[By Lavanya Regunathan Fischer & Devadatt Kamat]
Delhi – Recently, hundreds of people once again took to the streets of Delhi as part of the annual Queer Pride Parade to drum up support for equal rights for people of diverse gender and sexuality and rally for “collective freedom from patriarchal oppression”. It was only last year that the Supreme Court of India formally recognised the rights of the transgender community as Justice K.S. Radhakrishnan and Justice A.K. Sikri ruled that ‘it is the right of every human being to choose their gender…’
It took a ruling by the Apex court to legitimise a right that should otherwise have been dictated by commonsense if not fundamental human rights – and there is increasing hope that this would serve as a model for the enactment of protective Acts for the wider LGBT community as well.
If we look at transgender rights, even though India is one of the few countries in the world to recognise this community it is not the first to do so.
While the European Union (EU) has been slow to completely recognise transgender rights, anti discrimination laws in most jurisdictions have been read to include discriminatory practises against transgender or intersex persons. Of the EU member states, Germany has long been held to be one of the more supportive and tolerant countries when it comes to granting equal rights for all communities. It has allowed for the registration of transgender and intersex children since November 2013.
The United Nations, too, had released its first report on the Lesbian, Gay and Transgender community, entitled ‘Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation And Gender Identity’ only as late as 2011.
Although acceptance of the legal existence of this community allows for the enforcement of positive rights and marks the end of discriminatory or hateful actions against them, the unfortunate fact is that few countries record crimes against transgender persons separately and many transgender persons do not come forward or cases are not recorded due to a prevailing lack of trust on the part of the community and lack of action from law enforcement officials.
Of course, organisations like Transgender Europe have attempted to document the number of transgender people killed every year in hate crimes as a way to highlight the struggle of the community but the problem they, as all studies on the issues related to transgender populations, face is the lack of data.
In India, the transgender community has played visible role in society throughout history.
Their presence has been recorded in various Hindu texts as well as in the works of writers and historians from the Mughal courts, which is a far cry from the present marginalisation they face.
While these records show that the community has always faced challenges, the kind of harassment they face today is a result of a systematic flawed governance model owing its existence in large part to colonial legislation and administrative practice.Though the colonial Acts have been repealed the bigoted practices they fostered continue to flourish.
The Criminal Tribes Act, 1871 that was meant to be ‘an Act for the registration of criminal tribes and Eunuchs’ painted all transgender people with one brushstroke of criminality by association. Such prejudiced legislation embedded discrimination in governance, which, in turn, translated to systematic bias.
In fact, the effects on healthcare might have been far reaching. As the 2011 UN Report on the Human Rights of LGBT people states with regard to healthcare (and it is appropriate to remind the reader that though this is talking of India, it was before the positive ruling decriminalising homosexuality was overturned): ‘(I)n countries where no criminal sanctions exist, homophobic, sexist and transphobic practices and attitudes on the part of health-care institutions and personnel may nonetheless deter LGBT persons from seeking services, which in turn has a negative impact on efforts to tackle HIV/AIDS and other health concerns.’
The recognition of the legal existence of this community as the third gender allows for the enforcement of rights, as the Indian Supreme Court correctly articulates. This should also serve as a framework for bringing positive change, hopefully in the very near future, for entire LGBT community, especially in terms of protective Acts and rights such as the right to marry.
It is about time that India validates its claims to tolerance and inclusion; a claim that seemed to ring hollow especially after the court judged homosexuality still illegal as per section 377 of the draconian colonial legislation, the Indian Penal Code of 1860 that is in force in the country. Incidentally, one of the recommendations of the 2011 UN Report is to repeal laws criminalising homosexuality as it ensures a greater acceptance of people with different sexual orientations.
It is clear that homophobia still exists in India. And since homosexuality and transgender rights are often agitated for together it is clear that the country has just come half way in the struggle for dignity of all her people.
The website of the UN News Centre, which issued a press note in 2011 on the occasion of the release of the Report, quotes Charles Radcliffe, chief of the Office of the High Commissioner of Human Right’s donor and external relations section, as having told UN Radio that
“one of the things we found is if the law essentially reflects homophobic sentiment, then it legitimizes homophobia in society at large. If the State treats people as second class or second rate or, worse, as criminals, then it’s inviting people to do the same thing.”
While there have been sporadic outbursts of progressive moves, such as the Election Commission of India introducing a third category in its voter registration forms, undertaken by the Indian state machinery it has not been uniform.
It is hoped that this is but the start of a more inclusive and unbiased statutory regime translating into a fairer and more just society.
This year, as the LGBT community renewed its appeal for the repeal of Section 377, it made a strong case for a space for diversity and the realisation human rights for all:
“Queer people cannot be free in a world where people of various hues are shackled, not just because a common oppressor – overarching patriarchy – attacks us all, but also because many of us straddle multiple identities – we’re Dalit and queer, Muslim and queer, Tribal and queer, Disabled and queer.”
This article has been published in arrangement with the Women's Feature Service.