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Extreme discrimination, harassment amidst pandemic: New transgender law failure?

By Adithi Das*

The Covid-19 pandemic has caused hardships among people, and even more so, for the most marginalised groups in the society. At a time when even the more privileged groups began scouring stores for food and medicines, one could realize the plight of the transgender community seeking rations and medicines only to face discrimination and harassment.
As always, shopkeepers sent them away saying the virus cannot get to them. Trans persons are often humiliated when they ask for basic health services in the country, and this has gotten worse during the lockdowns imposed to contain the spread of the virus.
As the country went under lockdown, the city-dwelling, college-educated, office-going workforces began switching to the virtual modes of working, and the country saw an unprecedented spike in the sale and use of remote working tools. But when one looks at the possibility of remote work for transsexual persons, one would be dismayed and appalled at the number of possibilities that really exist for the community.
Most trans-persons being engaged in begging and sex work have experienced extreme adversity and complete loss of livelihoods during the lockdown, says Pushpa Achanta of the Solidarity Foundation, an NGO that works with sex workers and sexual minorities in Bangalore.
Even worse outcomes of the lockdown have been when trans persons availing HRT drugs during transitioning and other minorities availing ART medicines for HIV treatment were denied access to these very essential commodities, notwithstanding the fact that the prices of these have skyrocketed since the early 2000s and become prohibitively high during the lockdown.
Perhaps, this is the result of lack of affirmative action in the Transgender Persons (Protection of Rights) Act, 2019. The Act has been continually criticised and challenged by activists and lawyers for the numerous discriminatory clauses it contains which are violative of the fundamental rights guaranteed by the Constitution such as: 
  • For transgender persons to change their gender, the Transgender Persons Act enforces the need for a Sex Reassignment Surgery (SRS) in order to change their gender identity to their preferred gender of either male or female. Moreover, the validity of the SRS is decided by the District Magistrate.
  • The Act places restriction on movement with regard to trans persons in separating from their parents and allowing a person to move out only through an order of ‘a competent court’. This has led to division of the community on class lines with only those being able to access the court even having a chance at separating from their family. With widespread discrimination and violence that they face from their immediate family and relatives, moving out of the family has been the need of a large number of trans persons. 
  • Section 18(d)- This section criminalizes violence against transgender persons, but has been reproduced without any changes from previous drafts. In fact, any kind of violence, as much as that which would endanger a trans person’s life is punished by a term of a maximum of 2 years. Sexual abuse rampant against trans persons is also included within the same section. This is in stark contrast to provisions in the IPC that subject rape offence against women to a maximum term of seven years. 
More appalling is the lacklustre state of affairs in terms of affirmative action to provide dignity and equality to the community. A press release by transgender, gender non-conforming and intersex rights activists protesting the passing of the bill in the Jantar Mantar, says, that the Transgender Persons Act 2019 denies reservations and affirmative action for trans, intersex and gender nonconforming people in employment, education, and healthcare.
The provisions of the Act around discrimination have no penalties, and have discriminatory penalties for sexual assault against transgender persons as against that of women. Thus, by not providing reservations and other forms of affirmative action, the Act has failed to create an equitable platform that transgender persons can start to rely upon to effectively improve the quality of their lives.
Provisions of the Act around discrimination have no penalties, and have discriminatory penalties for sexual assault against transgender persons as against that of women
Applying the same lack of affirmative action in representation and identification of trans persons in hospitals and health centres, we observe that it is often reflected in the absence of trans-specific wards. Gender binaries of male and female wards restrict trans persons from accessing healthcare on a daily basis. Trans rights advocates claim that many trans persons routinely die in hospitals due to delays in hospital admission procedures.
According to the UNDP India report, “Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion”:
“The estimated size of MSM (men who have sex with men) and male sex worker populations in India (latter presumably includes Hijras/TG communities) is 2,352,133 and 235,213, respectively. No reliable estimates are available for Hijras/TG women. HIV prevalence among MSM populations was 7.4% as against the overall adult HIV prevalence of 0.36%. Until recently, Hijras/transgender people were included under the category of MSM in HIV sentinel sero-surveillance. Recent studies among hijras/transgender (TG) women have indicated a very high HIV prevalence (17.5% to 41%) among them.”
The trans community is one of the poorest and most marginalized communities in the country, most of them having barely any access to healthcare. Also, they are one of the most under-nourished communities and their health levels are lower than average citizens, which makes them even more susceptible to the corona virus infection.
As Pushpa Achanta says, most of the community members are working-class people and thus, can’t afford the privilege of social distancing if they were to get back to work. To that end, Solidarity Foundation offers grants and scholarships to gender minorities and other minority groups so that they could get training to do some kind of remote work.
Such forms of simple affirmative action can create a world of difference towards ensuring alternate means of sustainable income for these people. It is important to realize that there are multiple minority identities in the country and gender minorities are often in the intersections of multiple identities, further aggravating the case of deprivation and marginalization.
What can thus be done to improve healthcare accessibility for trans community during the pandemic is to educate them about the health risks that they are currently exposed to, and work towards making relevant health advisory available in all languages.
Hospitals and health centres must have wards earmarked for trans persons, so that neither they are denied admission, nor does confusion arise for health workers. The key is to foster inclusion of this highly marginalized and deprived community in accessing health services that the government is freely giving away to citizens, and this can only be done when hospital administrators, local administration and elected representatives take affirmative action towards making healthcare “trans-friendly”. Also, policy interventions such as including trans persons in the Ayushman Bharat scheme are desperately needed in order to make inclusion a reality.
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*Second-year MBA student at Indian Institute of Management-Ahmedabad

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