Reflection of Transgender Community: NALSA to Modi 2.0
While the decisions regarding LGBTQ+ and transgender loom large on the second Modi government, the active participation of the transgender community facilitates greater room for the demands and their viability in a political environment.
The NALSA judgement in 2014 was a landmark one for the transgender community. The notion of acceptance grew larger when the Supreme Court initiated the idea that self- recognition or their self-identified gender is to be upheld. The judgement also saw extension of reservations in education and public appointments to the third gender under the OBC category.
The question of self-identity also became important as DMK’s Tiruchi Siva introduced The Rights of Transgender Persons Bill in 2014 as a Private Member’s Bill in Rajya Sabha.
The Bill under section 26 can create a National Commission for Transgender Persons as a public organisation that enables transgender persons to attain a standard of sensory, intellectual, psychiatric, social and vocational ability in terms of their inclusion. The idea of reducing barriers that connote to discrimination that the community faces, violence or hate speech against them would also connote to a criminal offence and creation of transgender right courts.
The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions, despite rejection by many members who sought to correct the anomalies in the Bill.
“After consultation with transgender activists, The Transgender Persons (Protection of Rights) Bill, 2015 with crucial amendments was introduced in Lok Sabha in August 2016. The Social Justice and Empowerment Ministry’s Standing Committee made these changes within a limited period of time.”
Some of the recommendations that find a place in the final draft include the rescue, protection, and rehabilitation of transgender. Educational institutions have been directed to adopt an inclusive approach that is gender-neutral. The government has also formulated welfare schemes especially targeted at transgender such as basic medical facilities including sex reassignment surgery. Vocational training programmes are also in the pipeline.
The amendments weren’t all well received by the community and were seen in contradiction to the ideas of acceptance and protection that the NALSA judgment initiated. For instance, it was unable to cleanse the social stigma.
The definition adopted by the Bill was a transgender person is one who is: (a) neither wholly female nor wholly male; or (b) a combination of female or male or (c) neither female not male.
With this as the basis of definition of third gender, on December 17, 2018, the Bill was passed in Lok Sabha. Although seen as a ‘black day’ by the transgender community, Thaawar Chand Gehlot, former minister of the Social Justice and Empowerment Ministry found no problems with the Bill, and rather precluded that it was in the interest of the transgender community.
With all of its 27 amendments, it was said to run contradictory to the progressive and inclusive nature of the NALSA judgment. The idea of legal recognition is of extreme importance, however when the rather complicated form of deriving a certificate of ‘third gender’ was brought in, it wasn’t seen in coherence with self-recognition/identification of being transgender.
While it has criminalised discrimination on the grounds of sex, it maintains that transgender are covered under the legislation for inheritance. It must be noted that it is often the families of transgender who excommunicate them and push them into penury. Instigating transgender into beggary or leaving their domicile is a punishable offence for which the maximum term is two years.
The ambiguous nature of third sex often led to misinterpretations, as non-conformist sexual orientation and transgender often found themselves as receiving backlash due to the misinterpretation of Section 377, back when it wasn’t decriminalised.
The idea of updating one’s gender status to third gender was also socially questioned.
The provisions for jobs had been lost in transition as well as the functioning of the National Commission for Transgender Persons. Although instigating transgender into beggary is a criminal offence (punishable for two years) but it wasn’t duly noted how for many of them, beggary becomes the only source of income generation due to the excommunication they face from the rest of the society. It also criminalises traditional occupations such as badhai (offering blessings for money) and sex work which at most times are seen as the only resort.
“What seemed as a major issue for the community was the mechanism for recognition of identity. Chapter 3 of the bill outlines the mechanism, one that disregards the provisions of the NALSA judgement of self-identification and a broader understanding of gender.”
The mechanism is that the transgender person applies for a certificate of identity to the district magistrate, who refers it to a district screening committee who will issues the identity of the person. There are grounds for medically ascertaining a person’s sexual identity. There is a physical examination that will take place, which the community sees as derogatory and also as a violation of the Right to Privacy. This certificate will then be used in order to generate documentation and conferral of rights of a transgender person.
The community fears that the transformation of the bill in to a law will do very little for them and disregard the very intention of the Bill in the first place.
The Lok Sabha elections 2019 have been about many things, from nationalism to political leaders of deriving position out of lineage. Much has been contested for in the elections.
A new addition to the political realm of campaigning and contestation was candidates from the transgender community.
Also Read : Missing ‘Rights’ in the Transgender Persons Bill
The Pink List, a collective of the trans plus queer activists who seek their mandate in the nation state find a balance in terms of taking a hard line stance on those who disregard their community and pertain to a discourse to the line of ideologies. They strive to tackle homophobia but also acknowledge the presence of politicians and parliamentarians who have actively or silently supported the protection of rights and acceptance of their community. It also strives to build “a network of politicians across party lines to make queer issues a political imperative.”They have four distinctions when it comes to a space of change for the social position of their community.
The first being that of ‘trailblazers’, also called the Fab 5, refers to those who’ve contested the 2019 elections. In a space where they would have been elected, marking history as being the first Member of Parliament from the LGBTQIA+ community.
“Some of these include Ashwathi Rajappan from Ernakulum, a Dalit activist who concerned himself with Ambedkerite queer politics and understanding the overlap between one’s -standing as well as giving intersectionality its due.”
Radha from Chennai South strives for the implementation of the NALSA verdict. Jatin Mummy from Mumbai North East, advocates rights for the Kinnar community. Chirpi Bhawani, Aam Aadmi Party’s candidate from Prayagraj roots for the implementation of the Emergency Cow Protection Act and stands against the policies of the previous government such as demonetisation.
The next categories are of ‘changemakers’ and ‘outspoken allies’ referring to those politicians who’ve gone out of their way to support the community. It seeks to applaud politicians such as Shashi Tharoor, who with the introduction of a Private Member’s Bill in Rajya Sabha wished to scrap off Article 377. It also keeps a record of statements made in support of the LGBTQ+ community, with hopes of being a non-exhaustive list.
It also becomes imperative to draw parallels to the situation in neighbouring countries with respect to transgender community. The case here primarily becomes that of the legal recognition, a need that arises with documentation. Under the ICCPR, the UN Human Rights Committee has urged states to “recognise the right of transgender persons to a change of gender by permitting the issuance of new birth certificates”.
“Pakistan’s history with transgender protection took a turn with the Khaki v Rawalpindi case wherein the court passed a judgment regarding the implementation policies that curb discrimination against Hijras protecting their social rights.”
In 2018, the landmark Transgender Persons Protection Act was passed, which brought in a liberal element to the realm of legal recognition. This received a relatively positive reception, with the facet of self recognition of one’s identity, if they choose to identify as transgender.
The medical practices of determination of gender were seen as discriminative. Mehlab Jameel, an activist in Lahore said that this was a result with the support of Senator Farhatullah Babar that they ended up re-writing the Bill. Keeping the Bill in tandem with the Islamic ideology, this was seen as victory for the community. The basic principles regarding social protection were similar to India, but the fact that medical tests were not treated as a pre requisite to legal recognition made the khawaja sira (third gender) easily obtain documentation to participate in the Census.
While these decisions regarding LGBTQ+ and transgender loom large on the second Modi government, the active participation of the transgender community facilitates greater room for the demands and their viability in a political environment.