, no consultations have been organized for the Trans masculine communities. This continues to reflect in the ongoing government processes, where policy is being conceived only for Hijras, Aravanis and other trans feminine communities.

Our very first recommendation would be for the government to hold a separate consultation for the Trans masculine communities and time be allotted for due process to happen at the larger community level. Given the sheer risks of visibility as a trans masculine individual, very few individuals have been able to claim space in the public domain. And not being organized socially as most of the trans feminine communities have done historically, this process of consultation has to be planned with care and allotted due time.

Nothing about us, without us. Our second main recommendation is that transgender persons be included in any policy drafting process that involves them. They should be included from local transgendered community, including those of rural, adivasi, dalit and religious minority backgrounds. There are large numbers of transgender persons existing outside the groups of NGOs and advocates, who must be consulted. None of the changes implemented by the government should be channeled through NGOs, but through the state welfare boards where all individuals in the community can elect representatives through democratic means.

The second, equally urgent point that we would like to make is that in recent times, terms like PAGFB and PAGMB – ‘Persons Assigned Female at Birth and Persons Assigned Male at Birth’ are being used as acronyms for the trans community. We are offended by these words and would ask the Government and larger development sector to refrain from using them. Please use words that the community self identifies with, and for the trans masculine citizens, these are mostly words like: FTM and Transman. The larger community, instead of being addressed as PAGFB community, should be addressed as the Trans Masculine Community.

The Government has the responsibility to look into the entire spectrum of the Trans population, not just the Hijras and other trans feminine communities. If it does not take into account the diverse range of gender identities and expressions, it will run the risk of having a Policy document that will priviledge certain gender identities and expressions over others. This will continue to exclude certain sections, and our fear is that the trans masculine community, will not be adequately represented in the upcoming Policy document. This will sadly be a very significant opportunity lost.

We strongly recommend 4-5 National level Government Consultations to discuss and plan among the wide range of trans people in this country.

The remaining recommendations follow:

GENDER AFFIRMING CITIZENSHIP RIGHTS FOR TRANSPERSONS
Right to Legal Recognition for Chosen Gender.

The trans communities of India are too diverse and have different histories and current realities. We recommend:

1. The chosen gender of a transgender or intersex person should be respected. A 3rd Gender Category should be made available and reflected in all dealings with the government, whether through National and State Identity documents, Regular Government work, School and College certificates, Government Health facilities and all other legal matters.

2. Under this category, there should be a provision to fill in one’s preferred gender identity, [given the country’s various gender identities according to region and subculture; examples of trans feminine gender identities: Thirunangai, Mangalamukhi, Aravani, hijra, kothi, kinnars, jogappa, shiv shaktis’ examples of trans masculine gender identities: thirunambi, ftm, gandabasaka, transman, babu, bhaiya]. A space should be left blank for trans people to write their chosen identity since the diversity of expressions and identities cannot be adequately captured in a pre decided listing of options.

3. A 3rd gender category being made available as an option should not mean that all trans people compulsorily have to tick that particular column. Trans people who wish to tick on the male/female column should be allowed to do so.

4. Availing services set up by the trans welfare board, if/when that is set up, could be done through a separate identity card that can be issued like it has been done through the Aravani welfare board [ although it should take care to not exclude trans men as the latter has done].

5. The government should rework the meaning of gender in IPC section 10 Man, Woman, which says, “The word “man” denotes a male human being of any age; the word “woman” denotes a female human being of any age”. This should be changed to “any human being though born male, female or with intersex variations, has a right to take on any gender which will reflect in all their civil, political, social, economic and cultural identification without any ridicule, harassment, denial, rights violation, and be accepted with dignity and respect by all”.

6. Sex Reassigment Surgeries should not be a determinant for change of legal identity.

GENDER AFFIRMING – SCHOOL & COLLEGE EDUCATION

1. To expand the understanding of Gender and Sexuality beyond the binary of male, female and heterosexuality- through school/ college curriculums, extra-curricular activities and teacher trainings through trained counsellors.

2. Change allowed in birth certificates/school and college leaving certificates/professional degrees – as per gender of choice.

3. To provide for name and gender change documentation for a current or ex-student who wishes to reflect the gender category different from what might be on the educational institute’s record at the time of joining. Many trans persons fall out of the educational system because the teaching- learning environments are geared only for those who clearly identity as either male or female. This results further, in severe social exclusion of those students whose sense of self does not neatly fit into these two gender categories and they will more often than not drop out of school. In other cases, a similar fallout will result if a school/college going trans person choses to go through gender affirming hormone therapy or surgical procedure/s and the change in documentation at the school/college will be debarred.

4.To award scholarships reserved for Trans Students in Government Educational Institutions – at all levels of education.

GENDER AFFIRMING – MEDICAL AND PARA MEDICAL EDUCATION AND HEALTH SERVICES

1. To expand the binary ideas on sex and gender to include the full range of gender and sexual expressions and orientations”, within medical and para medical education and training.

2. To stop pathologising human bodies that do not fit into the neat biological categories of male and female, through now outdated diagnostic frameworks.

3. To stop the requirement of a GID diagnosis as a basis for accessing Trans Healthcare.

4. To provide subsidized Trans Healthcare Services, meeting International Standards of Care procedures at atleast one major Government Hospital in each state. These services to have mandatory periodic reviews for procedures, practices and quality of results.

5. To initiate a sensitization and training drive in all government healthcare facilities about the special needs of the trans population vis-a- vis General Health and in Medical Emergencies.

6. To have dedicated trans wards in Government Hospitals.

7. To integrate the latest recommendations of International bodies like World Professional Association of Transgender Health [WPATH] into medical education and practice.

8. To start a separate specialized inter-disciplinary area of medical education and practise by the name of Trans HealthCare, especially in Teaching Hospitals across the country.

9. To initiate dedicated measures for trans sex workers to access without discrimination, stds and sti check ups & treatment and life saving HIV treatment, prevention, care and support services.

10. No exception to consent should exist for transgender people during medical procedures: Consent should be required even when penetration of a patient by a doctor occurs for “proper hygienic or medical
purposes” which is currently a defined exception for rape. Unless the patient is unconscious, doctors must have the full consent of a patient for any form of penetrative medical care and if the patient is unconscious this must be with their chosen medical decision making person present. This is because many doctors instead of treating transgender patients for the physical problems they have, take it upon themselves to satisfy their curiosity to find out what the transgender person’s body is “really” like, and sexually harass, molest, and assault their patients.

11. Psychiatric “treatment” for trans persons. Several psychiatrists have been known to provide false diagnoses and subject their patients to invasive treatments and drug control in order to subdue the person. This is almost always done in collusion with the family and without the patient’s informed consent. Any psychiatrists attempting to “cure” persons of their gender identity will be guilty of malpractice and liable to lose their license and this should be made punishable by law.

12. No procedure should be made a mandatory part of medical gender affirmation. The procedure should be elective by the person seeking it.

13. Government to provide for gender affirming procedures through their own insurance schemes and as well as through those of the private insurers.

GENDER AFFIRMING – LAW

1. There must be a comprehensive anti-atrocities act that spells out the rights of transgender people to gender expression of any kinds and punishes discrimination and atrocities against people based on gender identity or expression. The atrocities perpetrated against transgender persons range from rape, rape by insertion of objects, stripping, mutilating the genitals, to forcibly cutting the hair of trans women,forcibly imposing a dress code which is different from the chosen gender, confinement etc. There is also verbal abuse which must be a punishable offence.

2. An anti-discrimination act must enable transgender people to take legal action against any form of discrimination encountered in pursuing their education, getting hired for a job, getting access to housing,
access to healthcare, access to bathroom space, access to public transport, etc.

3. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion and demand their routine reporting to the police act as a vehicle for police harassment and sexual violence against transgender women. These should be immediately repealed.

4. Reservations for Trans persons should be made in all Government Departments.

5. Make sexual assault, sexual harassment and domestic violence laws inclusive: The gender of the survivor in laws on sexual assault and harassment should include all people regardless of gender.
Only women can file cases of sexual assault under current laws. We recommend that to protect all minorities who face sexual assault this be changed to include trans people as well, since the grossly disproportionate, staggering number of incidence of crimes of a sexual nature against these communities is well documented and acknowledged globally.

6. Once the laws on sexual assault provide protection to all people regardless of gender, there should be no need for Section 377 and it should be scrapped. All consensual sex, whether commercial or not, whether private or public, should be decriminalized.

7. Many people who are seen as women by their families are forced into marriages and many people including lesbians and transgender persons are sexually abused by the husband in the most inhumane manner. We insist that marital rape should be included in the sexual assault law IPC Section 375. The punishment for rape should be the same irrespective of whether the perpetrator is married to the victim or not.

8. In sexual assault laws consent must be clearly defined as verbal agreement which can be withdrawn at any point during sexual activity. Initiation of sex is not a reason for specific unconsented acts to not be considered legal. Sex workers should have a right to redressal for any sex acts not agreed upon in the commercial negotiation.

9. The legal age for transgender persons to exercise autonomy as individuals, engage in consensual sex, leave their biological families due to persecution and seek Trans Healthcare, including hormone therapy and gender affirming surgery without insistent that parents and family be involved, should be lowered to 16 to give them enhanced protection against false cases filed by families and family violence.

10. Legal protection against public defamation – Disclosure of the gender status of trans persons without their consent leads to trauma, discrimination, loss of job, public violence and other kinds of oppression. Laws should be made to protect identities of trans people. This should include protection from appearing in media without full consent of trans persons involved and any other kind of disclosure by any person or institution leading to further victimisation.This can be similar to protections offered to victims of rape and sexual assault from disclosure of identity.

GENDER AFFIRMING – LAW IMPLEMENTATION

1. The choice of genital surgery/removal of reproductive organs lies with the individual. Enforcing/Insisting on such procedures [a current “requirement” by surgeons for issuing sex change certificates] is tantamount to forced sterilization and should be made punishable by law.”

2. Sex assignment at birth – of intersex infants – into either male or female to be made punishable by law.

3. Detention places like Prisons to have dedicated Units for Trans Inmates – with proximity to/provision for regular family and community support.

4. Trans Inmates to have access to Trans Healthcare and HIV treatment in prisons.

5. State Human Rights Commissions and the National Human Rights Commission [NHRC] to have a dedicated cell for documentation of Human Rights Violation against the Queer community.

6. Complaints about harassment, atrocities, discrimination etc made to the trans welfare board or a national commission for trans people must ensure the setting up of an enquiry through the police or a state enquiry commission whose evidence or findings will be permissible in a court of law.

7. Any complaint made by a trans person in any police station should be forwarded to and brought to the notice of the trans welfare board which will then assist the complainant in their complaint, follow up and further proceedings without fear of further victimisation or discrimination.

8. Transgender people must be handled by women police officers and not male police officers. The rules about arresting and detaining women at night should strictly apply to transgender people and sex workers.

9. Any state official including the police found to be acting contrary to their public duty of protecting the citizens of the country by harassing verbally, physically, sexually or by inaction or refusal to register a complaint by a trans person should be criminally tried and disciplinary action should be taken against them.

GENDER AFFIRMING – WELFARE MEASURES

1. No government policy implementation should be routed through third parties including CBOs and NGOs.

2. Trans Welfare Boards should not be mediated by NGOs.

3. Trans people should be included in all Government Schemes and this should be well advertised by video and audio messages in all rural and urban areas.

4. State Housing should be provided to Trans people.

5. Government should ensure employment for Trans people.

6. Welfare measures such as reservation in jobs and education is neccessary for trans people to have livelihood options apart from begging. The state could follow the model of the Karnataka and Tamil Nadu governments which have made commitments to reservation for transgender people. A transgender welfare board along the lines of what has been set up in Tamil Nadu could also be implemented with the provision that it should cater to all trans people including transmen and Intersex people.

7. There must be a free hostel for transgender persons– setup near all major government train and bus hubs in cities to ensure safe accommodation for trans people fleeing their homes.

8. It must be made mandatory for all institutions—public as well as private—to have three categories of lavatories: for trans people, cis women and cismen.

9. A free government LGBTI helpline and other emergency services

should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations. Calls should be addressed by trained staff in each state and responded to by a team set up by the transgender welfare board and paid by the state for this work.

10. Media Camgaigns should be conducted by the government to educate people about trans issues.

SPORTS

Various organizations in other parts of the world have addressed the issue of transgender women taking part in sports. The International Olympic Committee published the Stolkholm Consensus Statement in 2003 where they suggested that all transwomen will require surgical anatomical change and hormone treatment for two years before they could take part in women’s events. But this policy remains controversial to this day and is being reviewed currently.

International sporting organisations have been struggling to come up with satisfactory policies in relation to participation of transgender athletes and athletes with intersex variations in women’s events. They have banned the notorious ‘gender-verification tests’. However, the current policy on eligibility of female athletes with hyperandrogenism, mainly created to manage cases of athletes with intersex variation, is considered no less controversial thn the ‘gender-verification tests’ of the past.

In India, The Ministry of Youth Affairs and Sports has published a Standard Operative Procedure ‘to identify circumstances (female hyperandrogenism) in which a particular sports person will not be eligible to participate in competitions in the female category. [However, various parts of the SOP are very objectionable and recommendations to make certain modifications have been made to the Department of Sports, Ministry of Youth Affairs and Sports, by Dr Payoshni Mitra in 2013].

In light of this, here are some recommendations or guiding principles for inclusion of trans* people with special emphasis on transwomen in sports:

  • Transgender people should have equal opportunity to participate in sports
  • Policies governing transgender athletes in sports should be based on sound medical knowledge and scientific validity but should also take into account experiential knowledge of transgender people and views of experts on bioethics, gender and sports.
  • Privacy of medical documents of transgender athletes (if any) should be respected. However, a panel of experts consisting of medical as well as non-medical experts especially, those who work on bioethical issues around sports participation of transgender and intersex people must be created to ensure that athletes are explained pros and cons of any medical intervention enabling them to take informed choice and thus safeguarding athlete’s welfare concerns.
  • Informative and effective educational resources related to participation of transgender and gender-variant issues must compiled and made available to sport administrators, staff, athletes and doctors affiliated to Sports Authority of India centres and all national governing bodies of sports.
  • Indian constitution protects everyone from discrimination on the basis of sex. Non-discrimination on the basis of sexual orientation, gender identity and intersexuality in sports as in other fields of life is a logical extension of this constitutional right.
  • It is recommended that a panel of experts comprising of medical and non-medical people working with transgender people as well as transgender athletes and representatives of the community should be created to formulate a policy for inclusion of transgender people in sports – a policy that may follow IOC recommendations but must also borrow from best practices in the world in order to provide a progressive model of inclusion that could be replicated by other countries in years to come.GOVERNMENT-CONDUCTED SENSITISATION PROGRAMMES

1. Sensitization of all Government Departments, regarding terms and concepts of Gender Identity & Expressions.

2. Sensitisation of concerned Government Departments about the International Conventions on LGBTI issues, e.g. the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity;International Covenant on Civil and Political Rights etc]

3. Gender sensitization modules for police, army and sexual offenders: The police stations and police personnel should be rigorously trained in human rights and women’s rights irrespective of their gender. There should be intensified trainings to police personnel to handle cases of sexual assault on cisgendered women, transwomen, transmen, sex workers, dalit, adivasi and Muslim women. Any police personnel breaking this rule should be punished as being part of the crime.

Authors:

1. Amitava, Transgender woman, Trans Activist, Kolkata
2. Brandt D’Mello, Transman, Trans Activist, Sampoorna, Mumbai
3. Chandini, Transwoman, Trans Activist, Bangalore
4. Elakshi Kumar, Trans-butch, Trans Scholar and Organizer, New Delhi
5. Gee Ameena Suleiman, Transman, Trans Activist, Kerala
6. Kaveri-Karthik, InterGender, Trans Activist, Hyderabad
7. Living Smile Vidya, Transwoman, Activist, Artist, Tamil Nadu
8. Dr Payoshni, Research Consultant, Gender & Sport Issues, Kolkata
9. A Revathi, Transwoman,Trans Activist, Tamil Nadu
10. Shyam, Transman, Bangalore
11. Satya, Transman, Trans Activist, Sampoorna, Mumbai


Orinam note: Please see the Ministry Guidelines uploaded on March 4, 2014,  here.

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  1. The Karnataka Government has included both Female to Male and Male to Female Gender Minorities in its Government Order Copy. Which promises social entitlements. But, nothing implemented yet, accordingly. Akkai

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