Diksha Sanyal makes a strong case for judicial intervention to ensure health facilities honour apex court verdict on transgender rights

An occurrence in the Chinsurah District Hospital in West Bengal on January 29, 2017 was a strong reminder of how little has changed for transgender persons since April 15, 2014. That was the day of the momentous verdict by the Honourable Supreme Court of India in National Legal Services Authority (NALSA) Versus Union of India and Others.

A trans woman who was injured in an accident was almost refused admission because the hospital authorities were grossly unaware of how to handle, admit and treat her. The usual confusion as to her having a ‘male name’ on her identity card and therefore which ward to admit her to prevented her from accessing immediate medical attention. Though she eventually was admitted into the female ward of the hospital, it was not before she had undergone a fair share of mental harassment and trauma.

Such incidents occur with frequent impunity all over India, yet are rarely documented or written about. There is no accountability and seldom any redress. In fact, these incidents are tantamount to systemic discrimination against trans persons and are in blatant disregard of not one, but two Supreme Court rulings. They violate the right to equality as well as the right to health embodied in Articles 14 and 21, respectively, of the Indian Constitution.

This is a graphic – a black and white sketch on paper – that provides a stylized depiction of the symbols of justice (set of scales), medicine (two snakes winding around a winged staff), and transgender identity (merging of the male and female symbols of Mars and Venus around a single ring). In the sketch, this ring with the male and female symbols encircles an androgynous figure depicting a transgender person (more like a trans woman). The person has a dejected look on their face and is draped in a single piece of cloth. The person’s hands are raised above their head, tied in a chain, while a stethoscope circles their neck in a strangling manner. Two snakes arise from behind and above the person with fangs and forked tongue visible; poised as if to strike the person. There is a broken pair of scales on top. There is also a large pair of scissors behind the person’s waist, positioned as if to cut their flowing hair. A bandage, syringe and bottles of medicine litter the floor where the person is standing. Artwork credit: Shubhrajit Roy.

Black and white sketch on paper – a stylized depiction of the symbols of justice (set of scales), medicine (two snakes winding around a winged staff), and transgender identity (merging of the male and female symbols of Mars and Venus around a single ring). Artwork credit Shubhrajit Roy

A case of systemic discrimination: Chances are any person with a non-normative gender identity or expression will be systemically discriminated against and prevented from accessing health care services. Not only are they subject to the ignorance, prejudice, harassment, verbal and physical abuse of health care providers, in many cases, their right to privacy and confidentiality is also not respected.

A major barrier is the strictly sex-segregated categories of men and women’s health care. This begins at the stage of gender identification markers on the identity cards. Often having a gender on one’s identity card that does not match with one’s outward appearance is a reason for denial of access to services. In many situations, some identity cards may have been altered to reflect one’s desired gender identity, but not others. This mismatch again becomes a cause for denial of access.

Identifying as ‘transgender’, ‘trans man’ or ‘trans woman’ also raises uncomfortable questions of which toilets such persons can use and which wards should they be admitted into. In addition, it complicates the notion of male and female-specific medical attention.

According to a discussion paper published by the United Nations Development Programme in 2013 on trans health and human rights, “Many trans people do not fit easily within the sex-segregated categories of women’s and men’s health conditions. For example, trans women may require prostate examinations and some trans men still require cervical smears. Trans people have died after being denied access to such services. After an American trans man died from ovarian cancer, the Feminist Women’s Health Center in Atlanta extended its services to trans men . . .” Sensitization of all health care providers to trans issues is needed, and it must account for these realities.

Another area that requires critical attention is HIV intervention. One of the directions in the Supreme Court’s NALSA judgment mandated the central and state governments to operate separate HIV sero-surveillance centres for Hijras. Such separate centres are crucial when one considers the larger context of social exclusion and economic marginalization faced by Hijras, which often prevent them from accessing health care. Further, trans sex workers are even more vulnerable, marginalized also within the larger pool of sex workers and therefore less likely to be able to avail health facilities.

Many trans persons wish to surgically transition from one sex to another (which is part of a larger process of feminization or masculinization). However, these services are prohibitively expensive in private hospitals. And in Kolkata at least, government hospitals don’t seem to provide these services. Further, there is no established India-specific protocol that has been framed by either the Medical Council of India or any state health department for guiding doctors on how to go about the complicated process of sexual reassignment surgery.

Photograph shows scores of people sitting and waiting on the open stairs leading up to the Kolkata Medical College & Hospital building. A few are standing around. A blue, red and white signage on the entrance to the building says “M. S. Life Drug House – Chemists & Druggists”. It also says (in Bengali) that this is a fair price medicine shop (similar signage on either side says the same thing in English and Hindi). It is a day time photograph. The building, built in a neo-classical style of architecture in the mid 19th century by the British, is painted in white with gold linings on the roof and elsewhere. In the foreground are a couple of trees. Photo credit: Dr. Shaoni Sanyal.

On the question of law: It is interesting to note that the harassment and discrimination faced by the trans woman in Chinsurah was eerily similar to the facts of the case of the first judicial verdict in India that recognized the right to health as a facet of the right to life under Article 21. In Paschim Banga Khet Samity Versus State of West Bengal (1996), the Supreme Court ruled that government hospitals denying any person access to emergency health care violated the right to life. Lack of available resources could not be used as an excuse to deny an individual access to health care in emergency situations.

Though in the Chinsurah case the argument was not one of a lack of resources, after the Supreme Court NALSA judgment, which recognized the right to gender identity as an integral part of the dignity of an individual, the hospital’s actions were blatantly discriminatory and violated the right to equality. Moreover not having any protocol in place to deal with trans patients violated the right to health.

In India, unlike the justiciable Fundamental Right to Education, we don’t have a similar right to health. Responding to these lacunae, over the years, the Supreme Court has read the right to health as a facet of the Fundamental Right to Life.

Though the jurisprudence on the right to health may not be uniform or consistent throughout the years, it does cast a certain obligation on State actors. In the Paschim Banga case, the Supreme Court was proactive in constituting a commission to inquire into the incident. The commission concluded that there had been a series of administrative failures at each of the hospitals which resulted in a denial of treatment to the petitioners, and set out recommendations to avoid a recurrence of such failures in the future.

The Supreme Court accepted the commission’s findings and held that they amounted to a violation of the right to health of the petitioners under Article 21, and awarded compensation of an amount that exceeded their expenses at the private hospital involved in the matter. The court also ordered the creation of new systems and facilities, including a centralized communication and ambulance system for transporting patients between hospitals.
Such cases show that the courts have in the past stepped in where there were no established protocols, policies or frameworks to pressure the executive into taking some tangible action for the realization of the right to health. Through their directions the courts occasionally try to put in place systems and facilities that, if enforced, can have a long-term beneficial impact.

More recently, in 2014, the Delhi High Court pronounced a progressive judgment in Mohd. Ahmed Minor Versus Union of India, which was a writ petition filed by a minor demanding affordable medical attention for a rare and chronic disease he was suffering from. Being poor, he could not afford the cost of such treatment. The Delhi High Court broke new ground with its emphatic holding that “core obligations under the right to health are non-derogable”.

In so holding, the Delhi High Court explicitly endorsed the ‘minimum core standard’ in international law.  This doctrine, developed as a part of the jurisprudence on the right to health guaranteed in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), was meant to evaluate State action against a minimal standard benchmark.

Quote: The fact that despite three years after the Supreme Court NALSA verdict, the central and state governments have not taken 'any' steps to make health care services more accessible for trans persons, either in the form of executive guidelines, rules or policies, is a clear indication that they are in contempt of the Supreme Court’s verdict as well as their obligations under Article 21 of the Constitution.The quality of State intervention is often measured against the principles of ‘availability’, ‘accessibility’, ‘acceptability’ and ‘quality’. Of these, the principle of accessibility is the most important in the present context since it recognizes the principle of non-discrimination. This is a basic, non-derogable principle that merely requires that whatever health care facilities exist, they must be made equally accessible to all groups regardless of race, gender, religion or any other prohibited grounds of discrimination. Accessibility also recognizes economic accessibility or affordability for all – including socially marginalized groups.

In the Mohd. Ahmed case, the court went beyond the mandate and scope of the minimum core obligation as understood in international law to impose a resource obligation on the State in an extremely rare medical situation. The court held that “No government can wriggle out of its core obligation of ensuring the right of access to health facilities for vulnerable and marginalized sections of society like the petitioner by stating that it cannot afford to provide treatment for rare and chronic diseases.”

Given this progressive attitude of the court, it becomes possible to argue that under the ICESCR’s right to health, India has an obligation, at the very least, to ensure equality in accessing basic health care services for trans persons in public hospitals. This will require a protocol or executive guideline to be framed, which develops a uniform practice in admitting trans patients as well as ensuring that they have access to proper wards and toilets within these hospitals.

The fact that despite three years after the Supreme Court NALSA verdict, the central and state governments have not taken any steps to make health care services more accessible for trans persons, either in the form of executive guidelines, rules or policies, is a clear indication that they are in contempt of the Supreme Court’s verdict as well as their obligations under Article 21 of the Constitution, read with the ICESCR, to which India is a State party.

There is an urgent need for the courts to step in again and hold State actors up to scrutiny. This will also provide an opportunity to the State to initiate a much needed dialogue with community members and democratize the process of law and policy making.

Photo credits: Dr. Shaoni Sanyal (photographs are representative in nature; they show the oldest building in the Kolkata Medical College & Hospital campus, built in a neo-classical style in the mid 19th century).