India: The Fight Over Transgender Rights / Critical Moment / Interview

Holding a Skype conference call with members of the TISS Queer Collective, in Mumbai,  I am confronted with my own ignorance of the social and political landscape of India. Choppy video, several call failures, and video slowdowns mark our conversation, but there are moments of both broadband and mental clarity. Meeting with Diti and Sai, omitting their last names for safety, via my friend Aabha, I am schooled in the tragedy that is Indian politics today. Our discussion revolves around the “Transgender Persons (Protection of Rights)” parliamentary bill, which has been circulating in various iterations between India’s Upper and Lower Houses, since a landmark Indian Supreme Court decision in 2013.

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Rainbow/Indian Flag / Image Courtesy Of: https://thediplomat.com/2016/07/beyond-section-377-where-does-indias-lgbt-movement-stand/

The Supreme Court ruling called for a transgender affirmative action program, right to self-select gender, and an end to all social, parental, cultural and economic forms of discrimination. After the ruling, Human Rights Watch reports, Ramesh Bais, a member of parliament from India’s ruling Bharatiya Janata Party (BJP), stated “While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight, there is most certainly shame and dishonor in being a homophobe, a transphobe and a bigot.” Despite the BJP’s conservative, right-wing core of Hindu supporters, it is important to remember, Diti notes, that “there is a historical space, not necessarily a full acceptance, but a space for transgender people in some of Hinduism’s traditions, in fact, in India, historically, we have transgender people as a part of our culture.”

Whilst the situation has been hostile towards LGBTQ people in India for centuries, analogies between Hinduism’s patriarchal conservatism and Christianity’s equally patriarchal restrictions only go so far. Diti’s statement above shows that cultural guidebooks for religious fundamentalisms regarding sexuality get scrambled. Sai agrees, “Yes, there is even an ‘upper caste’ of Indians who are making a transgender sect within the Hindu religion. And, as Diti said, there has been a cultural acceptance, or at least a coexistence.”

Much of the current homophobic and transphobic rhetoric, thinking and laws come from the British colonial period. Many bourgeois, British Victorian mores are still enshrined into Indian penal codes. A nasty legacy of violent physical and mental occupation. Of the Indian penal code, Chapter XVI, Section 377, criminalizes acts consensual sex between same-sex adults, “dat[es] back to 1861,[1] introduced during the British rule of India (modelled on the Buggery Act of 1533,[2]) criminalises sexual activities “against the order of nature”, arguably including homosexual sexual activities.” Sai notes “The Minister of Social Justice and Empowerment didn’t even understand why Section 377 might be of issue with a bill on transgender people.”

The Orwellian-named Ministry of Social Justice and Empowerment is responsible for preparation, suggestions into the making of, and ultimately, the implementation of this bill. Yet, despite the Supreme Court’s decision, subsequently passed bills in the Upper and Lower Houses of parliament are “always tabled, if passed in one House, the first was passed in the Upper House, and it was far superior to this current bill, so we have had legislative movement, but then, even after consultations, and a parliamentary committee that took depositions, traveled all of India taking these statements from transgender people, this bill has gotten progressively worse,” says Diti.

So what does the current bill, introduced on November 23rd, 2017 do?

Horrifically, it does many things, all bad, making the bill’s name itself Orwellian. Three organizations in India, LABIA — A Queer Feminist LBT Collective, TISS Queer Collective, and Zehen, have found that the bill,

“Does not uphold the right to self-identify gender, a basic constitutional right as stated in the Supreme Court (SC) judgement in NALSA vs Union of India in April 2014 (NALSA verdict).  Mandates physical screenings by District Screening Committees to be used to certify trans, gender variant, and intersex people as transgender, thereby contradicting the right to self identify as established by the Supreme Court and international law. Redefines who is transgender by confusing with intersex persons thus rejecting the SC verdict and [the[ expert committee report of your ministry and confusing concerns of transgender and gender non-conforming people with intersex persons. Criminalizes begging thus taking away the fundamental right to live of many who are forced into begging because of no other livelihood options.” 

Notably this last point, about begging, is nuanced. Begging is already illegal throughout India. So what the law does is expand the definition of begging. “For example,” Sai says, positioning the camera near his face (5 are sharing one mobile phone camera), “in a transgender Gharana [family, house], this bill criminalizes a relationship whereby the chella [younger one, student] goes out and begs for themselves and their guru, it does so by criminalizing those who incite a person to beg. This will affect an entire alternative family system created by the transwomen, whereby a younger transgender person, fleeing a transphobic home, would find a new family.”

Concerns, put out in the same statement above, continue,

“[It] Criminalizes the adoptive families and rejects families of choice of transgender persons and instead upholds the rights of birth families that are known to be violent and unaccepting.  Does not address affirmative action in education, employment, and trans and intersex healthcare in contravention to the SC verdict and the recommendations of the expert committee. Offers token measures to address discrimination, without actually addressing the lack of real mechanisms to address violence and continuous and brutal violation of rights.”

What Sai, Diti and others like them want “is time. We are meeting with Members of Parliament, government ministers, we are meeting with the opposition parties, we are talking to everyone, we are asking that more time be given, because this current law, if passed, would seriously hurt all transgender Indians.”

I ask Sai, what can people outside of India do? We all agree that foreigners calling the Indian Embassy in their country would be helpful. Perhaps saying, “please listen to the transgender community, change the “Transgender Persons [Protection of Rights)” bill to match the Supreme Court’s verdict, and transgender community input.” And, if you’re like me, and like to write, send them a more detailed follow-up message with a letter. India’s government is very protective of its international image, and serious European and North American under-reporting about its misdeeds, breaches of human rights law, and more, undermines international LGBTQ solidarity. For how can we help each other if the need is not known?

Below are Indian Embassy contact details for several countries.

. . .

High Commission of India, India House, Aldwych, London, WC2B 4NA. Working hours: 0915 hours to 1745 hours (Monday to Friday). Telephone Numbers: 02086295950

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Indian Embassy, US, 2107 Massachusetts Ave NW, Washington, DC 20008, USA. Telephone: (202) 939-7000. Fax: (202) 265-4351. Working Days: Monday – Friday Embassy Hours: 930 AM – 600 PM EST

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Indian Embassy, Poland, Address: Myśliwiecka 2, 00-459 Warszawa, Poland. +48 22 540 00 00
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Indian Embassy, France, Address: 13-15 Rue Alfred Dehodencq, 75016 Paris, France. Phone: +33 1 40 50 70 70

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