CLPR | Trans Law Quarterly | Issue II

 


 

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We are still in the middle of the pandemic. More alone than together. Though one wonders how we know the middle from the beginning when so little has changed or actually has gotten worse. As COVID-19 cases continue to rise at disturbing rates, health care and sanitation workers continue to be denied necessary protections, as trans folx continue to wait for the relief courts promise us; we are forced to return to normalcy to keep a roof over our heads and feed our loved ones. The many ways the trans community suffered as described in our report below are still taking their toll. Meanwhile, welfare boards and a National Council are being established to address trans persons but with little regard for representation and diversity and Rules to the Trans Act are being deliberated while it remains challenged in the Supreme Court. The times are confusing, to say the least.

Globally, we see moves to ban conversion therapy at the same time as various countries roll back on protection for trans persons when not putting them in situations of greater vulnerability and violation. The US Supreme Court gave a landmark judgment outlawing discrimination at the workplace against people on grounds of sexual orientation and gender identity while the Trump administration intends to repeal healthcare for trans persons. Then, there is the aggravation of hostility – Russia banning change of gender and discrimination against trans persons during pandemic relief in Myanmar and Panama. And there is resistance – the largest ever march for Black trans lives in the United States and a protest against arrest of lgbtq activists in Poland.

We are dazed by the onslaught, disturbed by the paradoxes and overwhelmed dealing with the ups and downs of trans lives across the world. After all as Emma Lazarus said, “until we are all free, we are none of us free.” So, we ask the National Council and all the welfare boards set up in the last months to give due regard to the suffering and desires of the most marginalised of us and we will hold them accountable to our shared grief and joy.

CLPR.

Legislative Developments – India

The Ministry of Social Justice and Empowerment released the draft
‘The Transgender Persons (Protection of Rights) Rules, 2020’

In the last issue, we had covered that the Ministry of Social Justice and Empowerment released the draft The Transgender Persons (Protection of Rights) Rules,2020 to send comments and suggestions. CLPR along with many others organisations submitted their comments on the Draft Rules. The said comments have been partially incorporated and a new set of Draft Rules were released on 13th July 2020. CLPR conducted a consultative meeting with over 80 stakeholders to discuss and compile the comments for the draft Rules and the same have been sent to the Ministry to be considered.

UP Revenue Code (Amendment) Act, 2020 Grants Right to Inheritance to Trans Persons

An amendment to the Uttar Pradesh Revenue Code grants the right to inherit ancestral agricultural lands to trans persons as well as rights to succession & physical rights to the property. Changes have been made to Sections 4(10), 108 (2), 109, 110 and 126 of the Uttar Pradesh Revenue Code to include trans persons as members of a landowner’s family, granting the right to succession and property. The amendment was suggested by the Uttar Pradesh State Law Commission in 2019. It is set to be passed on the 28th of August, according to news sources.

National Council for Rights of Transgender Persons Formed:

The Centre passed a Notification dated August 21, 2020, forming the National Council for Transgender Persons under Section 16 of the Transgender Persons (Protection of Rights) Act 2019.  The five trans representatives nominated to the Council are Laxmi Narayan Tripathi, Gopi Shankar Madurai, Meera Parida, Zainab Javid Patel & Kak Chingtabam Shyamcand Sharma and the persons nominated under the category of experts from NGOs are Aryan Pasha, Vihaan Peethambar, Reshma Prasad & Patel Chandubhai Ganeshdas. There has been great criticism on the selection of these members as many of them are not engaged in grassroots work on transgender rights, and there is no representation from minority communities Such as SC/ST or minority religions.

Age Relaxation for Trans persons in TN State Police Subordinate Services 

Tamil Nadu government’s home department has issued an order granting age relaxation for transgender persons for up to 29 years applying for posts in the State’s police subordinate services. The order states that the guidelines will be similar to the age relaxation provided to SC and ST candidates who apply for the recruitment through the Tamil Nadu Uniformed Services Recruitment Board. 

State Monthly Pension for Trans Community in Odisha 

The Odisha State government has announced to include the transgender community into the state’s monthly pension scheme of Madhu Babu Pension Yojana (MBPY) of Rs. 500 to 900 in accordance with age. They have to apply through the MBPY website. The scheme, however, has not yet been amended to reflect this. There is also an older Sweekruti scheme for transgender persons which provides many things such as vocational training, scholarships, smart cards etc.  

Transgender Welfare Board

The Maharashtra Government constituted a State Transgender Welfare Board by way of a resolution on June 8, 2020. Activists and community members have criticized the move, for not including trans men and intersex persons as part of trans representation in the Board.
The Assam Government in June became the 7th State to set up a State Transgender Welfare Board consisting of 6 members. Swati Bidhan Baruah, a transgender activist who has been fighting for the state’s transgender community for the last few years, has been incorporated into the transgender social welfare board as an Associate Vice-Chairperson.

Judgments, Court Orders and Litigation

Although the lockdown was mostly lifted, access to livelihood, healthcare and housing is still a major issue for the transgender community. Several public interest litigations, which were initiated at the beginning of the lockdown, have given way to fruitful results. Some of these are as follows:

  • A petition filed in Kerala High Court seeking relief for transgender persons including providing rations without ration cards, access to health care and cash benefits during the period of the COVID pandemic, has been disposed of. On 8 June 2020, the Hon’ble High Court of Kerala disposed of the matter by directing that necessary steps shall be taken to ensure ration card, identity card to the transgender persons. It was also directed that it must be ensured that medicines are supplied free of cost to the members of the community after showing medical prescription.   
  • In the ongoing case of Vyjayanti Vasanta Mogli v. State of Telangana, the Court, in an order dated 20 August 2020, directed the State of Telangana that ration must be made available to transgender persons in all fair-price shops based on Aadhaar card. Additionally, the Court held that separate wards are to be established in government hospitals for transgender COVID patients. 
  • The Orissa High Court on 26 August 2020 bolstered the right to self-determination and personal autonomy of trans persons by recognizing the right to have a live-in relationship with a person of their choice. In the case of Sonu Krishna Jena v. State of Orissa, the Court held that preventing the petitioner from consensually co-habiting with his partner on the grounds of it be a so-called “same-sex relationship” (sic) is violative of their rights. The Court, therefore, directed that the family of the petitioner’s partner should not prevent them from living together and granted the couple police protection. 

News

Delhi Municipal Corporation School Teachers Being Trained on Transgender Identities 

North Delhi Municipal Corporation is training its teachers on understanding transgender identities. The topics include: understanding transgender terminology; what it means to be a trans person in a school; how can teachers create an enabling environment in schools for all genders; myths and misconceptions; and recent judgments on the subject. 

Incorporating Transgender as a Category Along with ‘male’ and ‘female’ in the CAPF Examination 

In a letter addressed to Central Reserve Police Force (CRPF), Indo-Tibet Border Police (ITBP), Sashastra Seema Bal (SSB) and Central Industrial Security Force (CISF) on 1st July 2020, the Union Home Ministry has sought views on incorporating transgender as the third gender, along with ‘males’ and ‘females’ in the Rules of CAPF (Assistant Commandment) examination 2020. According to Media reports, CRPF and ITBP have given their approval. 

International Legal Developments

UN Calls for Ban on Conversion Therapy

Victor Madrigal-Borloz, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, presented before the United Nations Human Rights Council a Report on the Practices of so-called “conversion therapy” during its 44th Session. Based on 133 submissions from countries, medical experts and civil society organizations, the Report calls for a comprehensive ban on practices of conversion therapy. Magrigal-Borloz also stated that “Such practices constitute an egregious violation of rights to bodily autonomy, health, and free expression of one’s sexual orientation and gender identity. Ultimately, when conducted forcibly, they also represent a breach of the right against torture and ill-treatment.” 

Queensland, Australia Bans Conversion Therapy  

The State of Queensland in Australia has become the first in the country to ban conversion therapy based on gender identity & sexual orientation. The Health Legislation Amendment Bill 2019, in Section 213H prohibits and criminalizes any “treatment or other practice that attempts to change or suppress a person’s sexual orientation or gender identity” by any health service provider. 

Massive Black Trans Lives Matter Movement Rally Held in America

The United States of Ameria is seeing one of the largest movements in its history – the Black Lives Matter (BLM) movement whose mission is “to eradicate white supremacy and build local power to intervene in violence inflicted on black communities by the state”. On 14th June 2020, another rally took place in New York in support of action for black transgender and gender non-conforming persons, dubbed as the “Brooklyn Liberation” popularly called the Black Trans Lives Matter movement, it was attended by an estimated 15,000 people – making it one of the largest marches for trans lives in American history. 

Israel Passes Preliminary Bill Banning Conversion Therapy

The Israeli Knesset has recently approved a preliminary Bill that would criminalize so-called conversion therapy practices. The bill was introduced by Nitzan Horowitz and has passed the first stage of the parliamentary process, but has raised controversy amongst conservative members who are threatening to block it.  Israel’s health ministry has already branded conversion therapy as hazardous. Activists have pointed out that while the Knesset debates this Bill, Israel continues its airstrikes in Gaza, highlighting Israel’s history of pinkwashing

US Supreme Court Bans Employment Discrimination on the Basis of Gender Identity

In a ground-breaking decision, Bostock v. Clayton County, the United States Supreme Court upheld the protection against discrimination of employees on the basis of their sexual orientation and gender identity. The civil rights case concerned 3 different employees who were fired shortly after the employee revealed that he or she is homosexual or transgender. The judgment held that in Title VII of the Civil Rights Act of 1964, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. They recognized a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

US Government’s Attempt to Repeal Transgender Healthcare Rejected by Federal Court

The United States’ Department of Health and Human Services New Rules of 2020 would effectively allow for discrimination of transgender persons in access to healthcare and allied services by excluding “gender identity” from the definition of “sex” in the existing federal law. The United States District Court in Brooklyn found these Rules to be incompatible with the recent Bostock v. Clayton judgment of the US Supreme Court that categorically define discrimination on the grounds of sex to include “sexual orientation & gender identity”. 

American Court declares that trans person cannot be banned from women’s sports teams

The American State of Idaho’s Fairness in Women’s Sports Act had effectively banned transgender girls and women from competing on women’s sports teams without first verifying their “internal and external reproductive anatomy”. Federal Judge David Nye has granted an injunction against the Act stating that not only was this exclusionary of only trans women and girls but that being subject to invasive medical examinations is humiliating and a violation of their rights. He also stated that the Act is likely unconstitutional given the recent Supreme Court ruling in Bostock v. Clayton. 

US’ New Draft Policy on Gender and Women’s Empowerment Does Not Mention Trans Women 

The Trump Administration has released a new draft policy on gender and women’s empowerment for the US Agency for International Development that eliminates any mention of LGBTQ people, particularly transgender women. The language of the proposed policy, which is intended to guide USAID’s grant-making and development work as it pertains to women’s issues, signifies a reversal in policy from the policy embraced by the Obama administration in 2012. 

State of New York Passes Bill Mandating Gender-Neutral Bathrooms 

Section 145 of a new Bill in New York State has made it compulsory for all state-owned or operated buildings to make their single-occupancy bathrooms gender-neutral. This development is significant considering that many States in the US are currently debating whether trans, intersex and gender non-conforming persons should be allowed access to restrooms that match their gender identity or separate gender-neutral facilities. 

Russian Lawmakers Propose Laws that Effectively Ban Change in Gender                                        

draft bill has been introduced before the Russian Legislative Assembly which proposes amendments to the Russian Federal Law on Acts of Civil Status (also known as its Family Code), banning change in gender in the birth registry of a person. The bill will also violate the rights of intersex people since the category “sex assigned at birth” often will not reflect intersex persons’ gender correctly and they will not be able to change it.  

Sudan Repeals Death Penalty for Homosexuality 

Sudan’s Sovereignty Council has repealed part of the provisions of the Sudanese Penal Code that impose a death penalty on those convicted of same-sex relations. Article 148 of the Code imposes up to 7 years imprisonment, death penalty and “a hundred lashes” for anyone convicted of the act of sodomy. Death penalty & lashing have been repealed as punishments – while same-sex relations may still be punished with imprisonment. 

Netherlands to Remove Gender Markers from ID Cards

Dutch Minister of Education, Culture, and Science Ingrid van Engelshoven announced in a letter to the Dutch legislature that gender markers will be removed from the ID cards as early as 2024. Deeming “sex registration” as unnecessary, national identification documents will no longer specify the sex of the card-holder. Engelshoven explained that the move aims to remove obstacles that prevent transgender and intersex people from “fully participating in the society” adding that she wants to “limit the unnecessary registration of gender” wherever possible.   

Protests in Warsaw 

On August 7, hundreds of demonstrators gathered outside the Warsaw offices of the Campaign Against Homophobia, an LGBT rights group, to protest an order to arrest an activist names Margo accused of insulting religious feelings. Many activists hung flags on the statutes of national heroes such as Nicholas Copernicus, as well as a mermaid that is the symbol of Warsaw and a statue of Jesus Christ outside a large downtown church. Human Rights Watch reported that police have arrested LGBTI rights activists for peaceful protest actions on the basis of overly broad blasphemy law enshrined in Article 196 of Poland’s Criminal Code, which is violating freedom of expression and signalling the further deterioration of the rule of law in Poland. 

Three Police Officers convicted for the murder of a transwoman in El Salvador 

A Court in El Salvador has sentenced three Police officers on July 30 for the murder of a trans woman. It marked the nation’s first conviction in a homicide case involving a trans victim. About 600 LGBT+ people have been murdered in El Salvador since 1993. However, only 12 out of the 109 LGBT + murders between December 2014 and March 2017 went to trial, according to government data, and none ended in conviction. 

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Editorial team:

AlmasAjVikramadityaKruthika, Ritambhara  and Jayna.


CLPR’s South Asia TransLaw Database brings together law and policy resources in the field of transgender rights in South Asia. This newsletter is part of that initiative to keep up with the fast-evolving laws, activism and practices related to the transgender rights movement.

 

Jayna Kothari

Executive Director

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Vikramaditya Sahai

Associate

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Almas Shaikh

Research Associate

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Aj Agrawal

Research Associate

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Kruthika R

Research Associate

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Ritambhara Singh

Communication & Advocacy Director

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