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Four years gone, yet transgender rights law 'failing to offer' gender-affirming services

Counterview Desk  

The All-India Feminist Forum, an ally of the top civil society network National Alliance of People’s Movements (NAPM), in a statement on the occasion of the Transgender Day of Remembrance*, has regretted that the Transgender Persons (Protection of Rights) Act was passed by the Indian Parliament in August 2019 with “insufficient consultation” with transgender persons and groups despite “multiple protests highlighting some key problems”, particularly the issue of self-determination.
“While some of the provisions of the Act can prove to be enabling, they are lacking in effective implementation. It has been four years since the passage of the Act, yet the mandate of Trans Act 2019 and Rules, 2020 has not been followed through effectively across many states in the context of anti-discrimination protection, education, healthcare, livelihoods, raising awareness and sensitization amongst various sections of society and state etc.”


All India Feminist Forum remembers with pain and pride, scores of transgender people across India and the globe, on this Transgender Day of Remembrance (TDoR), who have faced and fought structural injustices, in life and in ‘death’. While there are no official figures of the total number of deaths and killings of transpersons in India, ground reports from different states are quite alarming.
For instance, in Tamil Nadu alone, there have been around 29 cases of murders or transpersons being pushed to ‘suicide’ in the past one year! There are similar accounts from multiple other states. This is something deeply horrifying and needs a wider and sustained movement for change. 
We need to commit ourselves to building a social and political system, where all persons, regardless of their gender and sexuality, are entitled to safety, rights, dignity and equity, and don’t have to lead ‘second-class lives’ or succumb to discrimination and ‘death’ by gendered hate, humiliation and violence.
As is known, TDoR is observed annually in the month of November, to honour the memory of transgender persons whose lives are taken away by violence - institutional, systemic/structural, or familial. It is important to acknowledge the presence of these different kinds of violence inflicted on transpersons, since they highlight the existence of it in both direct/overt and invisible forms. 
The Transgender Day of Remembrance (TDoR) began initially in 1999, as a vigil organized by Gwendolyn Ann Smith, a transgender woman and activist, to honour the memory of Rita Hester, an African-American transgender woman who was brutally murdered in November 1998. 
Denied dignity in life and ‘death’, Rita’s killing led to some of her loved ones to mark the occasion to respectfully remember her. Since then, TDoR has been a day to remind all of us globally, that trans lives can’t be erased in reality and in memory.
It needs to be mentioned that the systemic and structural kinds of violence are often invisibilized – be it through underreporting of trans-specific violence, to the inequality in socio-legal structures (such as delay and denial of issuing of necessary documents documenting the transgender identity of the person) leading to exclusion of transpersons from basic rights such as the right to food, housing, social security, healthcare and equality of access to justice. 
As one report shows through case studies on transgender rights across the globe, structural inequalities lead to poverty, marginalisation, and “may also prevent trans people from accessing healthcare services”. This lack of access to basic rights exemplifies a form of structural violence.
Institutional violence occurs and is driven by prejudice, bias against and ridicule of transpersons who come to healthcare centres to seek healthcare or gender-affirmative care. Lack of sensitization of healthcare professionals and officials directly leads to a lack of access for transpersons who may want to access public spaces such as healthcare centres, police stations (for filing complaints/reporting crimes) etc. 
In educational institutes such as schools and colleges and places of employment, shaming, bullying and other forms of mental and emotional abuse adversely impact transpersons who are unable to find a way out of this institutional violence where they also have to go to access and avail their basic rights.
Natal family violence is one of the leading causes of ‘death’ of transgender persons. In a heteronormative society, to grow up as a person non-conforming of the binary genders is a harrowing experience for any child. While adulthood (18 years) enables a certain level of freedom to the transpersons, being a minor mandates them to have to continue living with their natal family which may not be accepting and often be actively violent towards their trans children.
Transness is considered synonymous with violent forms of ‘mental illness’ in most cases, which is a dangerously misinformed stereotype held by many in our country. Such stereotypes and prejudices lead to trans children (at times even trans adults) being subjected to “corrective” therapies and measures which often include rape to “correct” the sexuality of trans children. Intimate partner violence in relationships where transpersons are involved is also one of the main causes of direct violence faced by transpersons.
The violence is intrinsic to the family as a structure which is in place to maintain caste purity and acts as a mechanism of patriarchal control. But the family (in its traditional, heteronormative, monogamous, and reproductive form) is also the only form of relation that the state recognizes for a person even when this person faces violence from it, which means that they still get to make decisions for them (where they live, their partners, medical decisions etc.) and so on. 
Additionally, in a context in which many fundamental rights are defined in relation to familial relations, or imply these, and families are understood as exclusive of the kind of relationships that we establish among ourselves, it means that trans people (and kinship/care networks) by default do not get access to availing their rights.
These instances go on to show that violence against transpersons are not isolated instances, but a larger pervasive phenomenon symptomatic of the kind of society we live in - transphobic, patriarchal, prejudiced and violative of basic human rights, at large. These are also embedded in the state and other institutions, in the family structure and caste system in India. Given these intersections and their nexus and what they lead to, there are many demands raised and fought for by transpersons in India.
TDoR is thus also observed as a day to reiterate the demands of the transgender community. In India, these demands have been long-sought and actively advocated for by trans movements, activists, lawyers and various individuals. We extend our solidarity with the transgender community in the following reflections and demands:
  1. The Transgender Persons (Protection of Rights) Act was passed by the Indian Parliament in August 2019 with insufficient consultation with transgender persons and groups. Multiple protests highlighted some key problems with the draft Bill, but except a few, many necessary changes were ignored. The Act remains in contradiction with the principles articulated under the NALSA judgement (April, 2014), in that it puts in place a system which is ambiguous on the issue of self-determination. While some of the provisions of the Act can prove to be enabling, they are lacking in effective implementation. It has been four years since the passage of the Act, yet the mandate of Trans Act 2019 and Rules 2020 has not been followed through effectively across many states in the context of anti-discrimination protection, education, healthcare, livelihoods, raising awareness and sensitization amongst various sections of society and state etc.
  2. The Trans Act 2019 mandates competent authorities to ensure access to medical and health services for Transgender community, which includes gender-affirming services. However, the lack of affordable gender-affirming services coupled with hostility and bias, renders most medical setups inaccessible to transpersons.
  3. Excessive delays in the issuance of Transgender ID Cards, along with a lack of awareness and sensitivity in officials towards trans persons, often accompanied by prejudice, is resulting in delays in making essential documents for transpersons which are needed to avail basic services and access basic rights, including the right to education and the right to work.
  4. The demand for affirmative action in the form of reservation for transpersons is an extension of the fundamental right to education, right to work and right to representation. These demands are for reservation in the spheres of education, employment and politics. This underscores the importance of Horizontal Reservations for Transgender persons owing to the double marginality faced by transgender persons from oppressed caste and social locations. Vertical reservations (as accorded in the Constitutional categories of SC, ST and OBC), if replicated for trans persons, shall require them to choose between their caste or gender identity and are hence unfair.
  5. The demand for an effective, functional and inclusive “Transgender Welfare Board” in all states, with adequate budgets, to be constituted (as mandated by the Trans Act 2019) to act as an avenue for bringing up of aforementioned issues.
  6. Marking the Transgender Day of Remembrance (TDoR) officially and taking effective, urgent steps to end all forms of discrimination and violence against transpersons. Stringent legal action and conviction in all cases of killings and violence against transpersons.
There are many ongoing regional struggles to pursue the above demands – in states like Maharashtra, Tamil Nadu, Kerala, Telangana, Assam, Manipur, Karnataka, West Bengal, Delhi etc. We also extend our solidarity to the ‘Trutiya Panthi Hakka Adhikar Sangharsh Samiti’ in Maharashtra, ‘Trans Rights Now Collective’ and trans movements in Tamil Nadu and other states for their sustained struggles to assert Horizontal Reservations.
On this day, we also reiterate the need for the wider society to self-reflect and ask questions, especially as persons who are or wish to be allies to the transgender community:
  • What are we doing specifically in our communities and spaces to enable transpersons, in their journey of self-assertion?
  • How can those of us who are non-trans, use our privileges to translate our solidarity into meaningful action, as a part of our allyship towards the trans community?
  • What are some of the intersections of identity (assigned or borne out of circumstances or choices) that make a trans person more susceptible to hate, and violence? (ex-caste, religion, sex-work etc.
As we mark the Transgender Day of Remembrance, we hope these articulations and questions lead to real and continued solidarity to the trans communities for their right to self-determination and self-dignity. The struggles of the transgender community are connected to basic democratic values, fundamental rights -- the right to life of dignity for each individual, freedom from violence, right to education, right to work, right to food, health care, housing, social security etc. -- amongst many others. 
It is the equal responsibility of the progressive groups and society at large, beyond the transgender community and the LGBTQIA+ community, to develop an understanding of and sensitivity towards these struggles and work towards collective change.
The statement was issued to mark  the Transgender Day of Remembrance,  November 20



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