Which way home for transgender minors?

Asha (name anonymized) is a 17-year-old transgender girl and an orphan. She was six when she lost her parents. She and her younger brother were living with their grandparents in Habra, North 24 Parganas district of West Bengal, when her maternal aunt and uncle brought them over to live with them in neighbouring Ashoknagar. Her brother was admitted to a home for orphans, while Asha continued to live with her aunt, uncle and cousin brother.

Trouble began as Asha grew older and started presenting a non-conforming gender expression. She was subject to regular physical and mental violence by her family. Prior to the onset of the coronavirus pandemic, she was working and in lieu of the money she brought into the family, she was provided food and shelter. However, her work and earnings came to a halt on account of the pandemic. On July 1, 2020, at around 3.30 pm, Asha’s aunt, uncle and cousin brother beat her with an iron rod, and on the morning of July 3, 2020, kicked her out of the house.

An extract from the complaint filed by Asha at the Ashoknagar Police Station on July 3, 2020. In the extract, Asha describes how her maternal aunt, uncle and cousin brother beat her up violently and evicted her from her home (presentation stylized to increase clarity of visual)

On the same day, Asha got in touch with Varta Trustee Madhuja Nandi. Madhuja accompanied Asha to the Ashoknagar State General Hospital. The medical report issued by the hospital shows that Asha was subject to physical assault and that she sustained injuries on her feet and back. Madhuja accompanied Asha to the Ashoknagar Police Station and assisted her in writing a letter to the Chief Inspector of Police wherein she detailed the facts of her case. The police merely registered a General Diary entry and sent her back to her aunt and uncle’s house, where she was subject to further violence through the night. She subsequently returned to the police station, where she remained for a period of two days (in the child-friendly corner of the police station).

In this period, the police, Childline, Child Welfare Committee (CWC) of North 24 Parganas district, and West Bengal State Commission for Protection of Child Rights (WBSCPCR) were not able to identify a safe shelter for Asha. Initially, Madhuja was informed that Asha could only be accommodated in a shelter home for boys. But this would have put Asha in a huge risk of harassment or even assault. Madhuja and her fellow queer activists also sent out several requests for help in identifying a suitable shelter for Asha. Eventually, with other NGOs also helping out, the WBSCPCR was able to locate the Ramakrishna Vivekananda Mission for orphans in Barrackpore as a suitable option. Asha is now living there in a separate room. Madhuja continues to be in touch with Asha to provide her emotional support and help out with other necessities. But Asha’s future course of action, when she becomes an adult, remains uncertain.

Asha’s case raises several issues for consideration at the policy and legal level, particularly concerning the rights of transgender persons who are minors (more broadly, gender variant children). Further, it throws light on how the Transgender Persons (Protection of Rights) Act, 2019 (henceforth Transgender Rights Act) fails to protect the rights of transgender persons, including those of minors.

Transgender Rights Act limits the right of transgender minors to chosen gender identity

The Transgender Rights Act has been vehemently critiqued by the transgender communities for its various shortcomings, and its constitutionality is currently being challenged in the Supreme Court of India. Some of the contested provisions of the Act fall under Chapter III, which deals with the ‘recognition of identity of transgender persons’. The Act, by subjecting the right to self-identified gender to a screening procedure, dilutes such right and deviates from the Supreme Court’s NALSA judgement in this regard. More on the shortcomings of the Act can be accessed here, here and here.

Asha’s case specifically demonstrates the failure of the Act when it comes to minors. The proviso to Section 5 of Chapter III stipulates that in the case of a minor the application for issuance of a certificate of gender identity can only be made by the parents or guardians of the minor. By doing so, the provision restricts the autonomy of minors by subjecting their right to self-identified gender to the discretion of their parents or guardians.

Second, the Act fails to recognize that families are often sites of violence for transgender minors. Asha’s guardians, namely her maternal aunt and uncle, were the perpetrators of violence in her case. To vest the exercise of the right to self-identified gender in the hands of parents or guardians ends up truncating the right to chosen gender identity for transgender minors.

Right to residence fails to recognize violence by families

Section 12 (Chapter V) of the Transgender Rights Act deals with the ‘right to residence’ – it prohibits the separation of a transgender child from parents or immediate family unless ordered by a court. This provision fails to account for the lived realities of transgender persons, including minors, who are often subject to violence by their families, and who may often leave their home to escape such violence. Asha’s case clearly illustrates this concern.

Further, by mandating imprisonment for a person who “forces or causes a transgender person to leave household, village or other place of residence”, the Act exposes those individuals who help transgender persons (including minors) escape violent families to criminal penalty.

West Bengal state needs to introduce measures to address concerns of transgender minors

Though Asha identified as a girl, the state government authorities were not able to place her in a shelter meant for girls. The Juvenile Justice (Care and Protection) Act, 2015 (henceforth JJ Act), which lays down the law for children in need of care and protection, places a duty on the CWC concerned to account for the appropriate rehabilitation needs as well as the gender identity of the concerned child when taking decisions regarding their care and protection, including the institution in which the child should be placed.

The NALSA judgement also explicitly recognized the right of transgender persons to their self-identified gender identity. It did not at any point make an exception for transgender minors.

These laws and verdicts give the CWC considerable discretion in taking decisions that are tailored to the individual needs and interests of the child. In Asha’s case, the CWC could have placed her in a girl’s shelter as she identified as a girl. But they seemed to have centred the sex and consequently the gender assigned at birth to Asha in determining which shelter she should be placed in.

The government of West Bengal, in partnership with the transgender communities, must critically assess the appropriateness of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2017, which continue to operate on the binary of male and female. If these rules could be made transgender-inclusive, various government authorities and civil society agencies would be further empowered to address the specific concerns of transgender minors in crisis situations. Shelters meant specifically for transgender minors could be another aspect to explore and act on together.

The government also needs to organize awareness and sensitization sessions on transgender issues for officials involved in child rights work, including judges and social workers. These sessions should be designed and administered by members of the transgender communities who are best placed to inform these conversations.

West Bengal has some of the most vigorous transgender rights and child rights movements in India. The state government and various district administrations also have been responsive to the needs of transgender persons in the state, including during the coronavirus pandemic and lockdown. A government-civil society partnership could help make the most out of the current policies and laws that influence transgender lives in West Bengal (and India) and then also address the limitations in these policies and laws to improve them over time.