Updated: May 1, 2020
Bangalore: The Covid lockdown has clearly impacted the most marginalised Indians, with a new report predicting that 400 million are likely to sink deeper into poverty. The media have extensively reported the condition of migrant workers and the homeless.
But what has escaped attention is how the transgender community, among India’s least literate and discriminated communities and largely dependent on begging and sex work for its livelihood, is struggling to make ends meet during this time.
The Karnataka High Court is the first High Court to recognise this need, and on 9 April 2020 ordered that two months cash relief, in the form of social security pension, be made available to them and asked the government to also consider providing free rations.
The Karnataka High Court has been having virtual hearings on several public-interest petitions for relief during the lockdown in Karnataka. These petitions include: making available enough masks and protective equipment for health workers; providing relief for migrant workers and care for pets and stray animals.
Akkai Padmashali, who heads the advocacy Ondede, petitioned the High Court after transgender persons in Karnataka during the lockdown were unable to buy rations or foodgrains, as their income was completely dependant on sex work and begging.
Many are HIV positive and need not only medication but nutritious food. Many of those undergoing hormone therapy (for sex reassignment) cannot buy their medication, and others who are elderly need medicines for diabetes, heart ailments and other illnesses. They are threatened with eviction because they cannot pay rents or repay loans.
Against this background, the order of the Karnataka High Court is far-reaching.
First, it recognised that the transgender community is particularly vulnerable during this period of the lockdown. Second, the order to the government to pay two months social security in cash to trans persons can help tide over some of their difficulties. The Karnataka government also agreed to provide all medication free, if prescriptions were provided.
All of these measures are important measures as they help secure basic rights to health, livelihood and food for the trans community, something that a new law passed in 2019 for their benefit does not do.
The Problems With The Trans Law
The law enacted to protect the rights of transgender persons in India makes no mention of social security, food security or protection of their basic rights and needs. The Transgender Persons (Protection of Rights) Act 2019 is a law that has been passed ostensibly to provide rights to transgender and intersex persons, but the very community for whose so-called benefit it is enacted has been opposing it.
Why are trans persons opposing this law?
First, the trans and intersex community was never involved in its drafting and enactment. The views of the trans community were invited when an earlier version of the Act was referred to the Standing Committee. The recommendations of the Standing Committee in 2017 were not taken into account when the 2019 Act was drafted.
Second, the core provisions of the 2019 Act are in opposition to the core values of the transgender rights movement, which are: self-determination of gender, no requirement of medical, hormonal or psychological treatments for change of one’s gender and recognition of full equality for all persons irrespective of one’s gender identity. The 2019 Act does not encompass these core values.
This piece gives a quick overview of the main criticisms of the 2019 Act.
Under Section 4, a transgender person shall have a right to be recognized as ‘transgender’. One of the core objections to this is that this only recognizes the right to declare one’s gender as ‘transgender’ and not as male or female.
In order to get a certificate of identity as a transgender person, one is required to make an application to the District Magistrate, accompanied with such documents, as may be prescribed and the Magistrate shall issue the certificate after following prescribed procedure.
It is not clear what documents may be required to be submitted by an applicant nor what procedure would be laid down. It cannot be ruled out that medical documents may be required or that physical screening may be done as part of the procedure.
Under Section 7, If a transgender person undergoes surgery to change gender either as a male or female, such person is required to make an application for change of gender, along with a certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate and only after being satisfied with the correctness of such a medical certificate would a certificate indicating change in gender be issued.
Missing: The Core Principle Of Self-Determination
All of this points to the total non-application of the core principle of self-determination. Gender self-determination cannot be based on medical reassignment or any other procedure. The Supreme Court stated in 2014, that the self determination of one’s gender identity as male, female or transgender is part of one’s most intimate decisions and one that goes to the core of one’s right to life and autonomy.
The right to have legal documents to support your self-determined gender identity cannot be dependent on medical sex reassignment. Hence an affidavit of self-declaration should be enough for anyone to obtain a gender identity as transgender, male or female. Such a provision should have been included in the legislation.
Section 12 states that no child shall be separated from parents or immediate family on the ground of being transgender, except on an order of a competent court. Section 12 (3) also states that where any parent or a member of his immediate family is unable to take care of a transgender, the court shall direct such person to be placed in rehabilitation centre.
This means that even situations where gender non-conforming young persons who are facing violence at home are forced to run away, would have to either return home to violence or be placed in rehabilitation centres.
Finally, Section 18 which deals with offences states that the acts of compelling or enticing a transgender person to indulge in the act of forced or bonded labour, or harming the life, safety, health or well-being, whether mental or physical, of a transgender person acts of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term from six months to two years. This section has also raised great opposition.
The Case For Amending The Indian Penal Code
Why is sexual abuse faced by a transgender person punishable with only six months to two years while sexual assault in the Indian Penal Code faced by a cis-gender woman is punishable with imprisonment of seven years to life?
If sexual and physical assaults against transgender persons were to be made criminal offences, the easiest way to do so, would be to amend the Indian Penal Code, which has offences against the body, to make the victim gender neutral and make all those offences applicable to transgender persons as well. Including these offences in a special law only for transgender persons with a minor punishment trivializes crimes against trans and intersex persons, treats them unequally and devalues their lives.
It is no wonder that after the passing of this law, several trans persons and trans rights organizations have filed petitions in the Supreme Court challenging the constitutionality of this law.
This is not a legislation that paves the way for transgender equality. Instead it is one that places additional burdens on persons who choose to adopt a different gender identity. The Supreme Court held that self-determination of gender is an integral part of personal autonomy, self-expression and personal liberty guaranteed under Article 21 of the Constitution of India. The 2019 Act far from protecting it, violates the right to life of all transgender persons in India.
(Jayna Kothari is a senior advocate practising in the Supreme Court of India.)