'We, the (Transgender) People of India'

Section 377 and new dilemmas of transgender communities

Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses. 

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Transgender people in the sub-continental region have had a tumultuous history. From deification to damnation, they have been revered and feared by people who understood little about them. Also, to call the people who do not identify with the gender binary transgender in India is another set of problematics altogether. Like various other countries in the global south, the Indian hijra is a unique identity found primarily in the sub-continental area. Within the hijra traditions, there are several identities, spreading across the different colours and sub-cultures of India.

10 UNDP report of Transgender Issues noted that “[i]n India, people with a wide range of transgender-related identities, cultures, or experiences exist - including Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv-Shakthis […]. Often these people have been part of the broader culture and treated with great respect, at least in the past, although some are still accorded particular respect even in the present”.

On the 15 April, 2014, the Supreme Court of India made judicial history in India, and perhaps did something that many courts of developed countries have not been able to do till date – it legalised the presence of transgender people in India, and allowed the legal creation of a “third gender” category through the National Legal Services Authority versus Union of India, nicknamed the Nalsa case. Thus, for the Supreme Court of India to embark on a journey of defining gender, transgender and the third gender in the Indian context was nothing short of a Brobdingnagian endeavour. It gave a fairly expansive definition of transgender, contextualising it to the Indian situation. More importantly, the decision went into enumerating the various rights without which a person cannot be said to be exercising their citizenship entirely.

However, the Court did not enter into any discussion on one of the biggest proverbial thorns in the side for queer rights movements in India - Section 377 of the Indian Penal Code – a section which criminalises non-procreative sexually acts, but is almost exclusively used to harass queer men, transgender women and hijras. Previously, the apex court had upheld this section in Suresh Kumar Kaushal versus Naz Foundation and Others, stating that any legislative change to be made should be done by the Parliament. This educated silence on the part of the apex court in the NALSA case has led to a new type of precarity for transgender people in India.

How does one exercise equality as a citizen? Is having the right to political participation and the right to put down your gender as you want in the national census enough? While it is a step in the right direction, to be able to identify as transgender or a member of the third gender does not make the people involved less vulnerable to abuse under Section 377 of the Indian Penal Code. The specter of Section 377 is something which has its roots in the colonial biopolitics of the British Empire. Thus, almost every colony was subject to it in some form or the other. While Great Britain has moved on when it comes to decriminalizing non-procreative sexual conduct, the former colonies still find it difficult to do so.

When the Naz case was initially filed, it was filed for the entire queer community but from the perspective of health issues, specifically HIV, and how it affected the MSM, transgender and hijra communities in India because of them being forced to carry on with their lives in a clandestine manner. In the meantime, in 2012, the NALSA case was filed to get transgender people the socio-legal space they have been denied for centuries as equal citizens and to ask for the recognition of the third gender category.

The Transgender bill, which was tabled in the Lok Sabha in 2016, and is yet to become a statute, watered down the judgment of the apex court. While it does lay the groundwork for exploring variations of gender and strengthening affirmative action and general protection towards transgender people, it overlaps in scope for several crimes that are already punishable under the Indian Penal Code. Also, while it enumerates the right to reside in a household, it does not consider the right to marry or the right to family within the Act – rather it focuses on protective mechanisms. This studied omission also stops the contradictions of the apex court’s decision of allowing all rights including the right to marry and the right to family with Section 377 of the Indian Penal Code.

With several states, especially in Southern India, which has been a very progressive region in general when it comes to the rights of transgender people, moving forward with local legislations, it might be very difficult to create a cohesive movement to ensure equal rights and treatment of transgender people across the board. Some states are bound to be slower on the uptake. However, even when it comes to being included in the electoral rolls, with several governmental processes being abysmally slow, it has been an arduous task for numerous transgender people in various parts of India to be included under the third gender.

Coming back to Section 377, the Supreme Court of India has been approached to hear a curative petition on the Naz decision given by the court in 2014. The curative petition has several petitioners, and is a conglomeration of seven petitions, including one by three transgender petitioners, Akkai Padmashali, Uma Umesh, Avinash Suvarna and Suma M, who filed this petition before the Supreme Court under Article 32 of the Constitution of India. Article 32 of the Constitution allows for individuals to seek direct redressal of the violation of their fundamental rights. Through this, the petitioners claimed that their right to equality before the law, right against discrimination on grounds of sex, right to life and personal liberty, and certain rights enumerated under the freedom of speech, under the Articles 14,15,19 and 21 respectively. The apex court had already guaranteed these rights under the NALSA decision, and to have a statutory provision which clearly goes against the exercising of these rights is unconstitutional to say the least.

When it comes to educated, middle-class cis gendered people queer people, living under the shadow of Section 377 is less daunting than it is for visibly differently gendered or gender-non-conforming people. Made conspicuous by the mere fact that they don’t fit into the normative gender constructions expected in a heteronormative, largely heterosexual society, they become victims of harassment on a variety of levels where micro aggressions are fewer than the open discrimination that they face. Despite the apex court’s verdict, to see a transgender person working in mainstream employment is a rarity, or to get housing accommodation in safe neighbourhoods for that matter. With the added burden of having a law which can be utilised to make their existence difficult, transgender people carry the largest burden of the law on them.

India has taken over sixty years to grant full citizenship status to a vulnerable section of the society it knew existed even when the Constitution of India was being written. Other politics and other populations were prioritised. When is a minority too minor to be considered? How long must the suffering be and who should be the quantifier of the suffering, before our country takes cognisance of it? We have a constitution which enumerates the same rights for every citizen, but at the ground level, it is an Orwellian drama. It is not only about having the right, but also about being in a position to claim the right.

The Transgender Bill is yet to become a statute, but once it does, it will be an enormous correction of historic wrongs. However, it will be small step towards the right direction, for we know only too well how often, despite the existence of robust laws, ground-level realities take forever to change. With civil society organisations working tirelessly and queer rights activists literally working round the clock, there is hope that it will be a movement from strength to strength. However, with the decision on Section 377 of the Indian Penal Code still hanging in the balance, it can have an enormous impact on transgender people and the queer community in general — whether positive or negative is left to be seen.

Debjyoti Ghosh is a Human Rights lawyer originally from Kolkata, West Bengal. He is currently pursuing his SJD from Central European University, Budapest, in Comparative Constitutional Law, and looking specifically into the right to health for transgender people through a comparative study of India, Brazil and South Africa

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Original images courtesy: Reuters

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