Transgender people in India have been protesting against a new law that claims to protect their rights while taking away their fundamental right of equal citizenship under the constitution. I spoke to transgender people in Mumbai, asking what they fear and what could be the solution.
The Transgender Persons (Protection of Rights) Bill was passed in the Upper House of Indian Parliament last month and signed into an law by the president of India last month. Transgender people say certain provisions in the law are unconstitutional, including the formation of district-level, five-member screening committees to certify the gender of a transgender person — a provision that apparently runs against the Supreme Court’s 2014 judgement that granted the right to self-recognition of gender to transgender individuals.
“This So That We Can Wear a Saree”
Shreya, a transgender woman, expresses her love for traditional Amrapali dresses: an elegant combination of a bustier and loincloth-drape with a long scarf that goes over the head. As she goes back into her childhood, she regards her attraction to classical dance and Amrapali dresses as something that defined her personhood. She grew up watching the public service broadcaster Doordarshan and copying Amrapali dancers as they swayed in their colorful and dazzling costumes. Shreya’s femininity became a problem for everyone as she grew older and proclaimed her desire to be a woman.
Shreya ran away from her house when she was 12. After running away, Shreya found her way into the Hijra community, as India’s transgender minority is known. It consists of transgender persons who are biologically male but identify as women or “neither man nor woman” or “not man.” Hijras, most of whom are forced to leave their families due to social stigmatization, live together in communities under the guidance of a guru, a spiritual teacher. Therefore, they have gharanas (households), each led by a guru/mentor.
With her new family, her new household, Shreya reached Malvani in the suburb of Malad in northern Mumbai. “At Malvani, there’s a place that had numerous Hijra households. I felt a sense of freedom there. I did not need to hide myself anymore. There, I was called feminine names, and I felt I had discovered what was missing in my life,” she says.
Shreya, who now works with Humsafar Trust, an organization that has been working for LGBTQ+ communities since 1994, recalls her time in a Hijra household where days were spent begging at traffic signals, living in poverty, and serving others tirelessly. She continues, “We leave our families, the security and safety of our homes, only to plunge into poverty and destitution. All this so that we can wear a saree.”
Transgender persons face various forms of gendered violence, harassment and discrimination both at home and in public spaces. A study by Humsafar Trust titled, “Situation and Needs Assessment of Transgender People in Three Major Cities in India,” carried out in Delhi, Mumbai, and Bangalore, over the period between June 2017 and March 2018, found that around 59 percent of respondents in the transgender community had experienced violence: 57 percent in Delhi, 55 percent in Mumbai, and 70 percent in Bangalore. Across these three cities, ones’ own family and relatives were often perpetrators (22 percent), followed by the common public, which is responsible for 21 percent of the cases of violence committed against transgender people.
Shreya believes that the Hijra community is the family she, like almost every other member of the community, found when they had nobody to call their own.
Where Does the Transgender Bill Fail?
On April 15, 2014, the Supreme Court of India gave a historic judgement in the National Legal Services Authority (NALSA) vs Union of India case, declaring transgender people to be the “third gender” in India. According to this judgement, transgender people had the right to be treated equally under the Constitution of India, they had the right to self-identification (identifying one’s gender as male, female, or third gender), and, most importantly, they were to be recognized as socially and economically backward classes, thereby making them eligible for reservations in jobs and educational institutions.
The Transgender Persons (Protection of Rights) Bill was passed in the Lower House in August 2019. Even though the act does away with some controversial provisions that existed in the 2018 bill, including criminalization of begging, severe criticism abounds because it does not give transgender people the right to self-identify their gender without having had sex reassignment surgery.
As per the legislation, the District Magistrate and the screening-committee at the district level will assign a gender certificate to an individual who has undergone a sex reassignment surgery. If one has not undergone sex reassignment surgery, one can only be identified as transgender, not as male or female. Transgender people believe this is coercing them into surgery whereas the demand for free or low-cost sex reassignment surgery has also not been met.
In addition to that, the provision for punishment for serious crimes committed against transgender people is substantially less severe than for the same crimes committed against cisgendered people. The new bill also denies reservation to transgender, intersex and gender non-conforming people, and requires them to be living with their birth families which are the site of physical and psychological violence in most cases.
Shamiba, who has undergone a transition from male to female and identifies as a Hijra, while discussing the failures of the law says, “The biggest problem is … how would they decide your gender identity? If you have not undergone a sex reassignment surgery, do you have no way of choosing your identity? Many of us get a sex-reassignment surgery after years and decades of living in an alien body.”
Shamiba, clad in a golden saree and a matching golden blouse, the markers she used to help me find her out in a huddle of people at the Bandra train station in Mumbai, inevitably thinks about the ominous. “You know, in our society, anybody feminine is considered a sex-object. This gets accentuated if you are transgender. People have this perception that anyone attracted to the same sex is hyper-sexual. With the Transgender Act, what would be the punishment given to a criminal if a transgender person identifying as a woman is raped? For someone who has not had a sex reassignment surgery, why is the law different? Are we lesser humans?” she asks.
Of Oppressed Communities Coming Together
Shamiba, who works with the Vanchit Bahujan Aghadi (Deprived Majority Front), a political party in the Indian state of Maharashtra, talks of her Dalit-caste background. She feels that it is only the lower-caste movements, organizations and individuals, who have accepted the transgender struggle and worked with transgender communities to arrive at effective strategies for countering the oppression of marginalized communities.
Talking about caste in the transgender community, Shamiba says that the communities of Hijras, Jogtis, and Aravanis (other communities having transgender people) in Maharashtra mostly comprise of lower-caste transgender persons. The chances of an upper-caste person coming out and joining one of these communities is very low.
However, for Dalits (people considered untouchables according to the discriminatory caste system practiced in India), caste discrimination exists even inside the Hijra community. After a transgender person runs away from home to join the Hijra community, they have to be accepted by a guru and received into a gharana. Many a times, a person from the lower caste is denied acceptance by gurus.
“The traditional practices within the Hijra/Jogti/Aravani culture have caste-system interwoven within them,” says Shamiba. The Jogti community in Maharashtra mostly consists of lower-caste people who dedicate themselves to a goddess, or are dedicated to the goddess by their family for various reasons. They worship goddess Yellamma. It is believed that the goddess possesses individuals in the Jogti community. According to Shamiba:
Even during the rituals when a transgender woman is “possessed by the goddess,” it is always important whom the goddess has possessed. If an upper-caste transwoman is possessed, then everyone bows down and there is a huge celebration where everyone comes with offerings and prays or makes a vow. This happens in gharanas that are upper-caste and, therefore, also financially way better than small gharanas of lower-caste transgender people.
For lower-caste transgender people, their bamboo baskets with coins and idols of goddesses placed on a red cloth spread over the base are taken along as they go for mangti (soliciting money). That is the home for their goddess, and it comes back to a small dwelling along with the carrier.
“These small gharanas can’t have fancy pandals like rich upper-caste gharanas. Unlike in the case of an upper-caste transgender woman possessed by a goddess, there is no tradition of higher ups in the caste system bowing to a lower-caste touched by the goddess. There is no massive celebration in that case,” Shamiba adds.
What Needs to be Done?
For Shamiba, gender-sensitization should work in parallel with legal reform. It is also essential, according to her, that the transgender community holds internal debates and addresses issues that cause discrimination within the community.
Shamiba thinks that political movements that talk about marginalized people must urgently include transgender persons. She believes that every movement stays superficial when it comes to asking real questions about the rights and dignity of transgender people. “There are political movements of lower-caste and other oppressed communities that are actively engaging with transgender people. This is a good beginning and voices are coming out from intersections of oppressed caste and gender identities. However, a lot more needs to be done to completely integrate the two,” she opines.
India has a long road ahead to gender justice, and the transgender community wants concerted efforts made to bring about legal reform so that transgender people are as free and empowered in their public and private lives as any other citizen of India.