This post is authored by Aishwarya Suresh Nair, IIIrd Year Student of the National Law Institute University, Bhopal. She is currently interning with CLPR.
On the 14th of May, The Center for Law and Policy Research (CLPR), along with Ondede, organized a panel discussion on ‘Diversity, Identity, and Law’. The speakers were Mr. Siddharth Narrain from the Centre for the Study of Developing Societies, Ms. Saranya Francis, child rights activist and co-founder of Ondede, Suma, sexual minorities activist and Ms. Jayna Kothari, Executive Director of CLPR. The panel was moderated by Ms. Akkai Padmashali, transgender activist and founder of Ondede.
Ms. Suma began the discussion by providing a raw insight into the adversities and trying circumstances that transgender persons face. She drew accounts from her personal experiences and highlighted the difficulties faced by sexual minorities: access to opportunities, legal protection, and societal acceptance. She further added that these were a symptom of society’s resistance to diversity in gender identities.
Ms. Francis argued that the problem of identity was not one restricted to sexual minorities. She presented the binary gender construct as an obstruction that fettered the individual’s right to determine their identity. On the issue of exclusion of fluid gender identities, Ms. Francis urgently questioned why personal choice should be a source of scorn.
The last two speakers, Mr. Narrain and Ms. Kothari provided a legal context for the discussion. Mr. Narrain spoke about legal developments in India and their incapability to accommodate gender fluidity. He questioned the necessity of gender certification by analyzing judgments across cases of transgender athletes. Mr. Narrain identified the 2014 NLSA judgment as a step in the right direction despite being toothless in an application with regard to the proposed reservation policy. He also shed light on the reservation policy proposed by the pending Transgender Bill. Mr. Narrain ended on an optimistic note by noting positive legal developments: the ‘Nangai’ case before the Madras High Court and the embracing of the transgender athlete Caster Semenya by the South African federation.
Ms. Kothari was of the view that India’s first priority should be the decriminalization of diverse gender identities and that legal recognition could only follow after. In reference to the cases of medical certification of transgender athletes, she noted that individual legal successes served as a major impetus towards decriminalization. Ms. Kothari further explained that after legal recognition had been achieved, questions previously unanswered – by virtue of lying outside the binary gender scope – would arise: marriage, parental and inheritance rights; the right to sex reassignment surgeries and legal protection against sexual assault and domestic violence. In conclusion, Ms. Kothari held that although a resolution of transgender issues may be a distant reality in the Indian context, initiating discourse at all levels is vital.
Through the course of the discussion, Ms. Akkai highlighted the need for questioning social constructs. She identified the expression of one’s identity as a matter of personal choice and firmly rejected any intervention by state or other agencies. Ms. Akkai encouraged open discussion and greater integration with sexual minorities as a means of challenging these paternalistic invasions of choice.
In conclusion, the speakers were of the opinion that the law may only provide limited resources to integrate diverse sexual identities into mainstream society. Non-legal realms should also be sites where the battle for social emancipation of sexual minorities must be persistently fought.