Report on the Symposium on Legal Support for Accessing Transgender Rights
On 15 April 2014, the Supreme Court passed a landmark judgment in the case of National Legal Services Authority vs. Union of India (hereafter referred to as the NALSA Judgment) in relation to transgender rights. The judgment was profound in that it provided legal recognition to transgender people by accepting them as a third category of gender and thus forgoing the binary gender system of male and female. The order laid down the principle of the right to self-determination of gender, by giving preference to psychological test over biological test, and thereof recognition in the law. It also placed obligations on the Central and State Government with the aim of creating a political and legal environment that would allow transgender persons and ‘sexual minorities’ access to their rights and to reach their full potential. It would provide them with education, healthcare, housing, livelihood and in effect, their dignity.
However, after four years since passing of this judgment, little has been done to uphold its spirit on the part of State and Central Governments. Moreover, in practice, this judgment has proved to be extremely confusing and lacking in many areas. In the 130-page judgment, there was no mention of the following words: FTM (Female to Male), MTF (Male to Female), Transwoman, Transman, Intergender, Bhaiya, Babu, Kotha, FTK (Female to Kotha), Thirunambi, Genderqueer, Gandabasaka. In some parts of the judgment, it even seems to conflate transgender people with inter sex people. The judgment calls on the transgender community to be considered ‘socially and economically backward’ so that the transgender persons can avail the few benefits provided to other backward communities. This clubbing of caste based discrimination (considering the similarities to legislation surrounding Scheduled Castes and Tribes) and gender based discrimination excludes the deep rooted problems faced by both communities. The issue of sexual intercourse, though given a perfunctory glance, was not looked deep into. This judgment did not talk about the importance of sexual relations for persons in enjoying a dignified and meaningful life. The language also deems transgender people to be “not normal” in the very first line, thus compounding the social stigma and subsequent psychological problems faced by them.
On February 14, 2018, HRLN, Delhi, organised a meeting to deliberate on the above mentioned issues, with the following objectives:
a) To review the loopholes of the NALSA v. Union of India (2014) judgment of the Supreme Court. (Exclusion of various categories of Transgender, language of the judgment, categorisation of transgender persons as socially and economically backward community, sexual rights of the transgender persons.)
b) To discuss and identify the immediate services those are necessary for the transgender persons. (Mental and physical health services i.e. health cards, separate toilets, reservation for the transgender persons in public and private spheres.)
c) To discuss the few breakthrough initiatives were taken up by some states, in the midst of all the judgments and introduction of the bills, giving more power to the struggle.
d) To recognise the oscillating nature of the judiciary and the government who have not provided a significant response to the demands of the community. (Provisions to be included in the review petition of NALSA judgment, services that should be mandated for the transgender persons.)
e) Involvement of HRLN in filing petitions in Both High Courts and Supreme Court
f) Prepare a plan of action for 2018 ?
Read the full report attached.