Delhi / Kolkata, December 14, 2020: Varta Trust teamed up with Partners for Law in Development (PLD), Delhi, a legal resource group pursuing social justice and equality for women, to organize a webinar titled ‘Transgender Rights in South Asia – Trends, Crises and Opportunities’. It was organized as part of a series of events seeking to contribute to the discourse on gender, sexuality, diversity, inclusion, and, in particular, on going beyond legal rights to achieve social justice for socio-legally marginalized communities.
Excerpts from a report on the webinar proceedings prepared by Debjyoti Ghosh, Jia Mata and Pawan Dhall follow, primarily from sections that summarize the proceedings.
Context: Growing socio-legal recognition of transgender rights in South Asia in recent years has generated hope for a more rights-based and securer future for the transgender communities in the region. However, this process has also been fraught with many challenges and even some setbacks. This has prompted a rethink in the strategies for addressing the concerns of transgender communities in South Asia . . .
PLD is part of a South Asia consortium called Feminist Inquiries into Rights and Equality (FIRE). The consortium has been looking at issues such as underage marriage and sexual violence to see how the over-reliance on criminal laws has disempowered the constituency sought to be benefited. Their endeavour is to push for recognition of restorative, victim-centric remedies and rights, which give voice to the actual proposed beneficiaries of the law. Similarly, Varta Trust, in collaboration with CREA, Delhi and SAATHII, Chennai, has been working to expand queer-friendly legal aid in West Bengal . . .
The webinar had participation from Bangladesh, India, Nepal, Pakistan and Sri Lanka. It focussed on country-wise sharing of what the law is, in the respective countries, regarding transgender identity acceptance; what aspects of the law disappoint, or create obstacles for transgender communities in realizing their rights; and how have governments and other stakeholders reached out to transgender communities during the COVID-19 pandemic.
Bangladesh: Joya Sikder (she / her), LGBT Rights Activist, Shomporker Noya Setu; Ho Chi Minh Islam (she / her), Trans Feminist, Gender and Sexual Rights Activist, and Healthcare Worker.
India: Zainab Patel (she / her), Transgender Rights Activist and Member, National Transgender Council; Mith Mukherjee (he / him), Transgender Rights Activist and Entrepreneur.
Pakistan: Uzma Yaqoob (she / her), Executive Director, Forum for Dignity Initiatives; Aradhiya Khan (she / her), Transgender Rights Activist.
Moderator: Debjyoti Ghosh (he / him), Post Doctoral Researcher with the Department of Sociology, University of Pretoria, South Africa, and Varta Trust Volunteer.
Bangladesh: The policy and legal scenario in Bangladesh with regard to transgender rights in Bangladesh received a boost in November 2013 when the government recognized the Hijras as a third gender community. In 2014, the Ministry of Social Welfare came forth with a proposal for Hijra community development. Most recently, in November 2020, there was a government announcement on inheritance rights for transgender people in Bangladesh. But what is still missing is a comprehensive policy or law on transgender issues.
Moreover, there is no government recognition for transgender persons who do not identify as Hijra or third gender, and there are differences within the transgender communities in this regard. Even the government has been talking about ‘medical tests’ to identify ‘real’ and ‘fake’ transgender persons. Civil society work with the transgender communities is by and large not rights-based and this also seems to have been reflected in the slow and inadequate provision of relief for the communities during the coronavirus pandemic. Transgender people in the country often have to travel to India to access hormone therapy.
A dialogue has begun with the help of organizations like BLAST to bring about clarity on transgender identities and concerns through a comprehensive legislation.
India: The transgender rights movements in India experienced a significant step forward with the NALSA judgement issued by the Supreme Court of India in April 2014 (National Legal Services Authority Vs. Union of India & Others). This verdict affirmed one’s right to gender self-identification and provided legal recognition for persons who fall outside the male-female gender binary, including persons who identify as ‘third gender’. It took many years of persistent advocacy and protest before a legislation fell into place to implement the directives mentioned in the verdict. The Transgender Persons (Protection of Rights) Act, 2019, was passed with the stated objective of protecting the rights of transgender people and promoting their welfare. But, among other problems, it mandated a screening process for transgender individuals seeking a legal gender identity change. This went against the NALSA verdict.
After further advocacy, the Ministry of Social Justice and Empowerment, the focal ministry to look at the concerns of transgender communities, published the rules and regulations for the Act in September 2020 taking into account community inputs to dilute the requirement for medical screening for legal gender identity change. Beyond this Act though many states in India still have punitive laws that are used selectively against transgender people, like laws against beggary, obscene behaviour, immoral trafficking, and various Police Acts. Fortunately, in August 2018, the Delhi High Court passed a verdict that decriminalized begging in India’s capital.
There are other multiple pieces of legislative and judicial reforms in process brought about by specific litigation from within the transgender communities. There has also been the formation of the National Transgender Council, and state based transgender welfare boards. Officially, all the identity documents have the option of gender self-identification, giving the choice of male, female, other / third gender / transgender. But it is open to question how accessible these options are without showing some external / official marker of a transgender identity. Conflation between transgender, third gender and Hijra is common in India as well. Ground level realities still do not reflect equal rights for transgender people.
Government provision of relief to transgender people during the coronavirus pandemic has been inadequate. Issues of loss of housing and livelihood, impact on mental health, and family violence remain poorly addressed. But community members and their allies contributed significantly to relief work during the pandemic.
Nepal: In Nepal, despite media representations of the law being progressive, transgender rights are yet to be fully achieved, with the current rights’ focus being on people who identify with the third gender category (similar to Bangladesh). In 2007, the Supreme Court of Nepal ordered the government to recognize the identity of third gender people, repeal all the laws that discriminate against them, and to provide citizenship cards to them clearly mentioning their third gender identity (in Sunil Babu Pant Vs. Government of Nepal & Others).
However, the National Identity Card and Vital Registration Act, 2076 BS; Nepal Citizenship Act, 2063 BS; Nepal Citizenship (First Amendment) Rules, 2063 BS; Correction of Age, Name and Surname Rules, 2017; and a directive on the operation and management of secondary level education (2068 BS) only allow name changes in the case of any minor spelling errors or addition / removal of a middle name. None of these laws allow a change of gender.
Following the 2007 order, the government started giving out citizenship cards with an ‘other’ gender option. However, a medical certification is required, despite a 2017 Supreme Court decision against it (Aanik Rana & Others Vs. Government of Nepal). Also, till the other laws are changed, transgender people cannot apply for a name change. Passports issued under the ‘other’ gender category are not machine-readable, which creates travel delays. Moreover, the third gender category is often used to conflate all sexual and gender identities.
Pakistan: In Pakistan, transgender rights have made progress through the Transgender Persons (Protection of Rights) Act, 2018. But in matters of the right to vote and hold public office, transgender inclusion precedes this Act. The Election Reform Act of 2017 had already guaranteed these rights. On its part, the 2018 Act has ensured availability of free computerised national identity cards to transgender persons in their desired gender identity. Its impact has been felt on the education sector, which has seen the formulation of non-discrimination policies in provinces like Punjab. The Sindh province is implementing a comprehensive policy for transgender persons, including gender affirmative care services and an old age home for elderly transgender persons. However, there are no uniform notified rules for implementing the Act and so the implementation differs from province to province.
Ease of access to the benefits under the law often depends on class, education and family acceptance. There is still uncertainty for the grassroots communities, especially transgender women married to cisgender women. Continued sensitization of law enforcement personnel is crucial as they often deny services to transgender persons and commit rampant abuse against them.
Provision of relief to transgender persons during the coronavirus pandemic was a mixed bag. While they did receive rations and sanitation kits from the government, availability of hormone therapy was badly affected. Poor financial inclusion meant that the flow of donations to transgender persons was also affected.
Sri Lanka: Transgender people in Sri Lanka continue to be criminalized under the British-era Section 365 and Section 399 of the Sri Lanka Penal Code. While Section 365 criminalizes same-sex sexual acts, Section 399 criminalizes gender impersonation and is often used against transgender persons to harass and penalize them. The government has failed to act on proposals for decriminalization more than once in the Parliament. However, in a positive turn of events in June 2016, sustained advocacy by transgender community members and activists led to the Ministry of Health, Nutrition and Indigenous Medicine issuing guidelines, criteria and specific processes for gender affirmative care services and issuing of gender recognition certificates that can help change gender markers in all official documents, including the national identity card.
On the flip side, the benefits of this development have not reached the rural areas because of a lack of healthcare and legal aid service providers. The health sector continues to be largely transphobic. Tamil communities have not seen the same progress on transgender issues as in the other parts of the country.
During the coronavirus pandemic, the government made ‘family’ as the unit for provision of relief. This left out numerous transgender people who do not live with their natal families. Fortunately, civil society stepped forward to address this gap.