Pursuant to the parade, reports of an altercation between two groups of marchers raising political slogans during the event surfaced. According to a report in the Free Press Journal, Ambedkarite queers alleged that members of the Humsafar Trust, a part of the MQP involved in the organising of the parade, seized posters of Dr. BR Ambedkar that were being carried by them and asked them to refrain from chanting ‘Jai Bhim’. The slogan of ‘Jai Bhim’ is considered as a greeting by many, especially the Dalit community, and is, moreover, a salutation which displays the deep reverence that the marginalised sections have had for Ambedkar’s contribution to their emancipation. As per one of the marchers, the organisers of the said pride parade of 2024 turned an event that was meant to draw attention to the rights of the queer and trans* community into “just a celebration.”

This brings us to the question again- can pride be apolitical? Can a community which cuts across religious minorities and marginalised castes and classes be asked to “desist from raising political slogans”? Can the discourse of those who face double or more levels of marginalisation, owing to their caste, gender identity, religion, be asked to keep these complex issues away from the pride parade?

Intersectionality and solidarity amidst the struggle against caste and capital – Shripad Sinnakaar

When we spoke to Shripad Sinnakaar and asked their views on intersectionality, pride and politics, they said that they were reminded of a poem they had written in the year 2023. Reciting this one line from the same, Shripad wondered “How many generations does it take for a dream to come true?”

Shripad belongs to a fourth generation Dalit family in Dharavi. Dharavi features as a central figure in their writings and work. Their poem details the myriad unending obstacles faced by individuals from the marginalised genders and castes that deter their struggle for equality and justice. As per Shripad, it is this intersectionality that threads issues together to evoke a perspective unique to the Dalit Trans community.

When asked to share their perspective on the role that Mumbai as a city, which is often claimed to be the city of hopes and dreams, actually play in the life of the marginalised person, they stated “This question itself is a deeply political question. The oft-repeated phrase, Mumbai never sleeps, is profoundly a labour question. What is the caste of the people who are rendered sleepless by the city? It is visibly an empirical phenomenon. One that can be answered by simple observation. Who is outside at nights? At Carter Road, Bandra? Highways at Bandra-Kurla-Complex? It is the sex workers, the couples on bikes – those who don’t have the right to the city exercising their right to the city.”

Shripad Sinnakaar (they/them) is a poet and researcher based in Mumbai whose work centres around caste and gender. They have been the recipient of a research fellowship from Centre for Studies in Gender and Sexuality, Ashoka University. During the fellowship, they continued their research on caste and gender, particularly intersecting literature from transgender studies and anti-caste literature. Dharavi is a place which remains central to their work – they have created a literary initiative called Flamingos in Dharavi. Through their project, they talk of issues related to reservation, caste, climate change, wild life, preservation of environment; they have been in conversation with members of the Rohingya community over extinction of birds, a collection of poems that are a part of their project.

According to Shripad, to speak about the Dharavi Redevelopment Projects enables one to broaden the solidarities and struggles imagined because ecology, corporate powers such as Adani, and climate change remains central and very integral to the question of caste. The struggle against these majoritarian and dominant powers cannot be put into boxes and categorised, they stated. Delving deeper into their hopes, Shripad asserts that their politics is like the river Mithi, which flows through Mumbai, which sutures together caste, marginality, and solidarities is central to them.

To Shripad, individuals cannot be brought down to just one identity, their existence is layered and mired within histories, communities, affinities and solidarities, and to limit them to just one part of their being, especially to do so at the cost of reducing one’s struggle, would be a loss. When asked whether they are losing one’s own perspective or specific history being a cost to broadening horizons and building solidarities, Shripad thoughtfully responds by saying, “It is a question about one’s standpoint. Mine is sub-categorisation.”

Elaborating on the politics of sub-categorisation of caste and the clubbing of separate traditions under the umbrella of Hinduism, Shripad stated “For instance, Dalit Christians and Dalit Muslims fight for recognition of their Scheduled Caste (SC) status. In these cases, there is an overt recognition of religions. However, the traditions practice by the Hijra, Jogti, Yellamma & Tribal communities are different from the Hindu religion. To not recognise their practices is to give in to Brahminical colonisation of their religion— to not recognise their sovereignty (with respect to religion), would be an injustice.”

Emphasising upon understanding history and ensuring that the same is not lost in translation while limiting the fight for caste to courts, Shripad further states that “It is important to recognise different histories around caste which cannot be subsumed under a Hindu fold. Caste, thus, cannot be limited to a fight for a legal structure. Caste, its sub-categorisation can be used as a methodology, a standpoint. I use it in my work, as it has a certain centrality to it in the practices of the Hijras, their religion and so forth. (For the Hijras) they are neglected and (much is) lost in translation.”

Pausing for a moment, Shripad then relates the history that is shared by the caste trans* and queer communities to the history of Mumbai, erstwhile Bombay, and brings our discussion to the same point from where we started. Raising pertinent questions, Shripad asks “Would Thane, Mumbra, Dombivli, Kalyan, all of which are peri-urban locale, be included in the definition of the city that never sleeps? Do we include Badlapur when we talk of Mumbai? What about Govandi, Mankhurd or Dharavi? Govandi has the worst slums, even worse than Dharavi. So does Bandra, in fact, the railway station is a slum too. Will these places be included in the (idea of Mumbai) avenues of changes and hope and dreams? These are the kind of questions I am interested in thinking about.”

To Shripad, Mumbai exists of slums as much as of Highrise buildings, just as a Dalit queer and trans* individual is as much their caste identity as their gender identity and sexual orientation. Shripad states “None of these tall buildings can exist without slums. None of them would exist without the labour of minorities and lowered castes. It’s the history of the making of slums & chawls: Mumbai needed labourers but not a good living condition. Which is why the chawls came up. The slums, the chawls, they are sites where the unwanted live.”

Shripad concludes by sharing their thoughts about the year 2023. To them, the year gone by had been the year where the “crisis” (of the pandemic) had ended, and suddenly people were confronted with “the ordinary of life”. Shripad pointed out that, “During the lockdown, we were all existing within multiple kind of constraints, and restrictions. However, once the lockdowns ended, we were faced with multiple crises, including that of having to carry on. Everyone was encountered with now what? However, there was no looking back. But in these times, I think the normative ideas of friendship and family were intimately shaken – a dispossession of the normative ways of relations we structure our lives with.”

Institutional discrimination in the classrooms and workspace continue, no redressal mechanisms available?

The NALSA judgment (National Legal Services Authority v. Union of India) came out about a decade ago, forming a pivotal moment and milestone in the fight for rights of the transgender community. The judgement recognised transgender people as an entity belonging to “third gender” and directed the government to take measures to protect the rights of transgender people in India. However, many pitfalls and pervasive precarity mar the everyday life of transgender individuals with discrimination, violence, and brutality, especially at the hands of the state, continuing to remain strife and rife.

Vaivab Das (they/them) spoke to the CJP team about what came after the NALSA Act and how the executive, by bringing in the controversial Transgender Persons (Protection of Rights) Act 2019, shed all its responsibility towards the community and rather snatched the protections guaranteed by the courts through the NALSA judgment. It is essential to highlight here that the union government had faced resistance by many against the said Act and had witnessed protests by the members of the community requiring a transgender people to “compulsorily” go through medical procedures to prove their trans-ness. Arguments were also raised regarding the Trans Act’s failure to implement the guidelines laid down by the NALSA judgement, which had focussed on autonomy and self-identification, and added invasive checks and procedures to be followed while granting certificates to transgender people.

Speaking on this, Das said, “The Trans Act 2019 didn’t take much space in the public imagination. That’s where we disconnect. The Trans Act took an undemocratic approach, where protection was granted on the basis of a certain authenticity of trans-ness to rescue trans people. However, the construction of authentic trans-ness is exclusionary. It is sad that there are newer ways of gatekeeping within marginalised communities. A movement is a movement with ground support, if it is without ground support, then it is only a moment.”

Despite their being a NALSA and a special act to protect the rights of the transgender community, the on-ground truth, as shared by Jane Kaushik (she/her) in her conversation with CJP remains far from good, with institutional discrimination continuing abound, especially at workplaces. Jane, who is an activist and teacher by profession, was removed from two private schools, one in Gujarat and the other in Uttar Pradesh, reportedly on account of her gender identity. The case is currently being heard in the Supreme Court at the moment by a bench of Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Misra. During the last hearing of the case, CJI Chandrachud had expressed his concerns over the treatment being meted out to Jane for being a transgender person. During the hearing, the counsel representing Jane in the court had highlighted the issue of social stigma that the teacher had been facing in the women’s hostel and how the school environment has been unwelcoming of her sexual identity. Her counsel had in clear words argued that “They cannot accept the fact that she is a trans* woman,” as per a report in LiveLaw.

Speaking to CJP, Jane confirmed that facing discrimination has become a norm for the transgender community, and these two incidents that went viral in 2023 were not no exception but a continuation of the discrimination that she has been facing her entire life and in her career. “They either outrightly say ‘No, we will not take you’, or they ask me to join but to hide my gender identity. They would ask me to work as a female and hide my identity.”

To explain her situation, Jane asked us to imagine a situation where we were forced to lie or hide about their gender identity. Jane asked, “How would you feel if you as a woman are forced, and even encouraged, to pretend and tell the world that you are a man? As a matter of course, this has been a cause of great anguish and mental distress for me.”

Elaborating upon the vicious form of discrimination she faced from students as a transgender person and the derogatory slurs that were thrown her way, Jane provided “I can hide my gender, but I cannot hide my body. The students hurl various kinds of slurs at me, such as ‘Chakka’, ‘Hijra’. They constantly engage in body shaming me.”

She further pointed out that, “There is no mechanism to address this. I believe schools should sensitise people on issues of gender identities.”

On being asked if any action had been taken against any such incident, “Never has any sensitisation or addressal happened for such acts.”

For basic rights and implementation of the NALSA guidelines, we have to fight the government

The issue of the lack of effective mechanisms in place to address the concerns of the transgender community, explained by Jane above, were also shared by Kiran Nayak (he/him), a disabled trans man. Kiran is a social activist from the Southern part of India who works on the matter of health, which is a basic right, being denied to the transgender community, especially those that suffer from disabilities.

While in conversation with Kiran, he stated “After Covid-19, things have gotten way worse, especially for transgender people who suffer from disabilities. There are health issues that medical staff are not equipped or prepared to handle, and that many of us from the community cannot afford. I had lost my job during the pandemic, which made my situation worse. After that, I had a lot of issues finding a house as well. Landlords would not give homes to rent to us because of my gender identity. I was compelled to open up a general store with my wife in a village to make a basic income, however we suffered a complete loss after this. My mental health too was in shambles. I suffer from rheumatoid arthritis and for that I have to spend around 7000-8000 every month for my medical treatments.”

Highlighting the issue of hospital staff needing sensitising regarding the transgender community and their basic needs, Nayak expressed his anguish and states “When I go to the doctor, how do I go and get treatment? It is impossible. There is a strong need for the hospital staff to be sensitised and made aware about gender identities and the need to be sensitive to these.”

Discussing the ineffectiveness of any form of government action, Nayak argues that there has been no implementation of any policies favouring the transgender community by the state. Nayak says “When politicians want your votes, you are welcome. However, you are just used for your vote. Because even though there are many schemes, judgements and policies that have come in the favour of the transgender community, there is implementation. I demand the state government to implement these schemes and policies at the state level. The situation in these states is exceptionally bad.”

The government, as per the transgender community, have not done justice to the guidelines set by the NALSA judgment in terms of providing horizontal reservations as well.

In March of 2023, an application had been filed by Grace Banu, a Dalit trans woman and activist who runs the Trans Rights Now collective, seeking clarification from the Supreme Court regarding the reservation reference made in the NALSA judgement. Banu had petitioned that there was a need for a distinction between horizontal and vertical reservation as while delivering the NALSA judgment, the Supreme Court had directed the Union and the States to treat transgender persons as a socially and educationally backward class and provide them reservation in education and public employment. However, the Court had not provided how the reservation needed to be implemented and had rather stopped short of recognising the particularity and intersectionality of disadvantages that the transgender community faces.

On March 27, 2023, the Supreme Court bench led by CJI Chandrachud had refused to hear the application moved and had subsequently disposed off the matter.

The longstanding demand for horizontal reservation for the transgender community has been raised for decades, even before the NALSA judgement had been delivered, as the same would have allowed community members to seek reservation within each affirmative action category, including Scheduled Caste, Scheduled Tribe, other backward classes, and the unreserved general category.

Under Article 16(4) of the Indian Constitution, Scheduled Castes, Scheduled Tribes, and other backward classes had been deemed as recipients of “social reservations,” a category which thus served to create vertical distinctions. However, on the other hand, reservations benefiting women, individuals with disabilities, freedom fighters, and project-displaced persons were separately considered as “special reservations”, forming horizontal categories that intersected and came under categories with vertical reservations. To provide in brief, special reservations are a part of the existing social reservation categories. This is a formation that understands that marginalisation and social identities are an interlinked and intersectional phenomenon that need a layered understanding to deal with. Thereby, the transgender community seeks to demand horizontal reservation quotas.

Speaking to CJP, Vasundhara* (name changed to protect the identity of the individual) stressed upon the necessity to have horizontal reservation in educational intuitions and public employment, and stated that, “It is an absolute need of the hour to have horizontal reservations. In Karnataka, horizontal reservations have already been implemented for government employees. We need this in educational institutes, public employment. Furthermore, we need horizontal reservation for transgender people in all government schemes for the people of India. Men and women are direct beneficiaries of these schemes, including reservation in education. Why can transgender people not enjoy the same access to equal opportunities?”

Colonial era law done away with, colonial era gaze to marriage stays: The Courts

As with all struggles, there are pitfalls and successes. While referring to the politics of the courts and the colonial gaze that it holds over the queer and the trans* community, one shall begin with the one victory that the community, in the legal fight for rights, was able to secure in the year 2023.

In the past year, the Telangana Eunuchs Act, originally known as the Andhra Pradesh Eunuchs Act, was abolished. The abolition was wholly welcomed by the transgender community, who referred to the draconian legislature as dehumanising to the transgender community.

To provide a brief history, the now struck down law had been introduced in the year 1919 and unlawfully mandated registration for transgender individuals with the authorities and also required community members to disclose details such as their place of residence. The basis for such registration was reportedly due to a “reasonable suspicion” of committing offences, such as abducting boys or engaging in unnatural activities, by the community members. Stripping away all legal protections otherwise available to all citizens of India, the Act provided authorisation for the arrest of transgender persons without the requirement of a warrant, and could be used to subject such arrested individuals to a two-year imprisonment if found dressed in female attire, participating in public entertainment in any public venue, or in the company of a boy under sixteen years of age.

Trans activists and others had challenged the legislation, labelling it an “outdated” legal framework. During the legal battle, social activists had drawn parallels with the now partly struck down Section 377 of the Indian Penal Code, and where the part that constructed the idea of “unnatural offences” was read down, as they questioned the relevance and fairness of such restrictive measures. Trans activist Vyjayanti Vasanta Mogli had challenged this act, along with a batch of petitioners, that had claimed that the law was “unconstitutional and discriminatory.”

The team of Citizens for Justice and Peace spoke to trans activist Shalini* (name changed to protect the identity of the individual) on the issue of the Telangana Eunuch Act. As stated by them, the legislature was an oppressive and colonial stature, a “statute that had to go owing to the dehumanising aspects it contained with regards to the transgender community.” Shalini further stated how the Act mandated for transgender people to be recognised as a ‘Eunuch’ under this act to register themselves with the authorities. Elaborating on this, Shalini highlighted how the name of the legislature itself was extremely derogatory, comparing the usage of the word “Eunuch” for a transgender person to be as dehumanising and deplorable as using the term “female” while referring to a woman. For the transgender community, using the above-mentioned word reduces an individual or community entirely to their genitalia.

As stated by Shalini, the essence of this Act was similar to the British era Criminal Tribes Act which criminalised certain tribal groups, putting them under the lens of scrutiny of the executive merely for existing, and stripped away their dignity. The Act offers impunity to the average person, whereas the transgender individual would be in turn treated like a criminal. It was a law that prevented the transgender community from receiving and practising their constitutional rights. Therefore, just like Section 377, Criminal Tribes Act, the (Telangana) Eunuch Act too had to go, reiterated Shalini. The bench of Justice CV Bhaskar Reddy and the then Chief Justice Ujjal Bhuyan of the Telangana High Court, which ruled down the act, had categorised the law as “an assault on the dignity of transgender people.”

While the aforementioned colonial act was done away with, the colonial gaze of the courts towards the queer and trans* community continued. On October 17, the Supreme Court of India had pronounced its judgment on the issue of extension of marital rights to the queer community. A Constitution bench of five-judges headed by the Chief Justice of India D.Y. Chandrachud had declined to allow recognition to same-sex marriages in India, leaving the issue for the Parliament to decide upon. The bench had also comprised former Justices S.K. Kaul and S. Ravindra Bhat and Justice Hima Kohli and P.S. Narasimha.

Referring to the same, Priya* (name changed to protect the identity of the individual) stated “Although, I knew I cannot place all my hopes on a judgement, it was very disappointing nonetheless. While I do not uncritically subscribe to the idea of marriage, I still feel having similar, and equal, rights to that of cis-gender and heterosexual people would have been a step in the right direction. The fact that these are simple things one has to fight for in India’s biggest courts is a mental setback, and kind of tends to break morale, if one thinks of it.”

Ironically, in the judgment, the Supreme Court bench while refusing equal marital rights had acknowledged the discrimination that the LGBTQIA+ community faced from the state and held that the court does not feel required to get into “judicial law-making” on issue of recognising same-sex marriages as the same fell outside its purview. The court also ruled against granting adoption rights to unmarried same-sex couples. Referring to this, Priya stated that, “It is a dehumanising feeling, you feel that the people don’t see you as human.”

Vaivab Das (they/them), a scholar, also spoke to CJP on the nuances involved in the equal marriage legalisation debate and the ramifications faced by them in everyday life. Referring to the rights of property and capital that come from the legal acceptance of union, something which the heterosexual couples enjoy, Vaivab said that “With respect to the marriage-equality discussion, I think rather an ideological-theoretical divide whether one is against marriage or one if for marriage is immaterial. There are more material concerns, for instance of property. Marriage is essentially about capital. This is missing from the discussion. The divide is actually about experience, not ideology. For instance, there are those who do not or have never had access to property. For many, marriage is not lucrative. Thus, the articulation of marriage is rooted in privilege. There are, of course, transgender people who marry but in ways that fall outside the purview of the same-sex marriage purview. However, of course, I don’t support the way that things are, I don’t support non-recognition. It is discrimination. However, the articulation in the theoretical scaffolding about marriage, because marriage is unequal.”

Bringing into view the politics of the legal battle, the same-sex marriage issue and the exclusions faced by the non-upper-caste and non-upper-class members of the community, Vaivab states, “Questions of caste, class, religion always play out. My point of contention is that lines are always drawn on ideological inclination. But, what position would I have, if I come from a small town? I don’t have an affinity towards a particular ideology, my ideology stems from conversations with people. Hence, I believe, experience is what structures people, not ideology. The same-sex marriage discussion is also problematic in the very phraseology that structures it. ‘Same-sex’ marriage is given to media by a few lawyers. However, it also comes with its own set of exclusions. There are people who are from the LBT and trans* sections who have offers robust feedback on this.”

A political existence of many layers

The reading down of Section 377, the NALSA judgment, and the Trans Act form the basis of the rights we now seem to demand from the courts and the state. The fight for “same-sex” marriage can only be sustained when we recognise the community’s history, especially the contribution made by the transgender community. And these fights cannot be understood in isolation, as these were political resistances.

The discrimination that the community faces for their sexual orientation and/or their gender identity at the hands of society and state cannot be separated from the discrimination that the members face for their caste, creed, religion, class, etc, rather the resistance to such discrimination sits at the intersections of these layered identities, and to separate them, these subaltern identities, will result in erasing of our history.

Related:

MAT relaxes age criteria, makes provision for grace marks for transgender community in public employment, refuses to direct state to grant reservation

9 years since the passing of the NALSA judgment, has the cycle of discrimination and ostracism finally been broken for the transgender community?

Our own hurt us the most: Familial violence in the lives of queer & Trans persons within marriage equality debates

Delhi HC Approached for Separate Public Job Vacancies for Transgender Persons

No proposal for affirmative action in education or employment for transgenders: Govt

Queer partner approaches Kerala HC to demand release of partner’s dead body after the family of the deceased refuse to take responsibility

The post Can pride be apolitical? Queer and trans* voices and politics appeared first on SabrangIndia.

‘Transgender [people] are humans and are citizens of our great country’

– Justice Mridula Bhatkar, Chairperson, MAT

 On November 29, the Maharashtra Administrative Tribunal (MAT) pronounced its judgment on the issue of transgender reservation in government employment and including the option of “third gender” in online application forms. In its judgment, the tribunal observed that it cannot pass any directions to the state directing them to make reservation for transgender persons in public employment and education, but highlighted that the government ought to take more steps towards ensuring inclusion of the transgender community in mainstream society.

It is ‘obligatory’ on States to prepare welfare schemes and invent opportunities for transgender persons in public employment, the MAT said while relaxing the eligibility criteria for three transgender persons in the police department and State administration.

“The State not only has the power, but also it is obligatory on the part of the State to prepare the welfare schemes or to invent different methods and modes to provide the opportunity to transgenders of public employment.” (Para 32)

Justice (Retd) Mridula Bhatkar, Chairperson of MAT and member Medha Gadgil noted in the judgment that mere identification and acknowledgment of the existence of transgender persons in the society was not sufficient inclusion but to facilitate their appointments in Government and Public sector is inclusion in true sense.

In the judgment, MAT further stated “The Legislature with visionary approach has used the umbrella terminology ‘effective participation’ and ‘inclusion’ in Section 8 of The Rights of Persons with Disabilities Act, 2016 and is akin to Article 21 of the Constitution of India enabling the appropriate Government to make various provisions and keep the welfare avenues feasible for the transgenders to live with dignity.” (Para 26)

The judgment of the Tribunal in the said case had been reserved on October 26, 2023.

The petition:

The applicants were three transgender persons, namely Arya Pujari, Vinayak Kashid and Yashwant Bhise, who had approached the MAT seeking directions to the State government for the option of ‘third gender’ in the application. They also sought reservation for trans persons citing the NALSA judgement wherein the SC directed for transpersons to the considered in the Social and Economically Backward Section (SEBC) for reservation. Notably, Pujari and Kashid had applied for the post of police constables whereas Bhise had applied for the post of talathi.

Through the petition, the applicants had highlighted that while the Maharashtra government had recognized transgender applicants subsequent to the enactment of the Transgender Persons (Protection of Rights) Act, 2019, no provisions for reservation for the community in state employment had been formulated by them. They had sought reservation based on the Supreme Court’s verdict in the NALSA case (National Legal Services Authority vs Union of India & Ors) in which the apex court had held that transgender persons should be treated as socially and economically backward and hence given reservation.

It is crucial to highlight that in November 22, an interim order had been passed by MAT directing the state of Maharashtra to provide a third option in the application form. The order was subsequently upheld by the Bombay High Court in December 2022. Additional directions where also issued by the High Court, urging the State to frame appropriate rules under the statutory mandate. Following this, in March 2023, the State had issued a Government Resolution identifying the third gender and providing the “other gender” option for public employment. Therefore, reservation was the only issue left for consideration.

The contentions put forth by both the parties:

During the hearings, it had been highlighted by advocate Kranti LC, counsel for the petitioners that states like Tamil Nadu, Chhattisgarh, Karnataka, Jharkhand and Bihar, have provided the benefit of reservations to the transgender community. The counsel had further informed the tribunal that the state of Karnataka provides 1% horizontal reservation for transgender people and out of the five aforementioned states, four have given reservation for transgenders in SEBC.

It is crucial to note that the main argument put forth by the state while opposing reservation to the transgender community is based on the silence of the law makers on this point in the Transgender Act, 2019. During the hearing, the tribunal noted that it had been vehemently pointed out by the state that since no provision for providing reservation to the community had been specified in the Act, the State Government cannot provide reservation for transgenders. It had been contended that the State Government follows the policy of the Central Government on this issue as it is a Central Legislation and, thus, to provide separate reservation to transgender is just not possible. Chief Presenting Officer for the State Swati Manchekar further highlighted that at present, Maharashtra has 62% vertical reservation and 72% horizontal reservation.

Responding to this, advocate Kranti LC highlighted the State’s contradictory stand on reservations, pointing to how the Maharashtra Government provided reservation for denotified or nomadic tribes despite no such reservation in the Central Government. The counsel also referred to the recent decision of granting reservation to the Maratha community.

Referring to this, MAT observed the State had crossed its vertical reservation cap of 50%.

Observations by the Court:

In its 24-pages long judgments, the most important observation made by the Tribunal is that even nearly nine years after the passing of the landmark NALSA judgement, not a single open transgender person is part of the 5.5 lakhs Government employees in Maharashtra.

“As on today in State of Maharashtra approximately 5.5 lakh Government servants are working on various posts in various Departments. But not a single transgender who has come out of closet has got a job in the Government sector.” (Para 27)

The Tribunal further emphasised its disappointment on the lack of inclusion and representation of the transgender community and stated, “This fact itself speaks in volume. The transgenders are humans, are citizens of our great Country are waiting for their inclusion in the main stream”. (Para 27)

Referring to Article 16 of the Indian Constitution, which prohibits discrimination in public employment on the basis of religion, race, caste, sex, etc., the Tribunal provides “The Transgenders are people in minority. Majority forms the Government, but majority cannot suppress or ignore the rights of marginalized section. The calibre and morality of the Democracy is tested on these yardsticks.” (Para 32)

MAT also drew parallels between the struggle for equal right for women and transgender people, noting that the transgender community is at a position worse than women in our society as they are ridiculed or subjected to misplaced abnormal curiosity.

“The case of transgenders is worse than the women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted. Therefore, mere acknowledgement of their separate identity is not enough to provide them opportunity in public employment.” (Para 32)

Referring to the argument of the state for not providing more reservation, the Tribunal highlights that the Transgenders Act had opened various methods of ensuring inclusion of the transgender community, “The stand taken by the Respondent-State that they cannot provide reservation more than 62%, though is consistent with the law about 50% cap laid down by the Hon’ble Supreme Court in the case of Indra Sawhney (supra), the Transgender Act itself has opened the other doors of inclusion and participation of transgenders in the public employment.” (Para 32)

The Tribunal further stressed upon the obligation of the state to prepare welfare schemes for providing employment opportunity to the transgender community and added that “Combine reading of Sections 3 & 8 of the Transgender Act makes it clear that the State not only has the power, but also it is obligatory on the part of the State to prepare the welfare schemes or to invent different methods and modes to provide the opportunity to transgenders of public employment.” (Para 32)

Calling public employment to be a “handicapped race for the transgender persons” the MAT panel shed light upon the paralyzed of the transgender community owing to the negative approach of society.

Particularly, MAT also rejected the State’s “misplaced” apprehension that if reservation is provided to transgender persons in the public sector, it will lead to an increase the tendency of people “falsely” coming out of closet as transgenders and opting for a surgery. In its judgment, the Tribunal provided “This fear is absolutely misplaced. Getting in Government job depends on number of factors like education, fitness, vacancies etc.” (Para 33)

Lastly, the MAT emphasised upon the need for concrete affirmative action and rejected the argument put forth by the State that was consistent with the Transgender Act as it allowed the applicants to compete as a transgender person in public employment. “Only by acknowledging the third gender, the Government has not made adequate opportunity available to the transgenders. More steps are required to be taken by the Respondent-State for effective participation and meaningful inclusion of the transgenders in the mainstream.” (Para 36)

The Tribunal noted Section 8 of the Transgender Act required the Government to take measures for the inclusion of transgender persons in society as it is bound by the 2019 Act.

MAT gave illustrations of policy decisions expected by the State to positively discriminate transgenders in public employment. The tribunal recommended

• a separate lower benchmark for transgenders as a class in Preliminary and Main Examination
• To give grace marks to reach the cut-off marks and/or
• To give more chances to appear for the examination by giving age relaxation. and/or
• To offer concession in educational qualification and experience.

Decision of the Tribunal:

Through the judgment, the MAT panel held that it could not direct the State to grant reservation for transgender persons in employment, but decided to relax the criteria for the applicants in the following manner:

• Applicants are to be given the necessary grace marks to reach the cut-off marks or applicants who have reached 50% to be considered for the concerned posts.
• Age relaxation for applicant who has scored minimum 45% marks.

The complete judgment can be read here:

Related:

Transgender day of remembrance: Solidarity statement

Transgender Woman is a “Bride” under Hindu Marriage Act: 2019 Judgement, Madras HC

9 years since the passing of the NALSA judgment, has the cycle of discrimination and ostracism finally been broken for the transgender community?

No proposal for affirmative action in education or employment for transgenders: Govt

Delhi HC Approached for Separate Public Job Vacancies for Transgender Persons

M’tra Govt moves HC against MAT Order directing inclusion of Transgenders in police recruitment

Supreme Court directs Centre to frame policy on jobs for transgender persons

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Delhi High Court on April 21, 2022 directed the Delhi government to update the Bench on the various steps taken to ensure separate toilets for transgender people and the details therein, reported LiveLaw.

According to the report, a Division Bench comprising of acting Chief Justice Vipin Sanghi and Justice Navin Chawla demanded a status report from the government regarding: the steps taken by the government to form the separate toilets, the number of toilets constructed so far and the inclusion of the toilets in new constructions of public spaces.

“If not, we direct the GNCTD to look into this aspect without any delay,” said the Bench, adding, “At least wherever you are making new development and new buildings, there you should be providing.”

According to the government, the social welfare department in February 2021 moved to have separate toilet facilities for transgenders. Until then, it directed that existing toilets meant for persons with disabilities be designated for transgender people.

However, petitioner and law student Jasmine Kaur Chhabra, seeking the construction of separate toilets for transgenders, said that the government asked for over two years to build the facilities. In her plea, she cited Article 14 and 21 and argued that every human being, irrespective of gender, has some basic human rights, including the right to have a separate public toilet.

“It is not fundamentally or morally judicious/correct to ask any specific gender to use a public toilet which is made for another gender,” argued the petition, as per an Indian Express report.

Still, the Bench asked the petitioner to give the department enough time to build the amenities.

Chhabra further cited the Transgender Persons (Protection of Rights) Act, 2019 criminalises discrimination against a transgender person in education, employment, healthcare, movement and right to reside. She argued that the lack of separate toilets is a serious and concerning issue which the transgender community faces in their daily life. Despite several judgments and orders passed by the Supreme Court and other high courts, no action has been taken in this regard.

Chhabra also argued that the Swachh Bharat Mission (Urban) Revised Guidelines from 2017 recommend the creation of separate toilet seats for transgender people. Using a toilet meant for binary genders violates the third gender’s Right to Privacy, she argued in her plea. Accordingly, the court demanded updates from the government.

The matter is scheduled for further hearing on July 29.

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The NRC in Assam left about 2,000 transgender people from its final list compelling them to approach the apex court. Assam’s first transgender judge and the petitioner in this case Swati Bidhan Baruah said that the objection applications available during the NRC process did not contain a check box of “others” while marking sex of an individuals. This forced the members of the community to accept mark male or female as their sex. The exclusion, has thus, already begun.

Transgender is an umbrella term that encompasses a range of people located at different points on the sex and gender spectrum. The community includes but is not limited to transgenders, trans-sexuals, intersex, hijra, gender queer, gender non-confirming, non-binary people and many more.

But in a country where there is limited understanding of the difference between sex and gender, and where the word gender is often used instead of sex because of the taboo associated with the word sex which is in turn reduced to refer to only the sexual act, the community has paid a heavy price. Recently, a downright regressive law was passed purportedly to empower Transgender persons, but the law itself virtually took away all agency and right to identify from the community. It essentially painted an extremely diverse community with the same brush and largely equated the transgender identity with the intersex identity, which is a very narrow vision.

Concerns of the community

The documents required to prove one’s citizenship, whether it is for the National Register of Citizens (NRC) in Assam, or the propose National Population Register (NPR), require individuals to have agency over their functioning Indian society, a privilege that has not been accorded to many groups.

What about those who will not be able to access their documents at all? What if they have been disowned by their families? What if they have a different name from what was on their birth certificate? What if their sexual identity is different from what is marked on their school leaving certificate? What if they do not know who their parents are because they were abandoned at birth?

The transgender community consists of people living new identities, away from their families. Queer rights activist Rituparna Borah termed the new law to be fascist and against the interests of the community. “Many trans people do not have documents in the names they have chosen for themselves. How will they prove that ‘I am the same person’? Many LGBTQ children are thrown out of the house because of their identity. How will they prove their lineage?” Borah said. “We challenge biological families and we choose our own families. Why are you pushing us towards our biological families who are oppressive towards women and the queer community,” she questioned.

Many transgender people do not have ties with the families they were born into, many probably do not know the whereabouts of their families to procure such documents. This entire process is in itself a tedious one and could lead to more trauma than what this community already faces in the society.

On January 3, the queer community came out to protests against CAA and NRC on the occasion of birth anniversary of 19th century social reformer, Savitribai Phule. Protests took place in various cities, Mumbai, Kolkata, Delhi, Ranchi, Bangalore and Ahmedabad being few of them.

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Aswathi Rajappan

“No political party would accept my candidature, hence I confidently walked to the district collector, the Election Commission’s Returning Officer, to file as an independent candidate,” said Jaysawal. “Unfortunately I could not submit my name as a transgender, but as a male”, rues  Raju Mataji, as she is popularly called. This is not the only incident.

Discrimination persists 

In Kerala Ernakulam town, Aswathi Rajappan too faced insults when police ring- fenced Rajappan,  a 25 -year old engineering graduate along with a friend and laughed when they were told that Aswathi was an independent candidate in the ongoing general elections. There are about four candidates contesting elections across castes and religions according to reports in “The Hindustan Times”.

Though transgender community is coming forward, the social discrimination persists in many parts of the country. Social acceptance has not improved appreciably despite verdict of Supreme Court in Nalsa vs Union of India case upholding their rights.

Jaysawal Naresh Babulal

Braving all odds

In spite of many hurdles, transgender people are entering mainstream politics. Rajappan was stirred to join politics because of high rates of crime against transgender people and a commitment to anti- caste principles. Rajappan also desires to work for disabled, tribespeople besides working for intersex and transgender people and Dalits. The Aam Admi Party fielded a candidate from the Lok Sabha constituency of Prayagraj.

Though mainstream parties boast of equality and justice, they are yet to implement reservation for women in elections. Some parties like the Biju Janata Dal and Tranamool Congress have tried to show some progressive intent in fielding women. But, by and large, the transgender community face stigma and patriarchy from political parties as well as society.

The elections are being held amidst stark discrimination, inequality, hatred and lot of animosity. To large extent they are neither free nor fair. There is still a lot to be done to eradicate discrimination and bias

Courtesy: Counter View

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Both the TG Bill and the trafficking Bill reflect the moral crusade of the current Bharatiya Janata Party (BJP) government. The former goes on to say that those who have not had gone through Sex Reassignment Surgery (SRS) can only identify as transgender, and not as male or female, and the identification as transgender depends on the scrutiny and certification by a District Screening Committee; those seeking to identify as male or female need to have had an SRS. In the case of sex work, the latter denies sex work from being considered work. As Sandhya Rao and Cath Sluggett write, laws like these snatch away the rights of sex workers by “reiterating the deep rooted belief that human rights exist only when one lives in conditions of socially accepted morality”.

The SRS that the TG Bill talks about is a risky and an expensive medical procedure, one should note. Thanks to the public health system in place in the country, even the willful cannot afford to go through the procedure. The Trafficking Bill not only equates sex work to trafficking, but also talks about sexual trafficking of only women.

Thus, the Bills that are supposedly in the interest of the oppressed communities that they address in them, set new moral definitions and standards for those communities. Most of the transgender persons in the country have to beg and do sex work for livelihood. The trafficking Bill adds on to the existing laws that are used against the community. The transgender community across the country is coming together to tell the government how far its policies are from the reality. As Bittu K, an activist notes, the police, judiciary and even hospitals are the sites of verbal, physical and emotional harassment for the community.

As Coalition for an Inclusive Approach on the Trafficking Bill (CIATB) remarks, the Bill does not adopt measures to encourage victims to approach law enforcement when violated. The Bill is focused solely on a surveillance mechanism that could be misused to target adults whose work is deemed immoral by the State.

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Ministry of Women and Child Development (MWCD) minister had introduced the trafficking Bill in Lok Sabha in May 2016, arguing that there was a need of a comprehensive law to address all the aspects of trafficking. However as Tripti Tandon, a lawyer from Lawyer’s Collective noted, “A “comprehensive law” was expected to harmonise different approaches and integrate existing laws into one. The Anti-Trafficking Bill does not do that. All it does is add yet another legislation to the already fragmented landscape of laws on human trafficking, further complicating the legal framework and its enforcement.”

Section 370 and 370 A of Indian Penal Code (IPC) define trafficking, and prohibit all forms of trafficking. It also expands the purview of what counts as exploitation, and says, “Any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude.” According this Section, Trafficking for any purpose – whether begging, domestic work, farm or factory work – is part of section 370, IPC, which lays down a minimum punishment of seven years of imprisonment, which may extend to 10 years and fine.

The current Bill however, creates a new category of “aggravated forms of trafficking”, which carrries a minimum sentence of 10 years, which may extend to life imprisonment. Some of the aggravated forms of trafficking introduced in the Bill are “trafficking for the purposes of forced labour, begging, marriage and child-bearing.” So what the bill does is, it just increases the punishment, and shows no interest in dealing with the causes of and existing powerful networks of traffickers.

As CIATB argued, the aspiration to move and access better living conditions, poverty, lack of equal opportunity and skewed development policies force persons to move in an unsafe manner, and accept work in a criminalised environment. For instance, in sex work or as undocumented workers abroad. The Bill ignores the problems associated with unequal growth, skewed development and inequity, including – aspirations to migrate for better livelihood.

In case of sex work, the Bill talks about sexual trafficking of women, and also proposes a rescue and rehabilitate model of measure to deal with such trafficking. “Women” in the Bill is a heteronormative term. Since, as mentioned earlier, the TG Bill refuses to consider transgender person as a man or a woman, one wonders what the Trafficking Bill has got to say about the exploitation of transgender Persons. The answer to this is, it criminalises them. Following is a case from Karnataka which shows the dire need of a law that does not paint the transgender community as a criminal one, but the one that ensures that their constitutional rights aren’t harmed.

“Operation Anandi”
TV9, a Kannada TV channel, had aired a show called ‘Operation Anandi’ on the September 25, 2016 from 10 am to 4 pm. It revolved around a 18-year-old boy named Rajesh who was abducted by Mangalmukhis (a transgender community from Karnataka), was and forcibly castrated, and hence turned into a Mangalmukhi against his wish. The show carried visuals of all the accused, captured on a ‘secret camera’ by the TV9 reporters along with the recreation of the castration ceremony. What followed this show was what the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 has in store for the community.

The channel called this show a ‘sting operation’, and a story more dangerous than that of the underworld of the city. Underworld refers to illegality and crime in the city. Gangs, sex workers (considered to be illegal), human trafficking, smuggling, robbery, kidnappers, beggars, etc. constitute this world, hidden under the world of judiciary, police, law and the state. Hence, the “underworld”— a world of illegality and lawlessness — exists as a parallel to the legal and lawful world. ‘Operation Anandi’ is a story of Hijras, their rituals, practices and way of life. By calling it a story more dangerous than that of the underworld, the show portrayed transgenders as not only belonging to the criminal class, but as the organised criminals.

There has always been a never-fulfilled curiosity regarding the functioning of the underworld. ‘Operation Anandi’, the anchor announces, is one of such missions that TV9 undertook to expose an “underworld” which was “not rowdism or international smuggling, but something straight from narka (hell)”. This “underworld”, the anchor proceeds to explain, is special and different as people getting into this world never come back because it is “disgusting and inhuman”. While the anchor calls this “sting operation”  a promise to expose this “underworld”, he asks the audience not to judge the entire community, as there are both good and bad people in the community. Such a plea is mere tokenism because the transgender community, for the anchor, the director, and the channel, is an “underworld” nonetheless, although with both good and bad crime.

The transgender persons who were in the recorded video were all arrested and tortured and then released. These arrests were protested widely across the state, however, such arrests of transgender persons is an everyday affair. The trafficking Bill in question here, if passed in Rajya Sabha, would allow such arrests of transgender persons for aggravated begging and sex work, and further would make them vulnerable to the violence. Can such a law be expected from a government which is bound to an ideology that holds morality over constitutional rights? 

First published in Newsclick.
 

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