Transgender rights 'stalled'

In April 2014, India's highest court decided on a case aimed at drawing attention to the discrimination faced by the transgendered community in the South Asian nation. After hearing the case, the judges ruled that transgender people should be recognized as a third gender and not only enjoy all fundamental rights, but also receive special benefits in education and jobs.

But according to rights activists, the implementation of this historic ruling has been held up, while attacks against transgendered people continue. Legal justification for the harassment and marginalization of this community still exists in the remnants of old colonial-era laws.

One such law, Section 377 of Indian Penal Code, criminalizes same-sex relations among consenting adults, and is used as a justification for discrimination against transgendered and homosexual people. These laws, coupled with the social stigma have proven to be difficult hurdles on the road to equality for this marginalized group in India.

In a DW interview Jayshree Bajoria, a researcher for Human Rights Watch in Delhi, says that despite the landmark ruling transgender people remain vulnerable to harassment and violence, not just by the police, but also by a society that still frequently ridicules them.

DW: Have there been any improvements in the treatment of transgender people in India since last year's Supreme Court ruling?

Jayshree Bajoria: The Supreme Court judgment was a historic one, finally recognizing the rights of transgender people and treating them as equal to other Indians. While this has helped in terms of their identity, Indian authorities now need to implement court directives aimed at mainstreaming the transgender community, ending discrimination against them, and addressing their social protection needs.

How many transgender people are currently living in India?

The latest population census of 2011 counted transgender people as a separate category for the first time in India. According to this official count, they number nearly half a million. Some activists from the community say the actual numbers might be higher.

There are reports about transgender people being abused by the police. Why has this been tolerated up until now?

The transgender community has long endured police violence in India. The colonial government criminalized the hijras, a distinct transgender and intersex community that has a formal system of shared residence and mutual support. Some states continue to have provisions that have their roots in the abusive colonial-era laws. While these laws are rarely used to arrest, they make transgender people vulnerable to police harassment, violence, and extortion.

Any laws or provisions on the books that allow criminalization and police harassment of transgender people should be repealed. Police should be sensitized to rights of transgender communities, and complaints of police violence investigated and prosecuted. Greater organization by the communities for their rights, including against police harassment and violence, have also proven to be effective.

But police violence cannot be seen in isolation. In some ways, it mirrors the widespread social prejudice against transgender people in India. They endure discrimination and humiliation not just from the police but also medical authorities. Often, families too, reject transgender children. They are frequently publicly ridiculed.

Transgender people have long been denied basic rights, including the right to vote, own property, marry, and claim a formal identity through a passport or other government identification. They have also been unable to secure government services such as food subsidies, education, employment, and health.

Often, it leaves them with no option but to either beg or engage in sex work, exposing them to further violence at the hands of law enforcement authorities.

What are the special benefits granted by the Supreme Court ruling and have transgender people been receiving them?

India has a policy of setting aside a certain percentage of seats in public jobs and education for marginalized and underprivileged communities. Recognizing the transgender community as a vulnerable group, one that faces socio-economic marginalization and exclusion, the Supreme Court has directed the authorities to treat them as socially and educationally backward classes of citizens and extend these benefits in public employment and educational institutions to them as well.

How difficult would it be for the legislature to overturn the section 377 of the penal law?

In 2013, the Supreme Court ruled that it is up to the parliament to repeal Section 377, which serves to criminalize same-sex, consensual, adult relationships. This was a real setback for the rights of LGBT communities, because it overturned the landmark judgment of the Delhi High Court which had ruled that section 377 violates fundamental freedoms. The Supreme Court is still hearing the matter.

But since the government led by Prime Minister Modi enjoys a significant majority in parliament, it should comply with the findings of the Delhi High Court and take the lead in repealing the law. The previous government had not opposed the Delhi High Court ruling. It was challenged instead by religious and other conservative groups. Section 377 is a colonial-era law, and India should join other progressive members of the Commonwealth to remove it.

What can Indian authorities specifically do in order to enforce the Supreme Court ruling that protects the rights of transgender people?

For now, the implementation at a central level is stalled because the government has sought clarifications from the Supreme Court on the judgment. The government should take steps to prioritize the enforcement of the ruling and implement the recommendations of an expert committee formed by the Ministry of Social Justice and Empowerment to ensure the inclusion of transgender people and empower them by providing government support for education, housing, access to healthcare, skill development, and employment opportunities.

The committee also laid down recommendations on how to address stigma, discrimination, and violence facing them.

Meanwhile, state governments can take their own initiatives to address the rights of transgender people. For instance, the Tamil Nadu state government has shown the way by forming a Transgender Welfare Board which allows transgender people access to existing government schemes in housing, education and employment, and also designs and implements welfare schemes exclusively for transgender people based on their needs.

What will it take for Indian society to accept transgender people as equals?

Legal recognition will be an important first step toward equality. Abusive laws will have to go too. At the same time, there needs to be greater awareness regarding gender diversity in families, in public spaces, educational institutions, in health care, in workplaces, and among law enforcement authorities, including police.

Jayshree Bajoria is a researcher for Human Rights Watch in Delhi.