By recognising the rights of the transgender community, the state is not doling out largesse; it is only performing its duty under the Constitution
They came beautifully dressed, some a tad brightly, but all beautifully and proudly, there was much chatter, and a lot of sisterhood. It was the public hearing of transgenders at Delhi. An excluded group must definitely feel cheered in a gathering, where the members of that group form the majority. True, the transgender experience is full of pain. It is a story of gross human rights violation, but today they had a voice, they had visibility.
The Pakistan Supreme Court recently ruled that those who do not consider themselves to be either male or female should be allowed to choose an alternative sex in their national identity cards. I thought of the times when I fill up forms, mindlessly marking (F), and what it must be like to have the pen faltering then, not knowing if I should mark the one or the other. I thought of the times when I enter the public restrooms for women, and if at all something hits me it is the sensory assault of those pit-places, and what it must be like to feel a sense of achievement that finally I gained my right to enter the restroom of my choice. A body which is built in one way, houses a mind which is crying to be something else. It is difficult to walk in those shoes, but that does not mean those shoes are not there.
The stories are heart-rending. Every citizen has a right to life, the right to self-expression, under the Constitution. The right of gender expression is inherent in it, as much as the right of expression of sexuality. This is a facet of the right to life. The space of the third gender is not a space that is easy to inhabit for the ones who are there, and not easy to imagine for the ones who are not there.
Parents and siblings do not understand why this child cannot be like the others. Nor does the child know why, when he looks like his brothers, he wants to be like his sisters or the other way round. Acceptance is denied and the child faces exclusion even at home. In Sunil Babu Pant vs Nepal Govt and others, the Supreme Court of Nepal used the Yogyakarta Principles and held that sexual orientation is not “mental perversion” or “emotional and psychological disorder” and that the people of different gender identities are entitled to enjoy their rights without discrimination.
The discrimination against the third gender is embedded in our consciousness and is aggravated by ignorance and insensitivity. Even well-meaning persons are uncomfortable if they face someone who does not fit in the Procrustean beds of “the normal”. One might well ask, why a person who has a man's body, can't mark (M) in application forms, or queue up in the men's restroom and be done with it. I will give you two answers. The first comes from a member of the community, “In public places, we are treated differently. If I am out and visit the women's washroom they won't like it and if I go to men's washroom … you know it would be a different story. Where should I go?” The next answer is from Justice Albie Sachs's The Strange Alchemy of Law and Life: “There was an abysmal decision by our top court, the appeal Court, in the 1930s, when people of Indian origin objected to being excluded from post office counters where white people would queue. Three out of four judges could not see the problem; the applicants could be served just as well in the one queue as in the other. Only one judge, Gardiner said, ‘It touches on the dignity of people to be excluded, it's not simply a question of functionality'.” The brown man will get the same postcards in the other counter. So why complain? No, it is about dignity, real dignity to all barring none. Justice Sachs speaks of the equality of the vineyard (grading up) or the equality of the graveyard (levelling down). The choice is entirely our people's and of their representatives.
That day at the public hearing for “Access to Justice and Social Inclusion” Aradhana Johri (Additional Secretary, National AIDS Control Organization) narrated an incident at a parliamentary consultation. She said: “Avina [a transgender] got up to speak and asked the audience, “Do you see me?” and when they said yes, she said that though you ‘see' me you don't ‘see' me. I am invisible, I am nowhere, we are the third gender.” Our country must be having the highest percentage of “invisible” people, people who do not matter, the disabled, the third gender, the old, the oppressed, the pavement dwellers, the list goes on. Perhaps that is why the forgotten ones vote in large numbers while for the others, it is a matter of option. For the invisible groups, it is important that they vote, because an election is the only time they count. That is why this community fought for the right to indicate their gender as “O” for ‘others' in the electoral rolls, and got it in 2009.
Recently, the fight for equality of transgenders scored a remarkable victory. The Argentine Senate unanimously passed the Gender Identity Act, which has been described as the most progressive and liberal in the world. It recognises that a person's subjectively felt and self-defined gender may or may not correspond with the gender assigned at birth. This is the right that the participants at the public hearing claimed, which is acknowledgment of their “human-ness”. If their gender identity is not accepted then even if they are elected, their election may be nullified. This has happened in our country.
The State of Tamil Nadu has a fair record of recognising the rights of the transgender community. But let us remember that this is not state largesse, this is the state performing its duty under the Constitution. One participant said in poignantly poetic words that we have day and night and the beauty of dusk and dawn too, the in-betweens, and asked why their worth cannot be recognised. Transgender persons walking alone are subjected to harassment, and so, in defence, they adopt a loud and aggressive behaviour. There are highly qualified, educated and articulate persons who cannot secure employment because of the difference. They pleaded, “Please do not drive us to sex-work. If we have no other option, what do we do?” They argue that if there can be reservation for the differently-abled, there must be for the differently-gendered too. One speaker said, “I too want to nurture my child.” There are no answers in a climate of non-acceptance.
The experience of the transgender community with the police is dignity-destroying. The case of Jayalakshmi v State of Tamil Nadu is an example. A young transgender named Pandian was interrogated by the police regarding a theft case. He was so abused and sexually harassed by the police personnel that he poured kerosene and set fire to himself. The Madras High Court ordered compensation. If the face of law which should protect the citizen turns brutal, to whom will the weak and vulnerable turn? Hear this voice from the community, “When [the police] saw my body they said that there is no hair on your body anywhere so you get yourself waxed or what do you do. First they began asking nicely then they told me that night time is the time for the police. After that I never went to the police.” How far can one go in reducing the dignity of another?
The young transgender drops out of school because of exclusion and one participant argued, “Provisions should be made that in whatever attire a child comes to school the right to education cannot be denied.” A safe childhood and access to education is their right. When state and society have no space for the different ones, they are doomed to be excluded. So wherever there is a form to be filled or there is a definition of “person” as male or female, this group goes invisible. The community wanted to know how the domestic violence against them can be addressed if the law recognises protection of women alone. They wanted an Indian protocol put in place for the sex change process.
All they want is to be recognised as persons and treated with dignity. I will end with their own words: “Today … we want to earn a decent livelihood, live with dignity.” In short, they assert their right under Article 21 of the Constitution.
(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board)