‘The government has double standards on rights of the transgender community’ Head to Head

Adding to a growing list, a new petition submitted to the Supreme Court challenges Section 377 of the Indian Penal Code that makes homosexuality a criminal offence punishable with a sentence of up to 10 years.Filed by Bengaluru-based human rights activists UMI UMESH and AKKAI PADMASHALI, it highlights the concern of the transgender community: their sexual orientation is criminalised under Section 377, though there is legal recognition of their gender identity after the National Legal Services Authority, or NALSA, judgment of 2014. Padmashali, a transgender person and activist, tells Nikita Puri about the situation. Excerpts: What does your petition say? We have challenged Section 377 on the grounds of the NALSA judgement in context of fundamental rights and equality. The judgment showed that the Supreme Court recognises the right to determine and express one’s gender, and though its judgment spoke about prohibiting discrimination on the ground of gender identity, it didn’t speak about the violations happening under the existing Section 377.The petition says that in case of transgender persons, their gender identity may not be the same as their biological sex; one’s gender identity is not limited to one’s biological sex. Hence, if transgender persons were to have intercourse with their partners, the same would fall foul of Section 377 and would amount to a criminal offence.

Many think that transgender people are asexual, which is untrue. The discussion and idea that the transgender community also has a sexual orientation hasn’t been taken up till now. Sometimes, parliamentarians and legislators totally reject the subject of sexuality, but we have great faith in the judiciary; it has particularly got people thinking about transgender issues. I am happy that the Supreme Court of India heard our petition; it has now been referred to the chief justice. He has progressive views, let’s see what happens. You’ve played a role in having the word ‘eunuch’ replaced in Section 36 (A) of the Karnataka Police Act. Would you consider that a victory? The section 36(A) titled ‘power to regulate eunuchs’ allows police to maintain a diary of transgender persons suspected of kidnapping children, or committing any unnatural offence, thus singling us out. The amendment is a violation of the Delhi High Court’s rule that keeps consenting adults out of the purview of unnatural offences.

While the word ‘eunuch’ has been deleted from Section 36 (A), the Section as such remains. So just removing the word “eunuch” isn’t actually a relief. We will continue our efforts to get the authorities to delete the entire section which singles out the transgender community. The Transgender Persons (Protection of Rights) Bill, 2016, is slated to come up for discussion in the Lok Sabha. The Bill is expected to protect rights of the transgender community but doesn’t talk about subjects such as marriage or adoption. I suspect that the government has double standards when it comes to the rights and protection of the transgender community. In the recent meeting of the UN Human Rights Council to establish an independent expert on Sexual Orientation and Gender Identity, India took a neutral stand by abstaining. This feels like the government is not aware of the issues we face. It can’t play with people’s lives — it can’t play with people’s sexual orientations, it can’t play with people’s identities. We feel sad about the government’s stand — how can it be neutral about this? We are the largest democracy in the world and across the globe people are looking at India’s actions. When the entire world is heading in one direction and being progressive, why is India going in the other direction? The Protection Bill just seems to be an eyewash. On June 29, a similar petition was filed against Section 377 by prominent people like Navtej Singh Johar, Sunil Mehra and Ritu Dalmia. Are more and more people coming out to demand their rights? There’s a history of lack of freedom of mobility and lack of freedom in public places that minorities face because of Section 377. If you look at records, you’ll find that transgender people are arrested in large numbers. As long as Section 377 exists, we, the people of the working community, are the ones who will be targeted. Filing petitions is a way of protesting against the state and though people from the mainstream have also come forward to show support, what we need is a complete change in discourse.

When the entire world is heading in one direction and being progressive, why is India going in the other direction?

Even if Section 377 is declared unconstitutional, do you think it’ll bring about a change in mindset? Legal backing does help, but that in itself may not solely bring about a change. We still have a long way to go when it comes to educating people about sexuality. The NALSA judgment has spoken about treating everyone as equal citizens of India, and still the transgender community is not free in public places and does not have equal access to public facilities, like toilets. That’s the situation we are living in. If the apex court sets a precedent like the NALSA judgment, it’ll go a long way in the fight for human rights.