Undetermined Discriminations: Trans* persons Rights Emerging post 2014 in India

The legal status of trans* individuals in India was discussed quite extensively in the 2014 case of National Legal Services Authority (NALSA) judgment by the Supreme Court of India. Recognizing the right of individuals to choose their own genders (male, female or ‘third gender’) by reading the right to equality within various Articles of the Constitution of India, the NALSA judgment has indeed made a shift in legal and social discourse.

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.