In the Vishaka judgment, sexual harassment at workplace was recognized as a violation of human rights and guidelines were given to the state in 1997, however only 10 years later did the government come up with the new legislation (POSH). In the KS Puttaswamy judgement also, the right to privacy was laid as a fundamental right in 2017. However, the notified DPDP Bill doesn’t conform with the principles laid down in the judgment nor has it still come into effect.

This lack of legislative enthusiasm is the problem that exists. The judiciary can only go as far as to recognise the rights, the implementation and societal acceptance of those rights is in the hands of the legislature and the executive, but they don’t seem to care.

This piece delves into this very gap. This piece aims to point out the gap that exists between the judiciary and the implementation by the legislature, particularly with respect to transgender rights.

Reservations- a judicially yes, a legislative no?

The NALSA judgement directed the state to extend the reservation benefits to the transgender community as well, however these instructions have not been consistently implemented. The judgement directed the Centre and the State governments to provide trans people “all kinds of reservation” in admissions to educational institutions and in employment. The Transgender Persons (Protection Rights) Act, 2019 does not include a provision for reservations for Transgenders.

In the case of National Legal Services Authority of India vs Union of India, Miscellaneous Application No. 396/2023 in W.P.(C) No. 400/2012, the applicant pointed out that in National Legal Services Authority vs Union of India, 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 did not state how the reservation should be implemented. Therefore, the applicant stated that many states are yet to implement such reservations.

The Supreme Court refused to entertain an application which sought a clarification that the reservation meant for transgender persons as per the 2014 judgment in the NALSA case is horizontal reservation. The bench led by CJI DY Chandrachud expressed disinclination to entertain the application in a disposed of matter. The bench however gave liberty to the applicant to avail other remedies in law (such as filing a separate substantive petition) for the reliefs sought.

In yet another case, Mx Kamlesh & Ors. v. Niten Chandra & Ors., Contempt Petition (Civil) No. 952 of 2023 in Writ Petition (Civil) No. 400 of 2021, the centre has unequivocally stated that transgender persons can avail SC/ST/OBC/EWS reservation and that no separate quota can be made for them.

These cases show the judiciary’s stand, which is horizontal reservations for the transgender community and also reflect that the judiciary has passed on the baton to the legislature. The legislature however is clear on its stand on reservations. So where does one go from here?

When we look at High courts of the country, the situation is sadly similar.

After the case of Sangama v. State of Karnataka, Karnataka government implemented limited horizontal reservations for transgender individuals in government jobs by amending the Karnataka Civil services (General Recruitment) (Amendment) Rules, 2021. However, this initiative fell short, as these reservations only apply to specific categories of positions (Groups A, B, C, and D) and do not extend to other sectors like private companies or educational institutions. Additionally, these amendments did not address other barriers faced by transgender people, such as high exam fees or limitations on the number of attempts allowed.

In the case of The President v The District Collector, 2023 LiveLaw (Mad) 240, the Madras High Court directed the state government to extend reservations to the transgender community in local body elections. The court held as follows:

“It is also important to hear the voices of this community…In order for this, the reservation for Transgenders must extend to forums of law making institutions. It is in these law making forums, where Transgender persons can express their views and discuss their rights. More so, Transgender persons have a Right to Reservation, owing to the fact that “they are socially Backward Class,”

However, no steps were taken by the Madras government to ensure that the transgender community got reservations in the local body elections. At this juncture, it is also pertinent to note that there is not even one MLA or MP who is from the transgender community, so essentially there is no representation of the community in the legislature or the judiciary.

In the case of in the S. Tamilselvi v. Sect to Government 2022 LiveLaw (Mad) 430, the court directed that the transgender student has to be availed with special reservation in the cut-off for admission in an educational institution.

Now, in June, 2024 the Madras High court in the case of Rakshika Raj v State of Tamil Nadu and Others, 2024 LiveLaw (Mad) 228, has issued another judgement which quashed the government order giving reservation to transgender persons as a most backward class community. Justice GK Ilanthraiyan noted that the state had failed to implement the judgment of the Supreme Court in the NALSA case properly. The court noted that by bringing transgender persons into the Most Backward Class community, the state was treating gender as a caste which was against the judgment of the Supreme Court. The court added that only horizontal reservation could be granted to the community for complying with the order of the Apex Court. The court has granted the government 12 weeks for implementing horizontal reservations of transgender persons.

In the case of Mrinal Barik -Versus- The State of West Bengal & Ors., 2024 LiveLaw (Cal) 145, the Calcutta High Court has directed the West Bengal government to ensure 1% reservation for all transgender persons in public employment in the State, in accordance with the Supreme Court’s NALSA guidelines.

A single bench of Justice Rajasekhar Mantha held:

“This Court, however, notes that in terms of paragraph 135 (3) in the National Legal Service Authority Vs. Union of India & Ors. (2014) reservation has not yet been made in the State for transgender persons. In those circumstances, this Court directs the Chief Secretary of the Government of West Bengal to ensure 1% reservation for the category of persons mentioned in the NALSA case in all public employment in the State.”

In January 2022, the Andhra Pradesh High Court had directed the state government to follow the guidelines laid down in the NALSA judgement and gave the state three months of time for the same. We are in the year 2024 now, and Andhra Pradesh still does not have horizontal reservations of the transgender community.

As now (June 20204), Karnataka is the only state that has provisions for 1% horizontal reservations, which too has its own shortcomings.

The gap between the legislature and the executive

The legislature does not seem to care about the judiciary and the executive does not seem to care about the legislature.

Kerala was the first state in India to launch the State Policy for Transgenders in 2015. However, the police has time and again been accused of harassment of transgender people. Two transgender people were, walking on the street and were jumped by cops. In another instance, 15 transgender people were beaten up and pushed by the Kerala Police.

In Tamil Nadu, the legislature took a progressive step by amending the Tamil Nadu Subordinate Police Officers’ Conduct Rules in response to a directive issued from the Madras High Court in the case of Mrs S. Sushma & Ors. v. The Director-General of Police & Ors. This amendment, known as Rule 24-C, explicitly prohibits police officers from harassing individuals belonging to the LGBTQIA+ community and those working for their welfare. The amendment was a response to widespread reports of police misconduct and was intended to create a safer and more inclusive environment for LGBTQIA+ individuals.

The Madras High Court, in the landmark case of Mrs. S. Sushma & Ors. v. The Director-General of Police & Ors., provided comprehensive guidelines for the police, judiciary, and other public servants to ensure non-discrimination and respect for the LGBTQIA+ community. The court’s directives were clear and aimed at sensitizing all levels of government to the needs and rights of LGBTQIA+ individuals. A detailed analysis of the case can be read at Sabrang.

Despite the clear legislative mandate and judicial directives, the executive branch has shown a troubling pattern of non-compliance. Reports of continued harassment and discrimination by police officers indicate that the amendment to the conduct rules is not being enforced effectively. This disregard for legislative mandates is not just a failure of individual officers but points to a systemic issue within the executive branch.

One egregious example of this non-compliance is the incident involving three transgender women who faced harassment and invasive medical examinations by police officers while attempting to visit the Sabarimala temple. This incident occurred despite the clear prohibition of such actions under the amended conduct rules. The police officers involved blatantly disregarded the legislative mandate, demonstrating a lack of respect for the rule of law and the rights of the LGBTQIA+ community.

Unfulfilled promises and nowhere to go

The Indian legal landscape regarding transgender rights paints a concerning picture. The judiciary, through landmark judgments like NALSA, has established a progressive framework. However, this progress is tragically stalled by the sluggishness of the legislature and the ineffectiveness of executive implementation. This discord between the three pillars of government creates a frustrating labyrinth for the transgender community seeking to have their rights recognized and protected.

The NALSA judgment’s mandate for reservations remains largely unfulfilled. States like Kerala, despite boasting progressive policies, fail to address the rampant police harassment faced by the transgender community. The recent Madras High Court judgment quashing the transgender reservation under MBC category highlights the lack of clear legislative direction. This inconsistency creates confusion and leaves the transgender community in a precarious position, unsure of where to turn for recourse.

The current situation necessitates a multi-pronged approach. The judiciary needs to remain vigilant, issuing clear directives and holding the legislature and executive accountable. The legislature must translate judicial pronouncements into concrete and enforceable laws. These laws should not only address reservations but also encompass wider social inclusion initiatives like anti-discrimination measures and sensitization programs.

A call for harmony

The discord between the legislature, judiciary, and executive creates a significant roadblock for achieving true equality for the transgender community. Bridging this gap requires a concerted effort from all stakeholders. Ultimately, true progress will be achieved only when the three pillars of government function in harmony, working towards the shared goal of an inclusive and equitable society for all.

Related:

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

Madras HC issues guidelines for sensitisation of stakeholders in LGBTQIA+ matters

Telangana: Transgender individual brutally lynched by mob in Nizamabad

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

The post Transgender rights in India: stalled progress and a frustrated community appeared first on SabrangIndia.

The police soon filed a complaint by registering a murder case against the five people who are suspected to be party to the attack. The police also sought to clarify that Raju was not involved in child kidnapping and that the recent kidnappings in the area were isolated incidents with no connections to organised gangs. Furthermore, the authorities confirmed that the children, earlier missing, were now reunited with their families. The Commissioner of Police of Nizamabad also made a public appeal and urged residents to not take the law into their own hands and stressed the need for people to maintain calm and patience in such times.

As per a report in Behanbox, data from the Trans Murder Monitoring (TMM) reveals that India documented 102 registered murders of transgender people between 2008 and 2021. Additionally, the National Crime Records Bureau for the year 2021 also reports that only 236 cases involving crimes against transgender persons have been officially recorded in India. The article points that these numbers are not indicative of actual figures due to the lack of complaints filed in these cases. It has been observed that trans people are extremely vulnerable to violence, in public and in private. A case from Telangana from last year when a wife hired contract killers and paid them to murder her estranged transgender spouse, is just one such example.

Related:

Transgender day of remembrance: Solidarity statement

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

The post Telangana: Transgender individual brutally lynched by mob in Nizamabad appeared first on SabrangIndia.

Calling on all people for a wider and more sustained movement for change, the Forum calls for a commitment to building a social and political system, where all persons, regardless of their gender and sexuality, are entitled to safety, rights, dignity and equity, and don’t have to lead ‘second-class lives’ or succumb to discrimination and ‘death’ by gendered hate, humiliation and violence.

As is known, TDoR is observed annually in the month of November, to honour the memory of transgender persons whose lives are taken away by violence – institutional, systemic/structural, or familial. It is important to acknowledge the presence of these different kinds of violence inflicted on trans persons, since they highlight the existence of it in both direct/overt and invisible forms.

The Transgender Day of Remembrance (TDoR) began initially in 1999, as a vigil organized by Gwendolyn Ann Smith, a transgender woman and activist, to honour the memory of Rita Hester, an African-American transgender woman who was brutally murdered in November 1998. Denied dignity in life and ‘death’, Rita’s killing led to some of her loved ones to mark the occasion to respectfully remember her. Since then, TDoR has been a day to remind all of us globally that trans lives can’t be erased in reality and in memory.

Crucially, it needs to be mentioned that the systemic and structural kinds of violence are often invisibilised – be it through underreporting of trans-specific violence, to the inequality in socio-legal structures (such as delay and denial of issuing of necessary documents documenting the transgender identity of the person) leading to exclusion of trans persons from basic rights such as the right to food, housing, social security, healthcare and equality of access to justice. As one report shows through case studies on transgender rights across the globe, structural inequalities lead to poverty, marginalisation, and “may also prevent trans people from accessing healthcare services”. This lack of access to basic rights exemplifies a form of structural violence.

Institutional violence occurs and is driven by prejudice, bias against and ridicule of trans persons who come to healthcare centres to seek healthcare or gender-affirmative care. Lack of sensitization of healthcare professionals and officials directly leads to a lack of access for trans persons who may want to access public spaces such as healthcare centres, police stations (for filing complaints/reporting crimes) etc. In educational institutes such as schools and colleges and places of employment, shaming, bullying and other forms of mental and emotional abuse adversely impact trans persons who are unable to find a way out of this institutional violence where they also have to go to access and avail their basic rights.

Natal family violence is one of the leading causes of ‘death’ of transgender persons. In a heteronormative society, to grow up as a person non-conforming of the binary genders is a harrowing experience for any child. While adulthood (18 years) enables a certain level of freedom to the trans persons, being a minor mandates them to have to continue living with their natal family which may not be accepting and often be actively violent towards their trans children. Transness is considered synonymous with violent forms of ‘mental illness’ in most cases, which is a dangerously misinformed stereotype held by many in our country. Such stereotypes and prejudices lead to trans children (at times even trans adults) being subjected to “corrective” therapies and measures which often include rape to “correct” the sexuality of trans children. Intimate partner violence in relationships where trans persons are involved is also one of the main causes of direct violence faced by transpersons.

The violence is intrinsic to the family as a structure which is in place to maintain caste purity and acts as a mechanism of patriarchal control. But the family (in its traditional, heteronormative, monogamous, and reproductive form) is also the only form of relation that the state recognizes for a person even when this person faces violence from it, which means that they still get to make decisions for them (where they live, their partners, medical decisions etc.) and so on. Additionally, in a context in which many fundamental rights are defined in relation to familial relations, or imply these, and families are understood as exclusive of the kind of relationships that we establish among ourselves, it means that trans people (and kinship/care networks) by default do not get access to availing their rights.

These instances are evidence of the violence against trans persons that are not isolated instances, but a larger pervasive phenomenon symptomatic of the kind of society we live in – transphobic, patriarchal, prejudiced and violative of basic human rights, at large. These are also embedded in the state and other institutions, in the family structure and caste system in India. Given these intersections and their nexus and what they lead to, there are many demands raised and fought for by trans persons in India.

TDoR is thus also observed as a day to reiterate the demands of the transgender community. In India, these demands have been long-sought and actively advocated for by trans movements, activists, lawyers and various individuals.

The AIFF, while extending this solidarity with the transgender community in the following reflections has demanded: 

1. The Transgender Persons (Protection of Rights) Act was passed by the Indian Parliament inAugust 2019 with insufficient consultation with transgender persons and groups. Multiple protests highlighted some key problems with the draft Bill, but except a few, many necessary changes were ignored. The Act remains in contradiction with the principles articulated under the NALSA judgement (April, 2014), in that it puts in place a system which is ambiguous on the issue of self-determination.While some of the provisions of the Act can prove to be enabling, they are lacking in effective  implementation. It has been four years since the passage of the Act, yet the mandate of Trans Act 2019 and Rules, 2020 has not been followed through effectively across many states in the context of anti-discrimination protection, education, healthcare, livelihoods, raising awareness and sensitization amongst various sections of society and state etc. 

2. The Trans Act 2019 mandates competent authorities to ensure access to medical and healthservices for Transgender community, which includes gender-affirming services. However, the lack of affordable gender-affirming services coupled with hostility and bias, renders most medical setups inaccessible to trans persons.

3. Excessive delays in the issuance of Transgender ID Cards, along with a lack of awareness and sensitivity in officials towards trans persons, often accompanied by prejudice, is resulting in delays in making essential documents for trans persons which are needed to avail basic services and access basic rights, including the right to education and the right to work.

4. The demand for affirmative action in the form of reservation for trans persons is an extension of the fundamental right to education, right to work and right to representation. These demands are for reservation in the spheres of education, employment and politics. This underscores the importance of Horizontal Reservations for Transgender persons owing to the double marginality faced by transgender persons from oppressed caste and social locations. Vertical reservations (as accorded in the Constitutional categories of SC, ST and OBC), if replicated for trans persons, shall require them to choose between their caste or gender identity and are hence unfair.

5. The demand for an effective, functional and inclusive “Transgender Welfare Board” inall states, with adequate budgets, to be constituted (as mandated by the Trans Act 2019) to act as an avenue for bringing up of aforementioned issues.

6. Marking the Transgender Day of Remembrance (TDoR) officially and taking effective,urgent steps to end all forms of discrimination and violence against trans persons. Stringent legal action and conviction in all cases of killings and violence against transpersons.

There are many ongoing regional struggles to pursue the above demands – in states like Maharashtra, Tamil Nadu, Kerala, Telangana, Assam, Manipur, Karnataka, West Bengal, Delhi etc. The AIFF also extends its  solidarity to the ‘Trutiya Panthi Hakka Adhikar Sangharsh Samiti’  in Maharashtra, ‘Trans Rights Now Collective’ and trans movements in Tamil Nadu and other states for their sustained struggles to assert Horizontal Reservations.

The post Transgender day of remembrance: Solidarity statement appeared first on SabrangIndia.

The Transgender Welfare Equity and Empowerment Trust (TWEET) Foundation has alleged that a cop from the Uttar Pradesh Police has assaulted two of its board members after barging into one of the NGO’s shelter homes in Gurgaon, Delhi NCR. The police officer has allegedly done so to get the victims to reveal the location of his son, a transman, who had been residing at TWEET’s shelter home.

The two persons were allegedly assaulted by the cop who has been identified as Krishna Kant Singh from the Haidergarh police station in Barabanki, Uttar Pradesh.

The duo lodged separate complaints with the police at the DLF Phase 3 police station in Gurugram on Saturday and marked them to the Ministry of Social Justice. They have accused Singh of beating them up and the police officers at the DLF Phase 3 police station of abetting Singh’s actions. They also said they had suffered soft tissue injuries after the beating according to a medical examination done on the same day of the incident. Gurgaon Police PRO Subhash Boken, while speaking to NewsClick, claimed that nobody was beaten up inside the DLF Phase 3 police station in September 1. He said the UP Police inspector Krishna Kant Singh had accused the NGO members of kidnapping his trans son, which was allegedly mitigated by calling both sides to the police station. Commenting on the two complaints filed by Gupta and Ramachandra, he said, “The police will investigate the allegations and if there is any strength to the accusations, an FIR will be lodged.”

‘Beaten and Wrongfully Confined’

According to a statement by the TWEET Foundation, Singh was uniformed when he arrived at the shelter home ‘Aasra’ in Gurugram Sector 24, DLF Phase 3, along with his wife, one son, two unidentified men, on September 1, at around 12.15 pm. After barging in, the four men allegedly beat up Shaman Gupta (33), co-chairperson at TWEET Foundation, and Gautam Ramachandra (24), board member at TWEET. Both victims of the alleged assault identify as transmen.

Gupta alleged that he and Ramachandra were dragged out from the shelter and forcefully put into a jeep by the four accused; their phones were taken away. As a result, they could not contact anyone from the organisation or their lawyers.

“They (the four men) dragged us out and put us into the jeep. I was not even wearing my slippers. The neighbours did not intervene because Singh was in uniform and they thought we must have done something wrong,” Gupta told NewsClick. He further claimed that they were taken to a small room on the first floor of the DLF Phase 3 police station in Gurugram where they were pressured to divulge the location of the cop’s son, a transman henceforth referred to as Deep (name changed).

Gupta alleged he and Ramachandra were repeatedly slapped every time they tried to say anything and they were forcefully kept in that room at the station for more than half an hour. “Singh kept beating us and saying how dare we kept him (Deep) and he will put us in jail for kidnapping,” Gupta alleged. He also said that no one from the police station intervened during the incident.

After some time, the duo said, they would bring Deep to the police station by calling Abhina Aher, founder and board member of the TWEET foundation. They contacted Aher on the pretext of locating Deep and she arrived at the police station with other activists, including Aryan Pasha, who is also a member of the National Council for Transgender Persons (NCTP), a statutory body of the Indian government.

After Aher arrived with others, Gupta and Ramachandra were freed, but not without more hassle, they said.

Pasha, speaking to NewsClick, recalled that upon reaching the police station he saw Gupta and Ramachandra sitting there, their hair dishevelled, their clothes dusty, and the former not wearing any shoes or slippers. He alleged that the policemen at the station disregarded him even when he showed his ID and mocked Gupta for trying to say it was illegal to hold them. “When Shaman started saying there was a law protecting transgender persons and so on, the police began laughing and mocked him. I strongly believe the government should reform the police first,” Pasha said. He added that he has held training sessions for gender sensitisation with the Madhya Pradesh police as part of the NCTP, but that needed to be done on a larger scale in the country so that transgender persons are not abused.

Pasha said that from the police station, he called R Giri Raj, the Director of the National Institute of Social Defence, which falls under the Ministry of Social Justice. The NISD Director then purportedly called the DCP, following which Gupta and Ramachandra were finally let go.

Cop’s Transman Son Alleges Abuse

The TWEET Foundation, run by transgender persons, works with private and government institutions, such as the Union Ministry of Social Justice and Empowerment, for the welfare of transgender persons. The foundation says its Gurgaon shelter home was established in line with the objectives of the Transgender Persons (Protection of Rights) Rules, 2020, which directs the creation of institutional and infrastructural facilities such as temporary shelters and accommodations for transgender persons, who are often persecuted by their families and communities for their marginal gender identity.

The foundation shared a letter from the 24-year-old transman Deep, son of Singh, who urged the Aasra shelter to provide him with a safe place to stay, from where he could take legal action against his family. In the said letter sent over email, Deep said that he was residing in Gurgaon and hailed from Lucknow, and claimed that if he went back to his family, they would either kill him or get him married. Deep added that he needed some assistance in taking legal action and finding a lawyer.

On August 6, in the presence of his parents and members of the TWEET foundation including Gautam, Deep submitted a statement to the Govindpuri police station saying he does not feel safe at home. He said that he faced physical, verbal, and emotional abuse from his father and brother. In the statement, shared by the foundation, Deep said, “I believe they (his family) will lock me in the house and there is a threat to my life.”

Activists Say They are Traumatised

Both Gupta and Ramachandra say they were more mentally traumatised than physically hurt. “It will take some time to recover from this. I am not feeling well emotionally. I feel scared to step out thinking that they might come again. Aasra is supposed to be a safe space for trans persons who do not have supportive families, friends or financial stability. Now, it does not feel so safe anymore,” Ramachandra told NewsClick.

Ramachandra added that in his line of work, where they rescue and shelter transgender persons, parents often come to threaten them and verbally abuse them; however, he has never been subjected to a physical assault before.

The activist further said, “We recently moved our shelter from Delhi to Gurgaon. Previously, we had sensitised the local police station in Govindpuri so that transgenders who go there are not harassed. But here, we are yet to do that. That is why Krishna Kant Singh could not do much when he came to the Govindpuri station. However, he threatened us saying he will come back and see it to the end.”

Deep was not at the shelter home and had gone to his office when his father came looking for him. “It’s a relief that he was not there when Singh barged in. Even though it was a terrible incident, it was not the worst situation. I can’t imagine what would have happened to him had Singh actually found him,” Ramachandra said.

Ramachandra said they wanted to take the case to the court and urge the government to provide security to shelter homes, or otherwise, trans people will lose the handful of safe spaces they have. He recalled another incident in July where transgender persons were allegedly assaulted by the police in Delhi after one of them was picked up from a government-supported shelter home called Garima Greh.

Gupta, in this regard, mentioned the lack of implementation of the rules formed under the Transgender Persons (Protection of Rights) Act. “There is no Transgender Protection Cell in any of these states as per the law. The provisions have to be implemented for the law to have any real impact on transgender lives,” he said. The guidelines under the Act direct the formation of a Transgender Protection Cell under the Director General of Police in the states to monitor cases of offences against Transgender persons.

Courtesy: Newsclick

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