Posted by Liliana il Graziosco Merlo Turan
A rhetoric that pervades the discourse of transmisogyny and transphobia is how to look into dynamics of attitudes that range from deep rooted systems of prejudices to outright systems of oppression that have systematically oppressed trans persons and gender non conforming persons throughout millennia. And finally what does it manifest into? Brutal annihilation. Yet how does it reach even here in the first place what creates such system that will definitely result in unprecedented annihilation?
To understand the same, it is vital to look into the discourse of transmisogyny within the context of genocide, which is an action that reaches unprecedented levels after placing the target community in serious disadvantage, with no means or recourse to fight against the violence of the oppressors resulting in sheer annihilation. Rafale Lemkin, a lawyer and jurist, briefly identifies genocide with three critical elements.
Firstly, the oppressor group placing the oppressed group in a position of prejudice by shaping societal attitudes against them. Secondly, isolating them further by setting a legal framework in a manner that politically, economically and socially disenfranchises such community, depriving them of their rights and liberties, thus leaving them vulnerable to the third element – violence itself.
The rhetoric of transphobia and transmisogyny manifests in a manner ranging from deep-rooted attitude of prejudice to well sustained systems of oppression, that have systematically oppressed trans persons and gender non-conforming persons throughout millennia, and from there to its final form – brutal annihilation. It has to be understood as one of the most entrenched forms of historic oppression, which have existed for millennia, in order to place the same within the greater context of genocide.
It is important to establish in the beginning that the roots of this rhetoric lie in the greater framework of the patriarchal social layout – the central belief that there exist only two genders – male and female, upholding then the dominance and superiority of the masculine over the feminine. The system of the gender binary perpetuates the flawed idea that gender is immutable, fixed to the genitalia an individual is born with as the sole determining factor on what this gender is. Such is cis- and heteronormativity – setting the world in binary and immutability, refusing then the existence of a spectrum, both of gender in specific and identity in general. Identities diverting from this norm are seen as aberrations, ‘deviants’ to social order.
Those against the staple of cis-heteronormativity are subjects of prejudice, discrimination and ostracisation by the society – viewed thus as inferior in both socio-political contexts and in terms of economic disadvantage, leaving those who are not cisgendered marginalised in the social structure.
Here in India, in particular, it was the pathbreaking efforts of our community against societal forces so adamantly set against us, that led to the achievement of the recognition of our rightful identities in the case of National Legal Services Authority vs Union of India, where the court took cognisance of how trans and genderqueer persons have faced discrimination and ostracisation from the cis-normative society. This, the judgement recognised, was violative of their fundamental rights, vested in them from the Constitution and the 2006 Yogyakarta Principles.
The Supreme Court took cognisance and affirmed the Yogyakarta principles along with recognising the historic inequalities faced by the trans and gender queer community. It essentially laid down that we had the right to decide our self-identified gender, which is our fundamental right. The Central and state governments were thus directed to grant legal recognition of the chosen gender identities such as male, female or third gender.
The right of self-identification was thus vested in individual and seen as integral part of the individual’s existence to identify freely with gender they wanted to. Along with this right the court also imposed the obligation on the state to protect the rights of trans and genderqueer persons – from addressing problems of social stigma, social pressure, dysphoria, to treating them as socially and educationally backward classes of citizens and extending all kinds of reservation in cases of admission in educational institutions and for public appointment including framing various social welfare schemes for their betterment.
Thus, the precedent set in the above case granted legal recognition of trans and gender queer persons before the eyes of law and gave them entitlement to full enjoyment of fundamental rights enshrined in the Constitution, and placing onus on the government to uphold the same.
We further had the landmark case of KS Puttaswamy v Union of India where the Supreme Court in 2017 further held that the choice of one’s gender identity or sexual orientation was outside the purview of scrutiny of the state, and had to be respected. It entitled an individual complete privacy and the right to life with dignity and freedom from state interference regardless of their sexual orientation and gender identity.
In the case of Navtej Singh Johar v Union of India, the Court finally struck down the parts of Section 377 that in particular targeted the members of trans and gender queer community, along with the court observing how it owed an apology for the historical inequality and discrimination faced by the members of the LGBTQIA+ community, which was inherently wrong and this recognition of historical inequality became the binding rationale behind decriminalising portions of Section 377 that criminalised consensual sexual intercourse among consenting adults.
The bill is sheer farce on face for struggle of rights of trans and genderqueer persons as it has systematically entrenched their rights.
These three precedents set an extensive scope of rights or at the very least cleared a pathway to grant an equitable and humane status to trans and genderqueer persons. Two bills passed in the Lok Sabha in July and December, however, have placed the community at a significant disadvantage. These negate whatever rights and freedoms they’ve had since the NALSA judgement. The two bills, if now passed by the Rajya Sabha into legislation, will result in a serious erosion of rights and freedoms of the trans community. Placing now Lemkin’s observations into the context of the two bills, we must look into how greatly the trans community in India is left disenfranchised.
We begin with the The Transgender Persons (Protection of Rights) Bill, 2018, where we find at preliminary reading of bill the thorough and sheer transmisogyny. The bill erodes the concept of self identification by inserting conflicting provisions that contradict one another. Chapter III of the Bill talks of recognition of the identity of transgender persons. Section 4(2) appears to be consonance with NALSA judgement, reading that a person who is recognised as transgender shall have right of self perceived gender identity. But it contradicts the concept of the same right of self-identification as the section then subjects this right to recognition that they (the trans community) are qualified as such.
This is further eroded away as Section 5 mandates the individual to submit an application to the district magistrate in order to be recognised as the gender of their choice, or lack thereof. Further, as seen in Section 6, the Bill forces the person have to be examined by a screening committee, comprising of a chief medical officer, a psychiatrist, the district social welfare officer, a person from the transgender community, and any officer of the appropriate Government to be nominated by that Government, who will have absolute power to decide if such a person can qualify as a transgender or not.
Under Section 7, the District Magistrate shall issue a certificate of identity as a transgender person who will now have freedom of identifying with their preferred gender after being recognised as worthy for being given such right.
The inherent problem here is that it does away with the most vital and crucial component of the right of self identification – the fact that it is autonomous, and is fundamental to the well-being of the individual, as seen in the observation made in the NALSA judgement. Something so fundamental to the identity of the individual cannot be infringed upon by setting arbitrary conditions, ones that in fact lead to dehumanisation, forcing the individual to meet cis and heteronormative biases of the screening committee, who have absolute power to decide one’s gender.
It does away with the freedom of identity by restricting the individual who identifies differently from the gender assigned to them at birth on the basis of their sex, not giving them the recognition of the gender of their choice because they are comfortable in it and yet being categorised as ‘other’. Even after being granted such right therefore – which would be rare – the individual would be identified as transgender yet not with the gender of their choice in their legal documents.
Further, as pointed out in a press release by trans activists, Bittu, Meera, Anindya and Jamal, the Bill is also violative of the right to equality under Article 14 of the constitution, which states that all individuals will be granted equal protection under the law. Section 19(d) of the Bill is blatantly discriminatory as it views crimes committed against trans and genderqueer persons of lesser degree as compared to penalisation of sexual abuse against women in the Indian Penal Code, which ranges from seven years to life imprisonment and death.
Section 19(d) views crimes against transgender persons as less violent and only grants penalty of imprisonment from six months to two years, viewing that such crimes of sexual assault, harassment and abuse are of not serious nature, complicit with cisnormative view that trans persons are the ‘other’ and violence committed on them is not of serious nature. Trans persons face transmisogynistic violence simply for being trans, and section 19(d) is woefully ignorant on the nature of transmisogyny.
Section 13 in entirety creates a dependency of trans and genderqueer individuals on their birth families, placing restrictions on their freedoms to seek safe haven from abusive households unless the Court finds it appropriate to separate an individual from their family, instead of leaving it the free will of individual. As press release points out, it violates the constitutional rights of trans persons to freedom of residence.
This provision does not understand violence in familial homes and rehabilitation centres. The definition of family should also be expanded to legally recognise families of choice, partnership, marriage, friendship and, as per the Committee’s recommendation, like “hijra or aravani community elders, who adopt young transgender children” who provide shelter, medical care, and gender-affirming inheritance and burial norms. It does away with only safe refuge that trans individuals would find, instead confining them to shackles of home.
Lastly there are no provisions in the Bill to allow for reservation for trans persons, as mandated by the NALSA judgement, where the judgement clearly laid the onus on the government to recognise them as a socially and educationally backward class and take steps to pave way for all kinds of reservation in cases of admission in educational institutions and for public appointments.
In entirety, the Bill is a sheer farce in the face of the struggle for the rights of trans and genderqueer persons. It has systematically eroded their rights, placing conditions on them to be recognised as worthy of having right to identify with the gender of their choice, and views them as inferior, dehumanising their identities by not taking transmisogynistic violence seriously.
The two bills represent how the legal framework has been systematically set up to disenfranchise trans and genderqueer persons in economic, social, and political aspects.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill is a further attempt to marginalise the economic agency of trans persons. In the words of Telangana Hijra Transgender Samiti, who are concerned how it criminalises begging – a major source of their livelihood – with imprisonment from ten years up to life term, which adversely affects their sole source of earning a livelihood through ‘badhai’ as last resort in light of the social stigmatisation they face.
On the surface, the Trafficking Bill does nothing but add on to the already existing patchy, fragmented framework of legislations that tackles the crime of human trafficking, as added by Tripti Tandon, an advocate from Lawyers Collective. As pointed further, the Bill has blatantly ignored recommendations of the Supreme Court, in the case of Budhadev Karmaskar v. State of West Bengal where the Court constituted a panel to examine legal issues in relation to: 1) prevention of trafficking, 2) rehabilitation of sex workers who wish to leave sex work, and 3) conditions conducive for sex workers to live with dignity in accordance with the
provisions of Article 21 of the Constitution of India.
The Court-appointed panel looked into several issues pertaining to the above three points and thus finally recommended to adopt community based rehabilitation, that is, alternatives that are not contingent on trafficked women staying in state-run ‘homes’. Another suggestion was to revise laws like the ITPA (Immoral Traffic (Prevention) Act, 1956) so as to distinguish between those coerced into sex work and those who engage in it voluntarily, so that interventions are tailored to those who need them.
Yet, as pointed out by research done by Lawyers Collective, none of these ideas, which emerged from in-depth analysis and multi-stakeholder deliberations, have been taken on board in the Anti Trafficking Bill. While the Ministry of Women and Child Welfare said that they considered the recommendations, none of it is reflected in the Bill. The two Bills represent how the legal framework has now been systematically set up to disenfranchise trans and genderqueer persons in economic, social, and political aspects.
The Bill, under the guise of combating trafficking in section 31, systematically targets trans persons who depend on sex work as source of livelihood as criminals. The Bill is just another aspect of transphobic attempts to control the economic agency of trans persons, denying them of fair and equitable opportunities to earn their livelihood with dignity of their own free will, and also denies them community based aid and support and stigmatises them as criminals, driving them further underground – making them more prone to the violence of trafficking rather than decreasing it.
The two Bills represent how the legal framework has now been systematically set up to disenfranchise trans and genderqueer persons in economic, social, and political aspects. This is sheer transmisogyny, from setting up conditions on the individual to be recognised with their preferred gender identity to blatant denial of livelihood, which they are entitled to. This is nothing but systematic efforts to marginalise us further, and in this process of deeply entrenched ghettoisation, the trans community is left further socially, politically and economically isolated. This will only further leave the trans community to unprecedented violence.
As Lemkin rightly pointed out, this will result in sheer genocide, here, to the trans community. To the cisgender majority out there, your silence with such systematic discrimination is blatant complicity with transmisogyny, only set out to violently assimilate us into the cisnormative world-view and even erase us in the process. This is sheer, brutal erasure and nothing but a grave crime against humanity. In a society so adamantly set forth in cisnormativity, the onus is on cisgender folk to actively protest and combat the systematic oppression meted out to trans and genderqueer persons. To let such legislative disenfranchisement come to fruition is systematic marginalisation. Placed further at a vulnerable position, not stopping this legislation will only pave the way to absolute genocide.
I am Liliana il Graziosco Merlo Turan, an agender trans woman, in third year of law school, pursuing BA LLB Hons, in Bangalore. I am a postmodern feminist committed to the thorough elimination of cisnormativity and the gender binary. I am also an ardent writer, an avid bibliophile, a practitioner of Wicca and quite fond of gardening and baking. An occasional traveler, I love visiting new places and learning keenly about different cultures.
Featured Image Source: Twitter- @ayeesha_rai