Trans Rights in India
Trans Rights in India is a policy brief released by the YP Foundation, a youth-led organisation working on feminist and other rights-based issues. The report was written by Gee Imaan Semmalar and features illustrations by Kruttika Susarla. Written in the context of the Transgender Persons (Protection of Rights) Bill 2016, the brief outlines how existing laws, or the absence of necessary laws, impact the lives of transgender persons. While aimed at young people, it can also be used by trainers in gender workshops, and be studied to expand knowledge on the state of transgender legislation and policy.
The policy brief notes that existing laws not only fail to adequately protect transgender people, but also makes them further vulnerable – even criminalizes them. The brief highlights the limiting and exclusionary binary framework of gender that informs laws, policies and programs on issues of gendered violence in India.
Besides the preface, this 23-page document is divided into five sections; Introduction (Section 1); Legislation and their Impact on Transgender People (Section 2); Mapping Trans Welfare Boards (Section 3); the Transgender Persons (Protection of Rights) Bill 2016 (Section 4); and Advocacy Direction for Different Groups (Section 5).
According to the Kerala Transgender Policy report of 2015, 96 per cent of the transgender respondents note not raising complaints against violence. As high as 70.3 per cent are not confident to face the police, and 52 per cent of the transgenders surveyed have faced harassment from the police.
The Immoral Traffic (Prevention) Act, 1956, lays down tenets of sex work in India. The Act allows the police to search and arrest without a warrant. Through this law, trans women occupying public spaces are often presumed to be soliciting or indulging in sex work and picked up by the police, this report states.
Section 320 of the Indian Penal Code lists several injuries that are not life-threatening as “grievous hurt” – including emasculation, “permanently disfiguring the head or fact (…) and any hurt which either endangers life or which causes the victim to be in severe bodily pain during the space of twenty days, or unable to follow his ordinary pursuits”. Under this Section, trans women undergoing voluntary gender reassignment surgery in places other than a hospital can be booked by the police.
Anti-beggary and public nuisance laws are used to target and harass transgender persons. In 2011, the Karnataka Police Act added section 36A, giving the police the “power to regulate eunuchs”.
Transgender persons are excluded from inheritance and adoption laws. Even sexual assault and rape laws in India are gendered and binary, states this report. Rape is defined in the IPC as “a crime committed by a man against a woman”, and thus providing no protection for transgender people. Notably, according to the Kerala Transgender Policy Report 2015, 89 per cent of the respondents reported being mistreated at their worksite and 28 per cent have been sexually harassed or raped by partners within one year.
Despite recommendations from transgender groups, The Transgender Persons (Protection of Rights) Bill 2016 defines transgender persons as “(A)neither wholly female nor wholly male; or (B)a combination of female or male; or (C)neither female nor male”. The bill ignores the Supreme Court judgment granting trans persons the right to self-identify beyond gender binaries.
The Transgender Persons (Protection of Rights) Bill 2016 requires transgender children to stay with natal families, and does not recognise adoptive hijra families or other communities of safety, the report states.
The report highlights empowering laws such as the NALSA judgment. It highlights the importance of trans welfare boards which states like Rajasthan, Kerala and West Bengal have constituted.
Focus and Factoids by Neelima Mundayur.
PARI Library's health archive project is part of an initiative supported by the Azim Premji University to develop a free-access repository of health-related reports relevant to rural India.
Research and Writing: Gee Imaan Semmalar,
Illustration and Design: Kruttika Susarla,
Editing and Review: L. Ramakrishnan, Manak Matiyani, Pramada Menon