PROTECTING TRANS LIVES GOES DEEPER THAN LAWS AND REPRESENTATION

Priti Salian on how transgender activists are fighting the colonial mindset to push for equality in India.

By Priti Salian

When he was 16 years old, Mohul Sharma made the tough, life-changing decision to drop out of school – despite his good academic record.

Mohul was assigned a female gender at birth, but had always felt like he should have been raised as a boy. Growing up in Delhi, he cropped his hair and participated in sports so he could dress in shorts and pants. ‘I liked using male pronouns for myself,’ Sharma says.

He avoided meeting people and had very few friends. Yet, his peers could sense that something was amiss. ‘Who are you?’ they asked. ‘Are you lesbian? Are you a chhakka (a Hindi slur for a trans person)?’

Sharma’s teachers didn’t spare him either. ‘Close your legs when you sit. Grow your hair,’ were their instructions. Once, his father was summoned to the school to be told that his child had a ‘mental issue’ because he didn’t behave ‘like a girl’.

‘The thought of continuing with schooling was depressing,’ says Sharma, who affirmed his gender identity as a man in 2022.

These kinds of experiences have been commonplace for trans children. According to a 2017 report commissioned by the National Human Rights Commission, 29 per cent of trans people in Delhi and 33 per cent in Uttar Pradesh never attended a school. Over 50 per cent of those who did were harassed by classmates and 15 per cent by their teachers, forcing them to leave education altogether.

As in many countries, discrimination against trans people in India runs deep. In a 2017 survey, nearly half of the 610 respondents agreed that transgender people are committing a sin and 55 per cent said that they violate cultural traditions. Nearly 60 per cent thought that trans people were mentally ill.

IN THE EYES OF THE LAW

In more recent years, there have been developments that could indicate progress in tackling transphobia. Trans people are more visible in public life – for example Delhi’s ‘first’ transgender councillor Bobby Kinnar was elected in December 2022, India now has several trans judges, and the country’s ‘first trans parents’ have just welcomed their first child.

There have also been a number of legal advances. In 2014, the Supreme Court made a landmark judgment allowing trans people to identify as a ‘third gender’. This preceded the 2018 striking down of Section 377 of the Indian Penal Code, a colonial law which criminalized gay sex.

In 2019, the Transgender Persons (Protection of Rights) Act (TPPRA) was passed, with associated rules published the following year. The Act prohibits discrimination against transgender people when it comes to things like education and employment. It also includes the right to self-identification as a trans person. A National Portal For Transgender Persons (NPTP) was introduced so that people could apply online for a ‘transgender ID’.

Members of the transgender community dance during a protest against the passing of the Transgender Persons (Protection of Rights) Bill in New Delhi.

Discrimination and stigma often stops trans people from accessing essential provisions such as healthcare and housing. The ID should be a gateway to all government social welfare schemes including upskilling, shelter homes, scholarships and medical insurance.

A 2016 study found that safe housing was trans people’s top demand of the government. In 2020, it launched 12 shelter homes for trans persons across the country under the Garima Greh scheme, but each can only accommodate 25 people for a year – clearly not enough to address the need in a country with at least 1.9 million trans people.

According to a 2017 report commissioned by the National Human Rights Commission, nearly 90 per cent of transgender people surveyed in Delhi and Uttar Pradesh believed that employment opportunities are hard to come by, even for trans people with qualifications.

‘I interviewed with three organizations and all of them rejected me on the grounds that it could be “objectionable for other employees to have a trans person among them” and would “spoil the office environment”,’ recalls Sharma. Luckily, four years ago, at the age of 20, Sharma found a job with an equal opportunity employer in Delhi, as a senior diversity, equity and inclusion associate at a hotel.

BARRIERS TO ACCESS

While the TPPRA states that it provides ‘protection of rights of transgender persons and their welfare’, many trans rights advocates were far from celebrating when it was passed – some even protested against it. It’s argued that the Act leaves trans people open to abuse and discrimination, partly thanks to the process involved in getting an ID.

‘You’re basically putting a lot of burden on trans people and adding a lot of bureaucratic layers and red-tapeism,’ Delhi-based researcher Ajita Banerjie told US media organization NPR.

It’s also taking months for the IDs to be issued to applicants; there should be a turnaround time of 30 days. According to the NPTP, only 11,159 transgender IDs have been issued as of 7 March 2023 – a tiny percentage of the total trans population which is likely to exceed the 1.9 million estimated in a 2011 survey, and short of the half a million estimated in the 2011 Census.

For Sharma, who has been waiting more than four months for his ID, the delays have affected his return to education. Until he gets it he isn’t able to change the name on his school documents and take his secondary school exams.

Often the delays in processing a trans ID are due to the office of the District Magistrate, responsible for its issue, not following the procedure laid out in the TPPRA Rules and demanding extra proof of identity. This may require the applicant to travel back to the school or home they might have fled, at the risk of facing abuse, transgender activist Grace Banu explains.

In Banu’s experience, even the lawyers preparing self-identification affidavits often ask for a bribe or just avoid working for transgender people altogether. ‘If only trans persons were hired in government offices, there would be more awareness and less stigma about our existence,’ Banu says.

EASY ON ABUSERS

The TPPRA is out of step with the rest of Indian law when it comes to crimes against trans people. According to TPPRA, perpetrators of such crimes, including sexual assault, can be fined and imprisoned for six months to two years.

By contrast, the Indian Penal Code – which doesn’t yet include trans people – has a much longer punishment for sexual abuse. For the rape of women by men, as well as the assault of men by men, the potential penalty is at least 10 years in prison, extendable to a life sentence – plus a fine.

Furthermore, it seems that those most likely to attack trans people are the ones whose job should be to protect them. A 2016 study conducted with 60,000 transgender participants, across 17 states, found that the greatest perpetrators of violence against them were police and law-enforcement officials.

Two nurses crouch down and place flowers in preparation for the inauguration of the first transgender ward at Gokuldas Tejpal Hospital in Mumbai.

Healthcare is another area of discrimination. As Aqsa Shaikh, a Delhi-based transgender doctor and activist explains, the TPPRA originally mandated a proof of surgery in order to obtain a trans ID, but it didn’t state which type of operation. ‘Not everyone can afford surgery, and many may choose not to,’ Shaikh says.

The TPPRA Rules changed the wording from ‘surgery’ to ‘medical intervention’, but since the law prevails over the Rules, the government officials often still ask for proof of surgery.

Last August, the Ayushman Bharat TG Plus scheme was launched, providing insurance cover of 500,000 rupees ($6,000) annually to a transgender ID holder to cover all aspects of transition-related healthcare. Due to a scarcity of medical expertise, some surgeons get away with new experimental surgical procedures as their transgender clients are not aware of the risk.

‘Most trans people have to rely on private, expensive, often substandard quality facilities for sex-reassignment,’ adds Shaikh.

COLONIAL ROOTS

Transphobia in India has a complicated history. Historian Jessica Hinchy, an assistant professor at the Nanyang Technological University, Singapore, argues that much of the discrimination experienced by transgender people has colonial roots.

In the mid-19th century, just after the British started ruling India, a colonial anxiety about the Hijras – an ethnic community of trans women – began to develop. To earn a living, Hijras travelled to homes in nearby villages for weddings and births where they danced, sang and offered their blessings (called badhai in Hindi) to families, in exchange for money.

Hinchy writes in Himal Southasian that the British, who ‘associated mobility with criminality’ called the Hijras ‘wandering people’ and an ‘obscene’ public nuisance that undermined the order of public space. ‘Colonial administrators additionally claimed that Hijras were the kidnappers and castrators of children,’ and ‘professional sodomites’.

In 1871, under the Criminal Tribes Act (CTA), the police started to register the ‘ungovernable’ ‘eunuchs’ (a derogatory term for trans women the community strongly objects to). They prohibited them ‘from wearing feminine dress and performing in public, thereby outlawing Hijras’ gender expression and reducing their livelihood options,’ Hinchy writes.

The British perception of Hijras as a threat to morality was in distinct contrast to the place they held in Indian history.

The ancient text, Kama Sutra, has references to the ‘third gender’ as does the 2,300-year-old epic poem ‘Ramayana’ which tells the story of the deity Lord Rama. The story goes that when Rama, exiled for 14 years, was leaving his kingdom to live in a forest, his subjects tried to follow him but he asked all ‘men and women’ to return to their homes. The Hijras, who identify as neither gender, did not find it necessary to follow his order and stayed. Rama was touched by their loyalty and granted them the power to confer blessings at births, weddings and other special occasions.

Even during the Mughal dynasty from the 16th to the 18th century, Hijras were trusted guardians of the harems. Many served as administrators, generals and political advisors.

SOCIETAL ATTITUDES

While it would be too simplistic to say that transphobia is merely a colonial import, it’s clear that it’s going to take more than legislation and public representation to bring about equality for trans people.

The activists New Internationalist spoke to insist that more work is needed to change societal attitudes towards transgender people and their rights, through, for example, improvements to the education system and training for police and health professionals

‘Popular culture and the media, especially the regional media, should also enhance awareness about the community with accurate reportage,’ says L Ramakrishnan, LGBTQI+ activist and vice president of the public health NGO, Solidarity And Action Against HIV Infection in India (SAATHII).

What’s more, the public perception of the ‘trans gender’ is almost always focused on trans women who identify within the traditional Hijra construct. ‘Trans men are often rendered invisible, and many have a hard time getting government officials and medical providers to understand they are transgender too,’ says Ramakrishnan.

Karthik Bittu Kondaiah, a transgender activist and associate professor of biology and psychology at Ashoka University, Sonipat, says: ‘The social view of certain groups being prone to criminality, largely because they are dispossessed groups, persists.’

And relating the struggle for trans rights in India to that of the many other marginalized groups, Kondaiah concludes: ‘One cannot create safe islands for trans people without actually improving the general understanding of the public on the rights of all people to exist freely.’

This project was funded by the European Journalism Centre through the Solutions Journalism Accelerator. This fund is supported by the Bill & Melinda Gates Foundation.

Courtesy : New Internationalist

Note: This news piece was originally published in newinternationalist.com and used purely for non-profit/non-commercial purposes exclusively for Human Rights.