In this article, published by the Oxford Human Rights Hub, Mansi Singh, and Mihir Rajamane explore the need to accommodate welfare in judicial analysis of LGBTQ+ rights, by acknowledging close intersections between queer identities and identities of caste, disability and class.
Excerpt from the Article:
In India, LGBTQ+ identities have always been implicated in social and economic hierarchies. For instance, indigenous gender minorities, such as the hijra and jogappa, face a reality of social and economic marginalisation. The situation is more dire for queer identities that intersect with oppressed castes, disability or non-urban locations. It results in exclusion from social spaces and restricts their livelihood to exploitative forms of labour like sex work and begging.
This was particularly salient during the COVID-19 pandemic, when the freeze on economic activity led to increased precarity, particularly for those without jobs in the formal economy. State assistance was announced for the general public but it failed to accommodate transgender and intersex persons, as they do not always possess state-issued identity cards that acknowledge their gender identities and expressions. As a result, many were unable to access ration, medicines and cash assistance. Moreover, the policies did not consider needs particular to the trans and intersex community, such as loss of income, access to medicines, hormone therapies and HIV medication, increased harassment and stigmatisation, and eviction from their homes. The executive action clearly failed to implement section 8(3) of the regressive Transgender Persons (Protection of Rights) Act, 2019 (Trans Act) which dictates that the government shall “formulate welfare schemes and programmes which are transgender sensitive”.
Possibly for the same reason, transgender and other LGBTQ+ persons have found the litigative approach to be more successful in securing welfare. This approach stems from the promising judicial developments where the Indian Supreme Court recognised the rights of transgender persons and decriminalised ‘same-sex’ intercourse. Both judgments relied on an expansive reading of the concepts of equality and anti-discrimination (Articles 14 and 15), freedom of expression (Article 19), and the right to dignity and autonomy (Article 21) in Indian constitutional law. The Court recognised the failings of the State during the pandemic in the legal representations filed by trans groups in 5 State High Courts (Karnataka, Kerala, Telangana, Tamil Nadu, Manipur). It rebuked the State for not providing the option for “third gender” in the registration form for ration cards, and ordered the State to reserve COVID wards for transgender persons to prevent harassment and identify vulnerable transgender persons in need of shelter.