Trans Indians Are Making It Easier to Be Themselves – Despite the Supreme Court

At first glance, Kiran looks like a man much younger than his 27 years. He lives in Bangalore, India, with Kavya, 26, a cheerful and determined woman. Hailing from agricultural families, the two had met as students in their hometown in Warangal district in Andhra Pradesh, the largest southern Indian state. It wasn’t safe for them to stay close to their families, however, because Kiran was born as a girl.

In addition to being female-to-male transgender, Kiran is an Adivasi, a member of a marginalized indigenous community. The numerous types of Adivasis are so low on the Indian caste hierarchy as to barely figure into it at all; very few Adivasis have the resources to gain higher education. On top of all that, Kiran is only able to move around independently thanks to a wheelchair donated by well-wishers.

The anonymity of a city like Bangalore, at least, offers Indian gender minorities a little more safety than they might otherwise have. Many experience physical and mental torture in their households, neighborhoods, schools and workplaces. Some undergo forced marriage, exorcism and ostracization. It is common for them to have to leave home, beg, do sex work, and live on the streets near public restrooms or bus or train stations. They have trouble renting rooms or getting jobs because of the social stigma against them, leaving them without a permanent address for identification documents like voting and ration cards.

Legal Discrimination Upheld

Indian police, meanwhile, have long victimized gender minorities by exploiting section 377 of the Indian Penal Code, a colonial law criminalizing what it calls “men who have sex with men” and other homosexuals. Police have used it as an excuse to harass, assault and rape, as well as to justify raids on events organized by gender minority groups. The law has also obstructed effective HIV/AIDS interventions by having a chilling effect on honest discussion about sexual habits.

Attempts to put an end to the law seemed to have been making progress, albeit slowly. The Naz Foundation, a Delhi-based non-profit focused on preventing the spread of HIV/AIDS, filed a lawsuit against section 377 to the Delhi High Court in September 2001. Finally, on July 2, 2009, Justice A.P. Shah of the Delhi High Court ruled against the law. The ruling was effective across India, though it soon faced appeals from opponents on moral and religious grounds.

“The sensitivity of Justice Shah, famous for his progressive judgments, helped restore gender minorities’ rights, partly,” said Manohar Elavarthi, a human-rights activist who co-founded Sangama, a non-profit organization in Bangalore that champions gender minorities’ and sex workers’ rights. “However, regressive, patriarchal mindsets remain entrenched in the Indian judiciary.”

According to Siddharth Narrain, a legal researcher in Bangalore, the Naz judgment still did not substantially help transgender people — such as male-to-female Hijras, a traditionally recognized identity group. He pointed to the government’s failures to enforce laws and to encourage Indian society to take a more inclusive attitude. In 2011, for instance, a local government permitted police to register gender minorities for suspected “unnatural” offences — using the derogatory term “eunuch” — and the policy is still in place despite attempts to challenge it.

Today, the Supreme Court declared section 377 of the Indian Penal Code constitutionally valid, setting aside the July 2009 Delhi High Court verdict. Pronouncing this decision on his last day in court, Justice G.S. Singhvi said that the Parliament of India could legislate on this matter as it wished — but disappointing gender minorities in India and their allies worldwide.

Organizing for Survival

Elavarthi originally helped organize a collective to support gender minorities called Sabrang in 1997 along with lawyers, civil liberties activists and writers in Bangalore. Through film screenings, discussions and investigations of violence against gender minorities, the collective highlighted challenges that the lesbian, gay, bisexual, transgender, intersex and queer communities face.

By the end of the 1990s, Sabrang was on the decline, and Vividha, an organization of working-class gender minorities and their allies, emerged in Bangalore. Vividha members regularly discussed their problems and supported each other. Meanwhile, Elavarthi co-founded another group called Sangama, initially to help inform gender minorities about their basic rights and entitlements. Sangama and Vividha began counseling gender minorities in and around Bangalore, where they faced forced marriage, “corrective” measures and police assaults. Sangama also opened drop-in centers to assist people with HIV/AIDS treatment and prevention, personal counseling and more.

Between 2003 and 2004, Vividha and Sangama organized rallies of several hundred people from gender minority groups and their allies for humane treatment. Appeals to the police and government representatives proved fruitful. Three hundred Vividha members contributed their earnings from begging and sex work for events like the Hijra Habba festival in 2003 and 2004. Then, in 2006, groups in the Karnataka region pressured the National AIDS Control Organization to mandate the dignified treatment of Indian gender minorities in its policies.

Gender minority activists joined forces with other movements working for the rights of Dalits, Adivasis, women, and the poor, and in some cases these groups found common cause, despite their differences. These marginalized groups have been campaigning together, for instance, for land ownership rights; the prosecution and punishment of perpetrators of violence against them; support for those displaced by riots, natural disasters, industrial accidents and slum demolitions; and the implementation of social entitlement schemes and benefits. By organizing jointly, these groups hope to increase their capacity to be effective when fighting for their own issues.

Gender minority rights defenders have sought dialogue with religious and political leaders, as well as health care professionals, to garner visibility for their cause. Additionally, targeted affirmative action by the Tamil Nadu and Karnataka state governments, Pride marches, queer film festivals, and positive news stories have united gender minorities and their allies across many divides.

Judicial Indecision

Gender minority couples facing challenges like Kiran and Kavya feel confident that public opinion is shifting. “Timely external support strengthened our spirit,” Kavya said. She even adds, “Our families have accepted us, presently.”

Trained in leadership and communication, Kiran is a community activist with the Karnataka Sexual Minorities Forum, which financially assists gender minorities in Chikballapur, near Bangalore, in accessing social entitlements. Kavya is an accountant for Samara, a Karnataka-based organization of gender minorities.

The Indian state and society has yet to honor the constitutional and social ideals that will ensure the welfare of Kiran and those in similar situations. The Supreme Court of India’s upholding of section 377 of the Indian Penal Code stands in contrast with another decision on October 29, when the court reserved judgment on a suit seeking equal rights and protection for the transgender community, thus establishing a third category for recording one’s gender on passports, driving licenses, and school and hospital admission forms. These steps send mixed messages to gender minorities, but their fight for survival and acceptance is only beginning.