CLPR | Trans Law Quarterly | Issue III & IV

 

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It has been a year since the first Lockdown in March 2020 to prevent the spread of COVID-19. Yet things seem far from over, not just with this virus but that we still continue to suffer the effects of those months we were isolated and distanced – not just in our well being but in our capacities to gather, to protest, to create the world we need to live in.

We notice that change in policy isn’t driven just by litigants but more proactively by state governments and other public institutions. Madhya Pradesh has a statewide policy for trans persons, Kerala wants to support trans persons’ access to gender affirmative medical procedures and wants to make government forms inclusive, the Delhi government wants to make more bathrooms for trans persons and Gujarat has made a shelter home for trans persons.

This isn’t just consciousness state institutions have arrived at on their own. In each of these states with trans-affirmative policies, there are many, many trans activists organising and mobilising and even more trans persons going to offices and institutions unwilling to bargain their rights. In every application filed for a right, trans persons, no matter whether they get it then or not, have made it possible for all of us. In merely showing up trans persons make a more liveable and democratic world for others.

And, it will be this work that we will continue to do. The unglamorous work of keeping these institutions on their toes, holding them to their promises, and pushing them to do more. We need to see that shelter homes don’t become spaces of incarceration, that bathrooms do not continue caste oppressive practices, that state governments commit to the horizontal reservation, that those who are being hired as constables and metro staff are offered protection and dignity at their workplaces.

This work means listening to other workers and colleagues, building intimacies and coalitions with other communities struggling for their dignity, and protecting each voice that refuses to be satisfied with big announcements and continues to demand the impossible. The only way through when we are tired is to work together.

LEGISLATIVE DEVELOPMENTS

The Transgender Persons (Protection of Rights) Rules, 2020
In our previous issues, we discussed the Draft of ‘The Transgender Persons (Protection of Rights) Rules, 2020 which was released by the Ministry of Social Justice and Empowerment on April 18th, 2020, and again in August 2020. The Rules, after partially taking into consideration the comments submitted, were finally notified on September 25th, 2020. The notification of the Rules has operationalized the highly protested Transgender Persons (Protection of Rights) Act, 2019.

Assam becomes the first state to add ‘Transgender’ as a third gender category while applying for State Civil Services Examination
The Union Public Service Commission had announced in June that ‘Transgender’ as a third category shall be available as an option while applying for Civil Services Examination. In September 2020, the Assam Public Service Commission became the first State to bring similar changes in gender categories in the State civil & allied service examination application. As per an addendum released on September 15th, 2020, by the APSC, ‘transgender’ as a category shall be included for the first time for Combined Competitive (Preliminary) Examinations 2020 applications.

Inclusive Governance: Madhya Pradesh Government launches the ‘State Transgender Policy, 2020’
On November 20th, 2020, the Madhya Pradesh government through the Atal Bihari Institute of Good Governance & Policy Analysis (AIGGPA), after stakeholder consultation has released the ‘State Transgender Policy 2020’, which aims to launch various schemes to improve the living conditions of persons from the transgender community. Increasing employment of trans people in government offices, sensitizing officials including police personnel and health workers are some of the many goals the policy aims to achieve. AIGGPA was set up to aid stakeholder discussions and further support their association which will help in creating more inclusive policy formation and better representation and fairer laws for the transgender community.

Ministry of Social Justice & Empowerment launches ‘National Portal for Transgender Persons’
On November 25th, 2020, the Ministry of Social Justice & Empowerment launched the ‘National Portal for Transgender Persons’ – an online portal wherein transgender persons can apply for gender identity certificates. The portal is a gateway allowing persons from the transgender community to upload an affidavit declaring their gender. This affidavit shall further become the basis on which the district magistrate shall issue their identity certificates. The Portal is available here.

National Human Rights Commission Recommendations from the ‘Core Group on LGBTI Issues’ Meeting
The National Human Rights Commission organized its third meeting of the Core Group on LGBTI Issues on November 11th, 2020. The group discussed several issues pivotal to the LGBTQI+ community and came up with recommendations to discuss the role of law enforcement agencies in spreading awareness about LGBTQI+ rights, aiding capacity building resulting in increasing inclusivity, establishing separate shelter homes & one-stop grievance redressal centres with adequate representation from the LGBTQI+ community. It particularly analyzed Section 18 of the Trans Act and the protection of transgender persons from sexual violence, sexualized violence and sexual torture. Read the report here.

‘Lost Identity’ A Report on Transgender Persons inside Indian Prisons

‘Lost Identity: Transgender Persons Inside Indian Prisons’, is a report released in December 2020 by the Commonwealth Human Rights Initiative on transgender persons & their relations with Indian prisons. The Report throws some light on the challenges faced by transgender persons in Indian prisons and examines the international and legal frameworks. The Report is aimed at aiding better policy formulation for the trans community in general and transgender persons in prisons specifically. The recommendations of the report have been finalised through a consultative process with individuals and experts, including representatives from the community, community-based organisations as well as researchers and academicians working on this issue. 

Kerala Government launches Mazhavillu scheme for the transgender community, including financial assistance for SRS

Under the scheme, a person will receive maximum assistance of 2 lakh for gender affirmative surgery and 3,000 for further treatment.  The scheme also provides for initiatives like educational assistance, skill development, and vocational training.

Garima Greh: A Shelter Home for Transgender Persons
The Ministry for Social Justice & Employment has inaugurated ‘Garima Greh: A Shelter Home for Transgender Persons’ in Vadodara, Gujarat on November 25th, 2020. Under the ‘Shelter Home for Transgender Persons’ Scheme, the ministry aspires to set up shelter homes for trans persons who have been forced out of their homes or abandoned by their families, further aiding capacity building, skill development, providing food, medical care etc. This is a pilot project and on its successful completion, similar schemes will be established in different cities around the country. 

Odisha government has launched Mission Shakti to recruit persons of the transgender community to handle construction waste
The Odisha government has decided to engage members from the state’s women empowerment initiative, Mission Shakti, and of the transgender community for effective and efficient management of construction and demolition waste in the urban areas. It has also been recognised that the community will be better placed to overcome the negative social pressures and gender biases operating against them and to unshackle themselves through group identity and activity.

Delhi Government to make it  mandatory for all local bodies to have separate washrooms for transgender persons
The Delhi government has made it mandatory for all its departments, offices, district authorities, municipal corporations, state-run companies, and the Delhi Police to have separate and exclusive washrooms for transgender persons. The order dated 12.02.2021 states that under section 22 of the Transgender Persons (Protection of Rights) Act, 2019 clarifying that transgender persons shall continue to be allowed to use toilets as per their self-identified gender.

Trans women secure a historic win in Karnataka Gram Panchayat elections 

Sudha, a resident of Kalahalli panchayat, and Devika, of Saligrama panchayat, two trans women, have achieved a milestone towards the greater representation of trans persons in India. Sudha was elected to the Kalahalli panchayat after securing 622 votes in the first-gram panchayat election in the village in 26 years. Devika won ward 7 of Saligrama panchayat, further stating that she has been living in the region for 35 years and was encouraged by her friends to contest in the elections.

Chennai Metro has hired transgender persons at the New Washermenpet Metro station
The Chennai Metro Rail Limited and KCIC hired 13 members of the transgender community in various roles, such as ticketing agent and engineer. Vinithra Devi one of the transgender persons employed at the Chennai Metro stated that they will ‘make the best of the opportunity after enduring years of suffering’.

Chhattisgarh police hire transgender persons as constables 

The Chhattisgarh police recruited 13 transgender people as constables in four districts of the state. Out of the thirteen, nine were recruited from the Raipur range. Until now, only two transgender police personnel were recruited in India — one in Tamil Nadu, another in Rajasthan. 

Monitoring cell to be set-up to record offences against Transgender Persons: Delhi Police 
Delhi Police Commissioner S N Shrivastava has directed that a monitoring cell, headed by a JCP rank officer, be set up to monitor cases of offences against transgender persons. The cell is meant to ensure timely registration, investigation, and prosecution of such cases. This decision has been taken after the Ministry of Home Affairs advised the Chief Secretaries of States and Union Territories to take steps towards enforcement of the Transgender Persons (Protection of Rights) Act, 2019. 

JUDGMENTS, COURT ORDERS & LITIGATION

Veera Yadav v. The Chief Secretary, Government of Bihar
A petition was filed in the Patna High Court, praying for relief to the transgender community during the COVID-19 pandemic. In the order dated 14.12.2020, the Court mandated the State to adopt a pro-active approach in light of the Transgender Persons (Protection of Rights) Act, 2019. The government submitted an affidavit which was noted in the order dated 03.02.2021. In it, the government decided to set up a separate Police unit for transgender persons, since there were not enough eligible people to provide reservations. The Court has asked the government to consider providing reservations in other departments and fields as well.

Hina Hanifa v. Union of India
Hina Haneefa, a trans woman, had applied to join the Girls Division of the National Cadet Corps in her college. Her application was rejected stating that the NCC was a ‘gender specific’ organization. Section 6 of the National Cadet Corps Act, 1948 states that the recruitment to the Girls Division was to be made from female students of any university or school. In its judgment, the Court noted that the Trans Act was enacted to realise the constitutional guarantees under Articles 14, 15, 19 and 21 of the Constitution of India, 1950. It held that she is entitled to enrolment in the NCC Girls Division. The Court also directed the respondents to amend the enrolment criteria in section 6 of the NCC Act to include transgender persons and to prescribe guidelines for their enrolment within 6 months. 

Christina v. State of Karnataka & Ors.

Christina, a transgender woman, filed a petition challenging the inaction of the respondents in issuing new CBSE certificate of marks (report card), PU certificate and the degree record which would reflect her requested change in name and gender identity. The High Court relied on Rule 3(3) of the Transgender Persons (Protection of Rights) Rules, 2020 in which a transgender person who has officially recorded their change in gender prior to the enactment of the Act are not required to apply for a certificate of identity under the Rules. Accordingly, the High Court of Karnataka on 1.10.2020 allowed the petition and directed respondents to issue educational documents reflecting the chosen name and gender of the petitioner.

      

Mx Sumana Pramanik @ Suman Pramanik v. The Union of India & Ors. 
The Calcutta High Court on 2nd February 2021 directed that reservation, age relaxation, and fee concession must be implemented immediately for the category of transgender candidates along with other reserved categories for the Joint CSIR-UGC NET Examination stating that it is a violation of Articles 14 and 21 of the Constitution of India. 

Pallabi Chakraborty v The State of West Bengal & Ors
In the case of Pallabi Chakraborty v The State of West Bengal & Ors,  the Calcutta High Court ordered the setting up a Grievance Redressal Mechanism in the State or in the police force to address the grievances of transgender persons,  referring to Section 11 of the Transgender Persons (Protection of Rights ) Act, 2019. However, the Court did not grant the petitioner’s primary plea in which she sought employment as a transgender person rather than a ‘lady’, which is the category under which she was employed.

Karan Tripathi v. NCRB & Ors. 
A PIL was filed by Karan Tripathi, seeking inclusion of transgender persons as a separate category in National Crime Records Bureau Reports and a separate data collection process should be incorporated for the same. In response to Delhi High Court’s order, the Central government informed that ‘transgender’ as a separate gender category shall be included in the upcoming National Crime Records Bureau’s Prison Statistics India 2020 report and this change will continue here onwards. So, in its judgment dated 07.12.2020, the Court disposed of the petition as NCRB has included ‘transgender’ as a gender classification of prisoners form in the future Prison Statistics India reports from PSI-2020 onwards 

INTERNATIONAL LEGAL DEVELOPMENTS

U.K. Drops Trans Rights Self-ID Reform of Gender Recognition Act
On 22nd September 2020, the U.K. dropped the reform of the Gender Recognition Act to introduce rights of self-identification which is a major blow to LGBTQ Rights. In a written statement, Equalities Minister Elizabeth Truss has confirmed that the U.K. government has scrapped plans to make legal transition easier in England and Wales, stating that is not the top priority for transgender people. The statement added that they will make the process cheaper and open three more gender identity clinics. Reforms to the Gender Recognition Act (2004) in Scotland are still being discussed.

Bhutan becomes the latest country to decriminalize consensual same-sex sexual relations
On 10th December 2020, Bhutan became the latest country to take a step towards decriminalizing consensual same-sex sexual relations. Section 213 and 214 of the Penal Code of Bhutan criminalizes ‘unnatural sex’ and homosexuality. The latest Penal Code Amendment Bill, 2019 proposes for removal of these Sections. The Bill has been formally approved by the National Assembly. Bhutan is currently one of the 72 countries in the world that have legal provisions that criminalizes homosexuality. With this move, Bhutan is a step closer to removing these provisions in the law.

11 openly LGBTQ members will take their seats when the 117th Congress convenes

The US elected its first transgender State Senator, Sarah McBride, in Delaware. McBride is a former spokesperson for the LGBTQ advocacy group Human Rights Campaign, was a trainee in the White House during the Obama administration and became the first trans person to speak at a major political convention when she addressed Democrats in Philadelphia in 2016. As a state senator, McBride is committed to fighting for health care for all, strong public schools for every child, good-paying jobs with real benefits for Delaware’s families, and safe communities where each resident is treated with dignity.

       

Parents for Privacy v. William P. Barr et al
In 2017, Dallas School District’s practice of permitting a transgender boy to use the same restrooms and locker rooms as the other boys was challenged by Oregon parents claiming that it violates the rights of non-transgender students. Portland-based U.S. District Judge Marco A. Hernandez dismissed the action in 2018, which was affirmed in February 2020 by the Ninth Circuit. The U.S. Supreme Court on 7th December 2020 denied the petition by the parents upholding the school policy of permitting students belonging to the transgender community to use bathrooms and locker rooms matching their gender identity rather than the sex assigned to them at birth. It affirmed, “that transgender youth are not a threat to other students”.

Biden signs Executive Orders expanding nondiscrimination protections for gender identity
Following the decision in Bostock v Clayton County which protected employees from discrimination on grounds of gender identity, US President Joe Biden has signed an executive order to expand this to various other fields including education, housing, healthcare, and immigration. The order requires all government departments to review their policy per this decision and change those that allow for discrimination based on gender identity or sexual orientation. In a separate executive order, Biden also reversed the ban on transgender people serving in the military. This has, however, been criticised by peace activists as essentially ‘pinkwashing’ the military.

Victorian Government introduces legislation to outlaw conversion “therapy”
On 24th November 2020, the Victorian Government in Australia introduced legislation to outlaw conversion “therapy” seeking to change someone’s sexuality or gender identity, with fines of close to $10,000 or up to 10 years in jail. The Change or Suppression (Conversion) Practices Prohibition Bill, 2020 empowers the Victorian Equal Opportunity and Human Rights Commission to investigate reports of conversion practices. The Victorian legislation goes further than the Queensland bill – which was passed in August – and covers anyone who attempts to convert someone else. The Queensland legislation was criticized by survivors for being limited to health providers and not capturing informal conversion practices outside of healthcare settings. On 25 November 2020, this article was amended to make clear that conversion practices are not therapy.

Pushback against trans rights using crowdfunding drives to fund lawsuits in UK
A group of campaigners who have pushed back against transgender rights in Britain have used crowdfunding websites to fund at least 18 lawsuits in the past four years, from challenging guidelines for schools to accommodate trans pupils to restricting puberty-blocking drugs.

The Hungarian Parliament approved a draft law that bans same-sex couples from adopting children.
The Hungarian parliament approved a draft law that effectively bans same-sex adoption. On 15th December, Hungarian lawmakers passed a law that bans same-sex couples from adopting children. Adoption by gay and lesbian couples had been possible only if one partner applied as a single person since gay marriage is forbidden in Hungary. Hungary’s parliament also backed a change to the constitution that defined what a family is. This law, along with an earlier law that banned transgender people from changing the sex observed at birth in their official documents effectively bans transgender persons from being recognized as a family with regard to adoption.

Israel Health Ministry declassifies being trans as a mental disorder
Israel’s Health Ministry has released new guidelines for providing healthcare to transgender people after consultations with the LGBTQ+ community. The guidelines recognise that being trans is not a mental disorder, following the WHO’s decision two years prior. It also sets out conditions for creating a safe medical environment including the correct use of pronouns, sensitisation of staff, provision of unisex bathrooms, and more.

Swiss Parliament allows self-declaration for gender recognition
The Swiss Parliament has recently passed a bill allowing legal gender recognition simply by self-declaration. It has also significantly reduced the cost of the process which previously involved applying to a court. However, the bill makes it difficult for trans people under the age of 16 or those under a general deputyship, who will require the permission of their legal guardian. Previously if a court determined a minor was capable of judgment, they could change their gender without the permission of their guardian. The bill is set to come into force soon.

UK Court rules puberty blockers allowed for under-18s, but unlikely for under-16s
In Bell v Tavistock, the UK’s NHS applied to the Court to clarify the principles of informed consent under medical law when it comes to puberty blockers for children. The High Court applied the present test that requires a patient to be ‘competent’ as legally defined and have the right information. It decided that people under the age of 18 could consent, though it was less likely the younger they were. For ages below 16, the Court noted quite strongly that it was ‘highly unlikely’ they could consent to puberty blockers, which is necessary for trans children who wish to transition. The matter is scheduled to be heard on appeal by the Court of Appeal.

Malaysian Court strikes down the religious sodomy law
The Federal Court in Malaysia struck down a religious sodomy law under Sharia in Selangor, a constituent state. However, this was on the ground that Islamic state law cannot coexist with the secular, federal law which criminalises the same conduct through Section 377. The ruling nevertheless provides respite from the Selangor Islamic law which was used more often and had harsher punishments and provides hope for abolishing the same in other states and federally in the future.

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Editorial team: Vikramaditya, Ritambhara, Mihir, 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.

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