The Centre for Law and Policy Research recently taught an elective course on Transgender Identity and the Law in India at National Law School of India University, Bangalore. The Course was conducted on Wednesdays and Fridays, between 5-7.15 P.M. It began on 30th August 2017 and ended with the seventh session on 20th September 2017. The Course was offered to all graduate students as a single credit course, spanning over 15 hours. The Course was taken by Jayna Kothari, Executive Director of Centre for Law and Policy Research.
This course sought to explore the interaction between transgender identity and the law in India. In 2014 the Supreme Court in National Legal Services Authority v. Union of India recognized the right of individuals to choose a ‘third gender’ after which debate around transgender rights in India has entered mainstream public discourse. The avowed goal of the state seems to be the empowerment of the transgender community. However, can such empowerment take place without a radical disruption of gender hierarchies and undoing the very regulation of gender over our bodies, desires and autonomy? Can the transgender movement go beyond demands of formal equality to challenge the dominant understanding of gender? Such an analysis will require the exploration of the ‘transgender identity’, that is at the centre of political and legal discourses, the narratives that constitute it, and the exclusions that this leads to.
In the past, it was only within the framework of identity politics that social justice movements have been able to articulate marginalization, stigma, harassment and discrimination experienced uniquely by a particular group of people. It is only recently that the debates on transgender identity are entering the realms of law. This course will explore how the transgender identity debates shape the discourse on rights, equality and non-discrimination and the role of the law in achieving social justice for trans individuals.
The aim and objective of the course was to introduce students to the transgender identity and its interaction with the law. It sought to give students an informed and critical understanding of gender and identity in India. The course aimed to critically assess the legal frameworks in place so as to apply them to contemporary debates on transgender rights. It also sought to develop a structural analysis of gender using an interdisciplinary approach to investigate gender, and to understand the debates around law reform and transgender rights. The Course was divided into 7 sessions, with each session addressing a different theme and subject.
The first session focussed on understanding the transgender identity. Through readings by Paisley Currah and Gayatri Reddy, the students were introduced to transgender identities, the transgender umbrella and gender galaxies as well as the cultural and social histories of the transgender community in India. The session looked at the idea of sex based on biology v. gender based on intrinsic, psychological gender identity and the construction of gender as immutable v. as a choice. The session aimed to help deconstruct the societal understanding of gender to gain an understanding of transgender lives and identities.
Session Two looked at the Constitutional status of the transgender identity. It reviewed the core arguments in National Legal Services Authority v. Union of India and Ors., and the reasoning of the Court, and explored the various fundamental rights guaranteed by the Constitution to persons. This was in the light of the right to equality, the freedom of speech and expression and the right to life and personal liberty, as well as dignity. Students examined the implications of the directives of the Court in this case, especially with regard horizontal and vertical reservations for the community; keeping an intersectional perspective in mind. The recent Supreme Court decision in Justice K. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. [W.P. (C) 494/2012] was also examined to understand the fundamental right to privacy and its implications of transgender lives. We looked at the convergence and divergence of the sexual orientation movement vis-a-vis the transgender movement. The readings of Busisiwe Deyi acted as a guide to understand the lack of the third gender category in South Africa and the implications on civil participation and rights. The session also examined the Transgender Persons (Protection of Rights) Bill 2016 to understand the incongruence between the Supreme Court decision and the draft legislative policy.
The third session looked at transgender identity and the criminal law. The law in India criminalises the transgender community in two predominant ways. The criminalisation of consensual sexual relations under Section 377 for being ‘unnatural’ often leads to the targeting of the Transgender community. They are also frequently prosecuted against based on their gender identity and gender expression. Provisions like Section 320 of the Indian Penal Code on grievous hurt and enactments like the Telangana Eunuch’s Act or the amendment to Karnataka Police Act directly target the community and their practices. The session explored Section 36A of the Karnataka Police Act and the Telangana Eunuch’s Act which permits State monitoring and maintenance of the records of “eunuchs”, which is defined by the latter as any impotent male. The session also focused on the many instances of police violence and targeting within Bangalore and India against the Transgender community.
Session Four sought to analyse the transgender identity through the lens of a struggle for equality. By exploring case law, we looked at the systemic discrimination against all non-conforming gender identities. Transgender persons are routinely discriminated against at the workplace, either with the entry level denial of jobs, or later, once employed due to either non-conforming gender expressions or for undergoing transition. Focusing on the wording of Article 14 and 15 of the Constitution of India, the session debated whether the word sex was adequate or if there was a need for amendment to include gender and/or gender identity. The session also reviewed the order of the Supreme Court in National Legal Services Authority v. Union of India [(2014) 5 SCC 438] which directed the Central and State governments to recognise Transgender persons as ‘Socially and Educationally Backward Classes’ and its implications for the community.
The fifth session examined the transgender identity and the right to sex reassignment surgery and the right to health. It introduced the idea of sex reassignment surgery and health services as a necessity and a right; as well as whether there was a need for depathologisation of gender identity because of the predominant gender dysphoria argument. By looking at the prominent European Court of Human Rights cases, the session explored questions regarding the duty of the state in the provision of such health care. We explored the negative obligations of the State in non-interference with personal lives, as well as the positive obligations of the State to actively provide health care services to all individuals.
The sixth session dealt with transgender rights and the family. The session studied the creation and development of transgender family law and the largely oppressive and discriminatory jurisprudence on the subject. Students were asked to examine questions regarding the rights of individuals to marry, as well as regarding parenthood and adoption. Two prominent activists, Jessica Lynn and Vyjayanti Vasantha Mogli joined the session and spoke of their own experiences with the law, and the discrimination faced by them whether in the United States of America or in India. The students were also exposed to the idea of a family within the Indian transgender community framework and Hijra identities.
The final and seventh session of the course sought to understand the future of the transgender movement, and the law and politics around it. We looked at the difference between the narratives in the West versus those in the Indian subcontinent and the path ahead for both; as well as whether the current focus on “transgender” led to the erasure of local and cultural identities, or its strengthening. The session sought to analyse the movement based on the broader inclusion in the human rights movement, as well as its interaction with the sexual orientation movement. Thus the course ended on an open note, inviting the students to explore the quest for transgender equality and the future of the movement.
The list of Course readings are under the Resources tab.