Insight, May '15
By Biswa Bhusan Pattanayak, Randhoni Lairikyengbam, L. Ramakrishnan
On May 15, 2015, a group of 36 transgender people from Angul district of Odisha obtained their gender identity change affidavits with support from local lawyers. Thirty-four chose to identify as transgender and two as women. What is the context and significance of this event, and what does it mean for the future of transgender rights in India? Members of Solidarity and Action Against The HIV Infection in India (SAATHII), a national NGO that facilitated this process in Odisha, share their experiences.
In response to a 2012 petition filed by the National Legal Services Authority concerning transgender rights, the Honourable Supreme Court of India delivered the landmark NALSA judgement on April 15, 2014. The apex court recognized the need for granting full citizenship, regardless of gender assigned at birth, protecting rights and making provision of social entitlements for transgender individuals. Following the judgement, the central and state governments were directed by the apex court to implement its recommendations within six months, that is, by October 15, 2014. See inset below for excerpts on the key recommendations made by the Supreme Court.
While the Supreme Court was deliberating on the NALSA petition, the Ministry of Social Justice and Empowerment (MSJE), Government of India, constituted an Expert Committee in October 2013 to make an in-depth study of the problems being faced by the transgender communities. The Expert Committee Report was published before the NALSA ruling and the Supreme Court ruling referenced the report asking for it to be implemented in light of the ruling within six months of the verdict.
The Angul camp that enabled 36 individuals to have their gender
identities changed is part of an attempt to get legal service providers to
understand the scope of the NALSA judgement and support individuals to get
their affidavits completed. It is not the complete solution – individuals will
still need to get their newspaper announcements and gazette notifications done
based on the affidavit. Advocacy is needed to facilitate these additional
steps. However, it does help to get the process started for the individuals
concerned, and, more generally, get the word out that the NALSA judgement is yet
to be implemented and people want change.
Apart from the slow pace of its implementation, in part because of specific clarifications sought by the Government of India from the Supreme Court, the NALSA judgement has been critiqued for certain contradictions and lack of clarity in its text. A gap analysis of the judgement prepared by students of West Bengal National University of Juridical Sciences, Kolkata can be seen here – Editor.
Biswa Bhusan Pattanayak, Randhoni Lairikyengbam and L. Ramakrishnan are colleagues in the Bhubaneswar, Imphal and Chennai offices of SAATHII. The authors would like to thank Bandana Sahoo, Bibhuti Bhusan, Kedar Nath Patnaik, M. Sadananda Singh, Santa Khurai and Santosh Kumar Baghar for their involvement and support in the initiatives related to NALSA judgement implementation.
By Biswa Bhusan Pattanayak, Randhoni Lairikyengbam, L. Ramakrishnan
On May 15, 2015, a group of 36 transgender people from Angul district of Odisha obtained their gender identity change affidavits with support from local lawyers. Thirty-four chose to identify as transgender and two as women. What is the context and significance of this event, and what does it mean for the future of transgender rights in India? Members of Solidarity and Action Against The HIV Infection in India (SAATHII), a national NGO that facilitated this process in Odisha, share their experiences.
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| Signature campaign in Manipur for a transgender welfare board. All photo credits: SAATHII |
In response to a 2012 petition filed by the National Legal Services Authority concerning transgender rights, the Honourable Supreme Court of India delivered the landmark NALSA judgement on April 15, 2014. The apex court recognized the need for granting full citizenship, regardless of gender assigned at birth, protecting rights and making provision of social entitlements for transgender individuals. Following the judgement, the central and state governments were directed by the apex court to implement its recommendations within six months, that is, by October 15, 2014. See inset below for excerpts on the key recommendations made by the Supreme Court.
While the Supreme Court was deliberating on the NALSA petition, the Ministry of Social Justice and Empowerment (MSJE), Government of India, constituted an Expert Committee in October 2013 to make an in-depth study of the problems being faced by the transgender communities. The Expert Committee Report was published before the NALSA ruling and the Supreme Court ruling referenced the report asking for it to be implemented in light of the ruling within six months of the verdict.
It has been one year since the historical NALSA ruling. Save
for two transgender welfare or development boards being established in
Maharashtra and West Bengal and discussions underway for establishment of
boards in Chhattisgarh and Bihar, most state governments are yet to come up with
specific strategies for implementation of the apex court’s judgement, including
rolling out central schemes. A welfare board existing in Tamil Nadu since 2008
will need to take a relook at its functioning in light of the Supreme Court judgement.
At the national level, apart from the inclusion of transgender
people in the Indira Awas Yojana and a directive by the University Grants Commission for the inclusion of transgender faculty members and students in
educational institutions, the MSJE has sent letters to all state governments,
proposing five schemes: Financial support of Rs.1,000 for parents of
transgender children, monthly scholarship for students in classes VII to X,
monthly scholarship to pursue higher studies in India, a scheme to train transgender
people in developing their vocational skills, and monthly pension of Rs.1,000
to transgender people after the age of 40 till they reach 60. The contribution
from the Centre is envisioned to be 75% and from the states 25%, except for the
support to parents, which will be completely financed by the Centre.
SAATHII has been working in multiple states of India to
promote access to health, justice and social security services for sexual and gender
minority and other communities impacted by the HIV epidemic. Thrust areas have
included legal literacy to communities, sensitization of health care providers,
legal services authorities and other service providers on ensuring stigma-free
services, and local and regional consultations to raise awareness about the
unconstitutionality of Section 377, Indian Penal Code as it was before the Delhi High Court ruling in 2009 and since the Supreme Court verdict in 2013.
Since April 2014, SAATHII has supported state-level
implementation of the NALSA judgement in Odisha and Manipur, and recently
initiated similar activities in Rajasthan. The objectives of the effort are to
make government functionaries at the state and district levels aware of the
NALSA judgement and its implications, and help transgender community groups
realize the scope of the NALSA judgement and generate demand for services.
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| Consultation with legal service providers in Odisha to generate awareness about the Supreme Court's NALSA judgement |
In May and June 2014, consultations were organized in Odisha
and Manipur, respectively, involving legal service providers, civil society
organizations and transgender community members to discuss the scope and
recommendations of the judgement. In December 2014, public hearings were organized
in Odisha and Manipur to highlight the cases of violence and harassment faced
by gender and sexual minority community members. In Manipur, a signature
campaign was initiated in Imphal by SAATHII and partner agency All Manipur Nupi Maanbi Association (AMaNA) to appeal to the government to set up a transgender
welfare board in the state. In subsequent months, the signature campaign was
carried out with the representatives of Manipur State Legal Services Authority,
Manipur State AIDS Control Society, All Manipur Bar Association, All Manipur
Ladies Bar Association, media houses and with members of community-based organizations
across the state.
On the first anniversary of the NALSA judgement, in April
2015, interactive events with media representatives were organized in both Manipur
and Odisha to discuss the scope and specific recommendations of the judgement.
Facilitating gender identity change affidavits has been the
most prominent activity in terms of implementing the NALSA judgement. In December
2014, an orientation meeting in Manipur was organized with legal service
providers, including representatives from the District Legal Services Authorities
on the scope and recommendations of the judgement, and to establish linkages
with legal service providers for facilitating gender identity change affidavits.
A similar meeting was organized in Odisha in February this year. So far,
SAATHII has facilitated around 70 gender identity change affidavits in Odisha,
including those at the Angul event. Advocate Gowthaman Ranganathan of Alternative Law Forum, Bangalore, supported SAATHII
in both events as an external resource person.
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| Interaction with media representatives in Manipur on the first anniversary of the Supreme Court NALSA judgement |
On other fronts, the implementation of the judgement is not
as fast. In Odisha, we are working with SAKHA and other community-based
organisations to engage with the state government and other stakeholders
towards implementation of the judgement. But the only concrete trans-inclusive
announcement from the Government of Odisha, thus far, has been the inclusion of
transgender persons in the housing scheme Biju Pucca Ghar Yojana.
In Manipur, SAATHII and AMaNA have submitted a letter of
request to the Chief Secretary, Government of Manipur, for facilitating
the formation of a transgender welfare board. The letter was forwarded to
the Principal Secretary, Social Welfare Department, and earlier this month, the
Social Welfare Department reached out to SAATHII seeking support in planning a
consultation with relevant government departments on NALSA implementation.
What has been encouraging is the support received for our
work on transgender rights and health from a number of donor agencies – American
Jewish World Service, Department for International Development, UK (via the erstwhile
Interact WorldWide), Elton John AIDS Foundation, European Union, Global Fund to
Fight AIDS, Tuberculosis and Malaria (via India HIV/AIDS Alliance), World Health Organisation (WHO) and the United Nations
Development Programme (UNDP).
Further work on the ground needed to implement the NALSA judgement
includes dispelling pervasive misunderstanding and clarify to government
functionaries that the term ‘transgender’ includes individuals assigned gender male
or female at birth, and encompasses those who would like to identify within the
gender binary and those who prefer a ‘third gender’ identification.
Another challenge lies in ensuring transgender individuals
already in educational institutions and workplaces are able to have gender
identity changes reflected in their records. Similarly, transgender individuals
should also be able to access existing and new social security schemes and
entitlements and encounter non-discriminatory environments in the process. There
cannot be any two ways about this if they are to be part of the inclusive
development as envisioned by the Supreme Court in the NALSA judgement.
Apart from the slow pace of its implementation, in part because of specific clarifications sought by the Government of India from the Supreme Court, the NALSA judgement has been critiqued for certain contradictions and lack of clarity in its text. A gap analysis of the judgement prepared by students of West Bengal National University of Juridical Sciences, Kolkata can be seen here – Editor.
Biswa Bhusan Pattanayak, Randhoni Lairikyengbam and L. Ramakrishnan are colleagues in the Bhubaneswar, Imphal and Chennai offices of SAATHII. The authors would like to thank Bandana Sahoo, Bibhuti Bhusan, Kedar Nath Patnaik, M. Sadananda Singh, Santa Khurai and Santosh Kumar Baghar for their involvement and support in the initiatives related to NALSA judgement implementation.
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