- Human Rights Law Network

Transcription

ISSUES FACED BY TRANSGENDER PERSONS IN ODISHA
Fact-Finding Mission to Bhubaneswar and Cuttack
20 July – 22 July 2015
July 2015
Human Rights Law Network
Reproductive Rights Initiative
576 Masjid Road, Jangpura
New Delhi, India 110014
1
TABLE OF CONTENTS
MAPS ...................................................................................................................................... 3
I. FACT-FINDING TEAM.......................................................................................................... 5
II. INTRODUCTION ................................................................................................................. 6
III. BACKGROUND ................................................................................................................... 8
A. ODISHA ............................................................................................................................... 8
B. DEFINING TRANSGENDER ........................................................................................................ 8
C. TRANSGENDER TERMINOLOGY IN INDIA ...................................................................................... 9
D. BACKGROUND AND ISSUES FACED BY TRANSGENDER PERSONS IN INDIA ......................................... 10
III. LEGAL PROTECTIONS........................................................................................................ 12
A. INTERNATIONAL CONVENTIONS AND GUIDELINES....................................................................... 12
B. CONSTITUTIONAL PROTECTIONS ............................................................................................. 14
C. DOMESTIC CASE LAW AND PUBLIC INTEREST LITIGATION ............................................................. 16
i) National Legal Services Authority v. Union of India and Others ........................... 17
D. RELEVANT PROVISIONS OF THE INDIAN PENAL CODE (IPC) ............................................................ 21
IV. FACTS............................................................................................................................... 24
A. MEETING WITH TRANSGENDER GROUP IN CUTTACK ................................................................... 24
C. MEETING WITH TRANSGENDER GROUP IN BHUBANESWAR .......................................................... 37
VI. CONCLUSION .................................................................................................................... 47
2
MAPS
The State of Odisha
Source: Wikimedia Commons
Districts of Odisha
Source: Wikimedia Commons
3
Bhubaneswar, Khurda District, Odisha
Source: www.fullstopindia.com
Cuttack, Cuttack District, Odisha
Source: businessodisha.in
4
I.
FACT-FINDING TEAM
Name
Position
Sevati Soren
Advocate, HRLN – Cuttack
SaritaBarpanda
Director, Reproductive Rights Initiative, HRLN
– New Delhi
SmritiMinocha
Director, Women’s Justice Initiative, HRLN –
New Delhi
Sarah Crowe
Intern, HRLN – New Delhi
5
II.
INTRODUCTION
Between 20 July and 22 July 2015, social activists from the Human Rights Law Network (HRLN)
conducted a fact-finding mission in Cuttack (Cuttack district) and Bhubaneswar (Khurdha
district), Odisha in order to establish the current situation of the transgender communities
living in these areas.
Odisha has a very visible transgender community. It is estimated that there are up to 25,000
transgender persons living in Odisha, although in absence of a formal estimation this number is
only an approximation.1 HRLN has maintained a dialogue with members of the transgender
community in Odisha for several years and is aware of the high level of discrimination and
ostracism they face. In particular, Sarita Barpanda has maintained contact with transgender
community members in Odisha since 2005.
Transgender community members from Bhubaneswar visited HRLN in Delhi in March 2015.
They expressed their desire to file a petition due to failure of Odisha state government in
implementing the Supreme Court’s judgment in National Legal Services Authority (NALSA) v.
Union of India and Others.2They also requested Information on Education Communication
resource materials. In its judgement in NALSA on 15 April 2014, the Supreme Court gave legal
recognition to persons identifying as transgender – or third gender. It held that transgender
persons are afforded the same Constitutional protections as any other Indian citizen.
Furthermore, it made a number of directions to the Central and State governments, instructing
them to ensure that necessary services and reservations are made for transgender persons. The
purpose of the fact-finding mission therefore, was to determine whether the judgment has
been properly implemented in Odisha.
The fact-finding team consisted of Sevati Soren, an advocate at the HRLN office based in
Cuttack, Odisha, and three social activists from HRLN New Delhi. Sarita Barpanda is the current
director of the Reproductive Rights Initiative and has a longstanding history of working with
1
See for example, a census conducted in India in 2011, it was estimated that there were around 20,000
transgender persons living in Odisha. However, activists and members of the transgender community claimed that
the number of transgender persons was actually much higher, as many transgender persons would not have
revealed their gender identities in the census. http://timesofindia.indiatimes.com/india/First-count-of-thirdgender-in-census-4-9-lakh/articleshow/35741613.cms
2
Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013
6
transgender communities in India. Smriti Minocha is the director of the Women’s Justice
Initiative. Sarah Crowe is an intern at the New Delhi office.
The interviews of the transgender communities were conducted by Sevati Soren and Sarah
Crowe. They visited two different groups, one in Cuttack, and one in Bhubaneswar. All four
team members were present during a meeting between the Odisha Department of Social
Justice and Empowerment and transgender representatives from different districts of Odisha.
The team successfully met with different members of the transgender community and gained
an insight into the situation of transgender persons living in Odisha. Ultimately, the team
learned that the government of Odisha has made minimal effort to implement the NALSA
judgment.
7
III.
BACKGROUND
A. Odisha
The State of Odisha is located on east coast of India by the Bay of Bengal. It is divided into 30
districts. According to the 2011 Census, the State has a population of 43,228,228 people spread
over 155,707 square kilometres3and over 80.9% of Odias live in rural areas, which is
significantly higher than the national average of 68.8%.4As noted, it is estimated that up to
25,000 people living in Odisha identify as transgender. In particular, based on information
obtained during the fact-finding mission, it is estimated that there are around 25 transgender
persons living in Cuttack and around 486 living in Bhubaneswar. It is important to note,
however, that accurate figures are unavailable due to the fact that no formal estimation of the
number of transgender persons living in Odisha has been conducted.
B. Defining Transgender
Transgender: a person whose self-identified gender does not correspond to the gender
assigned to them at birth. Their gender identity may not conform to conventional binary
notions of male and female, but rather as a third gender. The term transgender is not indicative
of sexual orientation, hormonal makeup, physical anatomy, or how one is perceived in daily
life.5
The term ‘transgender’ should be distinguished from terms such as ‘transsexual’6 and
‘intersex.’7 It should also be distinguished from sexual orientation, which refers to an
3
HMIS Analysis – Odisha Across Districts, Apr ’14 to Sep ’14, National Rural Health Mission (14 Nov. 2014).
Analyzing data from the 2011 Census.
4
Census of India 2011, Orissa Profile, available at http://censusindia.gov.in/2011census/censusinfo
dashboard/stock/profiles/en/IND021_Orissa.pdf; Census of India 2011, India Profile, available at http://
censusindia.gov.in/2011census/censusinfodashboard/stock/profiles/en/IND_India.pdf.
5
Trans Student Educational Resources, Trans and Queer Definitions accessed at
http://www.transstudent.org/definitions
6
a person whose gender does not correspond to the gender assigned to them at birth and has made, or is making,
the transition within the gender binary.
7
a person who is born with sexual organs/hormones/chromosome patterns which do not conform unambiguously
to one gender i.e they do not fit the binary notions of male or female.
8
individual’s enduring physical, romantic, and/or emotional attraction to another person.8
Transgender, by contrast, relates to one’s internal identification as a particular gender. Thus, to
identify as transgender does not necessarily determine one’s sexual orientation as gay, lesbian
or bisexual.
It is also worth highlighting the crucial distinction between sex and gender. Sex refers to the
biological anatomy of a person typically categorised as ‘male’, ‘female’ or ‘intersex.’ Indicators
of sex include sex chromosomes, gonads, internal reproductive organs, and external genitalia.9
Gender, however, refers to the cultural and social constructs which typically characterise the
sexes. These include taught behaviours, roles, norms, relationships and interactions with the
opposite sex. Thus transgender persons’ gender-identity and biological sex can be said to be
incongruent.
C. Transgender terminology in India
Hijra –biological male who rejects their 'masculine' identity to identify either as woman, or
“not-man”, or “in-between man and woman”, or “neither man nor woman”. They have a long
standing tradition/culture in Indian society and have strong social ties formalized through a
ritual called “reet” (becoming a member of Hijra community). There are regional variations in
the use of terms referred to Hijras. For example, Kinnars (Delhi) and Aravanis (Tamil Nadu).10
Eunuch - a person who is born male but is castrated or emasculated. The term Eunuch is
commonly used interchangeably with the term Hijra in India, however many transgender
persons consider the term ‘eunuch’ to be derogatory. This was confirmed by the group in
Bhubaneswar, who did not care for this term.
Kinnar– regional variation of Hijra used in in Delhi/ the North and other parts of India such as
Maharashtra.
Aravani – regional variation of Hijra used in Tamil Nadu. Some Aravani activists want the public
and media to use the term 'Thirunangi' to refer to Aravanis.
8
American Psychological Association ‘Answers to Your Questions about Transgender People, Gender Identity and
Gender Expression’ accessed at http://www.apa.org/topics/lgbt/transgender.aspx
9
American Psychological Association, Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation, 2011
accessed at http://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf
10
UNDP India, Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion’ December 2010
9
Kothi - biological male who shows varying degrees of 'femininity.' Some proportion of Hijras
may also identify themselves as 'Kothis,' but not all Kothis identify themselves as transgender or
Hijras.11
Shiv-Shakthi - males who are possessed by or particularly close to a goddess and whohave
feminine gender expression, typically located in Andhra Pradesh.12
Jogtas/Jogappas: Jogtas or Jopgappas are those persons who are dedicated to and serve as a
servant of Goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and
Karnataka.'Jogti Hijras' is used to describe male-to-female transgender persons who are
devotees/servants of Goddess Renukha Devi. This differs from 'Jogtas' who are usually
heterosexuals and who may or may not dress in woman's attire when they worship the
Goddess.13
Guru/Chela: While some transgender Indians voluntarily leave home to join transgender
communities, many of them are abandoned by their families, who are not accepting of their
child’s transgender status. It is for this reason that they form their own close knit family-like
units, led by a ‘guru,’ - an older leader that acts as a mentor to their younger disciples or ‘chela.’
It is often the case in these communities that the guru takes payment from her chela, in
exchange for providing her with her material subsistence.14 This has led to concerns that some
chela may be at risk of exploitation by their gurus.
D. Background and Issues Faced by Transgender Persons in India
Ostracised from mainstream society and victim of widespread discrimination, India’s
transgender population remains one of the country’s most marginalised groups. It is estimated
that there are between 2-3 million transgender persons living in India, with some calculations
even higher.15
11
Ibid.
Ibid.
13
Ibid
14
Diane P. Mines, brar haraS,hai aohtrohavI hfihbyaD hrevr,hfievrirhiivi aevDohaa ee,hh0202ph001
15
See for example The BBC, India court recognises transgender people as third gender, April 2014 accessed at
http://www.bbc.com/news/world-asia-india-27031180
The Independent, India court recognises transgender people as 'third gender', April 2014 accessed at
http://www.independent.co.uk/news/world/asia/landmark-indian-transgender-law-change-as-court-rules-thirdgender-must-be-recognised-9263813.html
Hindustan Times, ManabiBandopadhyay: India's first transgender college principal, May 2015 accessed at
http://www.hindustantimes.com/kolkata/manabi-bandopadhyay-india-s-first-transgender-collegeprincipal/article1-1351700.aspx
12
10
Transgender persons have been excluded and vilified since the period of the British Raj. Prior to
this, they played a prominent role in the Delhi Sultanate and Mughal royal courts, in particular
under the Delhi Khiljis in the thirteenth and fourteenth centuries, and the Mughals from the
sixteenth to nineteenth centuries.16 Transgender persons – or Hijras - enjoyed influential
positions and were accorded much respect. They were trusted to guard and protect women’s
palaces, as well as serving as watchmen, guards and messengers throughout the palaces and
even advisers to the king.
During the era of the British Raj, however, the perception of Hijras was drastically altered. The
British considered Hijras as ‘a breach of public decency’17 and categorised them as a ‘criminal
tribe’ or ‘criminal caste’ under the Criminal Tribes Act 1871. Section 377 of the Indian Penal
Code18 was used as an instrument of harassment and physical abuse against Hijras and
transgender persons.19These measures lead to the ostracism of the Hijra community, stripping
them of their civil rights and status. Due to severe social and economic discrimination, Hijras
were cut off from society, unable to work and subject to everyday abuse because of their
identities. Indeed, the term ‘Hijra’ came to be used with contempt, as a derogatory term, with
such sentiment still present at times even today.
Despite the denotification20 of Hijras following Indian independence and the passing of the
Criminal Tribes Act 1952, the marginalisation of and systematic discrimination against the
transgender community continued long after the collapse of British rule in India, and is ever
present today.
Widespread and deeply entrenched discrimination has prevented the majority of transgender
persons from accessing education, healthcare, housing and employment, and fuels social
exclusion from the rest of society. Treated as untouchables, many transgender persons in India
have been abandoned by their own families and forced to turn to begging or prostitution.
The team identified a number of human rights violations which are commonly committed
against transgender persons in India. The team set out to determine whether, following the
NALSA judgment, these violations are still occurring in Odisha:
Global Press Journal, Radio Gives Voice to India’s Transgender Community July 2012 accessed at
http://globalpressjournal.com/pt-br/asia/india/radio-gives-voice-india-s-transgender-community
16
Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India University of Chicago Press 2005 p8
17
Preston, Laurence W. 1987. A Right to Exist: Eunuchs and the State in Nineteenth-Century India. Modern Asian
Studies 21 (2): 371–87
18
Criminalising sexual activities "against the order of nature", arguably including homosexual acts
19
Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013 para 18
20
Denotified tribes also known as VimuktaJati
11
Discrimination and Social Exclusion– lack of public sensitisation of transgender issues including
public service providers, discrimination and incidences of physical and verbal abuse on account
of being transgender
Education and Employment – low level of education, financial barriers to education, inability to
access proper employment leading to engagement in begging and sex work.
Health - inaccessibility of HIV treatment, unavailability of Sex Reassignment Surgery (SRS) –
including counselling and hormone replacement therapy, lack of knowledge and accessibility of
contraception and the lack of provision of separate wards and beds for transgender persons.
Living Conditions – inaccessibility of proper housing, lack of inclusion in government housing
schemes, inability to purchase land, inability to rent property
Family Situation – abandonment by family, pressure to marry, guru/chela relationship
Toilet Facilities – lack of access to public toilets, lack of provision of gender neutral/separate
transgender toilets, discrimination in accessing public toilets
Civil status – no provision of ID cards stating transgender status, difficulty officially changing
name/gender in documents such as education certificates, lack of awareness of implications of
doing so
Provision of transgender-specific services (particularly since the NALSA judgment) – whether
new transgender-specific services have been introduced in Odisha since NALSA, transgender
community awareness of the NALSA judgment, implementation of the judgment by the
government of Odisha
IV. LEGAL PROTECTIONS
A. International Conventions and Guideline
India is party to a number of international conventions and agreements which protect the
fundamental rights of all persons and everyone, regardless of their gender. This means that the
protections included in these conventions apply equally to transgender persons in the same
way as they do to males and females. Relevant conventions in relation to transgender rights
include the United Nations Declaration of Human Rights 1948 (UNDHR), International Covenant
12
on Civil and Political Rights 1966 (ICCPR), International Covenant on Economic, Social and
Cultural Rights 1966 (ICESCR), the Yogyakarta Principles on the Application of International
Human Rights Law in relation to Sexual Orientation and Gender Identity 2006 (The Yogyakarta
Principles) and the United Nations Declaration on Sexual Orientation and Gender Identity 2008.
The underlying principle of these agreements is that all human-beings are born free and equal
in dignity and rights, meaning that they have the right to the universal enjoyment of human
rights.21Included in these rights are the right to equality and non-discrimination,22 right to
life,23right to privacy,24 right to freedom from torture and cruel, inhuman or degrading
treatment or punishment,25right to freedom of opinion and expression, right to recognition
before the law and equality of protection before the law26 and the right of self-determination –
the right to freely determine their political status and freely pursue their economic, social and
cultural development.27
In particular, the International Convention on Economic, Social and Cultural Rights also includes
a number of rights which, as we discovered, are not being protected by the Indian Government
in relation to transgender persons. These include the right to social security,28 the right to
undertake work that the individual freely chooses or accepts,29 an adequate standard of living,
including adequate housing and access to food30 and the right to education.31
The Yogyakarta Principles address a broad range of human rights standards and their
application to issues of sexual orientation and gender identity.The Principles seek to provide ‘a
consistent understanding of the comprehensive regime of international human rights law and
its application to issues of sexual orientation and gender identity, in order to promote and
protect all human rights for all persons on the basis of equality and without discrimination.’32
Of particular relevance to the transgender community is Principle 3, which states:
21
See, for example, Article 1 UNDHR
See, for example, Article 2 and 7 of UNDHR, Article 2 ICESCR
23
See, for example, Article 3 UNDHR, Article 16 ICCPR
24
See, for example, Article 17 ICCPR
25
See, for example, Article 5 UNDHR
26
See, for example, Articles 6 and 7 UNDHR, Article 16 ICCPR
27
Article 1 ICESCR
28
Ibid. Article 9
29
Ibid. Article 6
30
Ibid. Aritcle 11
31
Ibid. Article 16
32
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation
and Gender Identity: http://www.yogyakartaprinciples.org/principles_en.htm
22
13
‘Everyone has the right to recognition everywhere as a person before the law. Persons of diverse
sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each
person’s self-defined sexual orientation and gender identity is integral to their personality and is
one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced
to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal
therapy, as a requirement for legal recognition of their gender identity. No status, such as
marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s
gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual
orientation or gender identity.’
The Yogyakarta principles have been endorsed by various UN bodies, Regional Human Rights
Bodies, National Courts, Council of Europe and they are considered to be an important tool for
collating and clarifying the obligations of States to respect, protect and fulfil the human rights
of all persons, regardless of their gender identity.33
Importantly, in the NALSA case, the Supreme Court ruled that the Yogyakarta Principles are
consistent with the various fundamental rights guaranteed under the Indian Constitution and
therefore must be recognized and followed.34
It was evident during the fact-finding interviews that the state is failing to meet many of these
international obligations in relation to transgender persons. The government is systematically
failing to ensure the social and economic security of its transgender citizens, amounting to a
violation of their human rights. Furthermore, other fundamental rights enshrined in the above
named instruments equally continue to be violated, from the right to life, including the right to
health, the right to freedom of opinion and expression and the right to self determination. The
gravity of the consequences resulting from such violations of these fundamental rights were
clearly reflected in the enduring hardship of the transgender group.
B. Constitutional Protections
The Indian Constitution guarantees fundamental rights to every Indian citizen, irrespective of
race, place of birth, religion, caste or gender. Part III of the Constitution, identifies a 'person' or
'citizen' as a rights-holder without reference to sex or gender.35 Thus, by virtue of the fact that a
33
Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013para 23
Ibid. para 53
35
Article 5 of the Constitution identifies the persons who are entitled to be citizens of India. None of the conditions
specified therein require a determinate sex or gender identity as a pre-condition of acquiring citizenship. Therefore
transgender persons are also considered as citizens of India. A citizen is a ‘person’, and not necessarily a ‘man’ or a
‘woman.’ Therefore as transgender persons are, indeed, ‘persons’, it follows that they can be citizens protected by
the Constitution.
34
14
transgender person is a human being, all constitutional rights guaranteed by the Constitution
must necessarily flow to a transgender person. These include equality before law, freedom of
speech and expression and the right to constitutional remedies.
Article 14 of the Constitution guarantees that “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”
Equality requires the full and equal enjoyment of all fundamental rights contained in the
Constitution. Article 14 also carries a positive obligation on the State to ensure equal protection
of law by facilitating social and economic inclusion of marginalised groups.36 As persons
protected by the Constitution, the State has obligations to ensure that transgender persons
may enjoy equal protection of laws under Article 14.
Article 15 - explicitly prohibits discrimination against any citizen on grounds of sex, from which
one can infer includes gender. Indeed, it has been accepted by the Supreme Court that the
term ‘sex’ in the Indian Constitution is not limited to the biological sexes of male or female, but
also to include people who consider themselves to be neither male or female.37
Article 15 also provides that affirmative action be taken for the advancement of ‘socially and
educationally backward classes of citizens.’
Thus it is clear that when transgender persons are discriminated against by state owned
institutions, for example hospitals or the police, and are not provided with equal opportunities
such as access to education or employment, Articles 14 and 15 are violated.
Article 16both prohibits discrimination on the ground of sex in public employment and also
imposes a duty on the State to ensure that all citizens are treated equally in such matters.
Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression.
This includes a person’s right to expression of their self-identified gender. Subject to restrictions
in Article 19(2), the right to freedom of speech and expression means that the person is free to
dress and project their outward personal appearance in the way that they choose. Expression
and presentation of one’s gender-identity therefore must be protected under Article 19(1)(a).38
Article 21– provides that ‘no person shall be deprived of his life or personal liberty except
according to procedure established by law. ’Article 21 includes the right to dignity.39 As gender
36
Ibid.
38
Ibid. para 66
39
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 (paras 7 and 8)
37
15
constitutes the core of one’s sense of being and identity, the legal recognition of gender
identity is therefore part of right to dignity and freedom guaranteed under Article 21. The
Supreme Court recognises that gender identity lies at the core of one’s personal identity,
gender protecting not only males and females, but transgender persons too.
Furthermore Article 21 also protects the personal autonomy of an individual, including the
negative right to be free from interference by others and the positive right of individuals to
make decisions about their own lives, partake in activities of their choosing and express
themselves.40As the self-identification of one’s gender is integral to their personal autonomy,
this falls under the purview of Article 21.
Article 21 also includes the right to health. The right to health and medical care, as integral to
the right to life, has been upheld by the Courts on countless occasions including in the matters
of CESC Ltd. v. Subhas chandra Bose,41 State of Punjab v. Mohinder Singh Chawla, 42 and
Manipur Network of Positive People v. Union of India.43
The fact-finding team discovered that the state is failing to protect transgender persons’
constitutionally protected rights, as outlined above. The team found that the guarantees
contained in the constitution pertaining to equality, discrimination, freedom of expression and
the right to life and dignity are systematically denied to transgender persons living in Odisha.
C. Domestic Case Law and Public Interest Litigation
Illyas and Ors. Vs Badshah Alias Kamla44 (1989) - Madhya Pradesh High Court found that an
eunuch (chela) was entitled to receive property from their guru because the Court accepted
that the community cannot transfer property to anyone outside of the community. In this
ruling, the Court explicitly acknowledged the existence of a distinct transgender community
with its own well established customs that must be respected.
Jayalakshmi v. The State of Tamil Nadu &Ors (2007),45 (Madras High Court) the petitioner, an
Aravani, was harassed and sexually abused by the police. Evidence indicated that while the
petitioner was in police custody, she was subjected to torture by a wooden stick being inserted
into her anus and some police personnel forcing her to have oral sex. The petitioner
subsequently committed suicide by dousing herself in kerosene and settling herself alight. The
40
Anuj Garg v. HotelAssociation of India(2008) 3 SCC 1 (paragraphs 34-35),
1992 I.S.C.C 441
42
1997 2 S.C.C 83
43
PIL No. 13 of 2006.
44
AIR 1990 MP 334
45
W.A. No. 1130 of 2006 and W.P. No. 24160 of 2006
41
16
Court held that the excesses committed by the police led to her suicide. The Court further held
that there was abundant evidence that the police committed drastic inhuman violence on the
body of the petitioner and that it amounted to a violation of her human rights. The Court
ordered the State to pay compensation for the harassment by its police force and also directed
the institution of disciplinary proceedings against the officers.
Faizan Siddiqui vs SashastraSeemaBal46 (2011) – the Petitioner was an intersex woman who
was born male but without male hormones in her body, and so developed like a girl, physically,
mentally and psychologically. At the same time, she had external gonads which appeared like
testes, but no development of any male like sexual characteristics of her external genitalia. At
age 15 she had a vaginoplasty and the testes were removed (gonadectomy), and ever since she
had been taking female hormones and living a normal life as a woman. Her candidature for the
post of Constable (General Duty) Female in the Sashastra Seema Bal was rejected on grounds of
medical unfitness. The High Court of Delhi quashed the rejection of the petitioner’s candidature
on the grounds that it was arbitrary, irrational and illegal.
The Salvation of Oppressed Eunuchs (SOOE) vs The Cabinet Minister, Ministry ofSocial Justice
and Others (2013)47the High Court of Mumbai heard that Eunuchs are forced by their ‘gurus’ to
lead a life of servitude and bonded labour, in violation of the Bonded Labour System (Abolition)
Act, 1976. The petitioner also asked that s.377 be amended and s.375 IPC be amended to
include sexual assaults against eunuchs. The petition further contended that a law similar to the
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, should be enacted to cover
cases of abuse and use of derogatory terms and language against eunuchs. This petition was
withdrawn, however, following the Supreme Court’s decision in the NALSA case. (see below)
WP No. 604 of 2013 by Poojya Mata Nasib Kaur ji Women Welfare Society, the petitioner has
made similar submissions as in the above noted SOOE case and referred to transgender persons
as Kinnars. They prayed to the Supreme Court and the Respondents (Central & State
Governments) to introduce a policy for the upliftment and socio-economic development of the
Kinnar Communities in India.
i)
National Legal Services Authority v. Union of India and Others
On 15 April 2014, in National Legal Services Authority (NALSA) v. Union of India and Others48,
the Supreme Court of India ruled that transgender persons have equal rights as guaranteed by
Articles 14, 15, 16, 19 and 21 of the Indian Constitution. The Court held that the Constitution
requires equal treatment of all people regardless of their gender identity or expression. The
Court also declared that the Centre and State governments must grant legal recognition of
gender identity as male, female or third gender.
46
2011(124)DRJ542
PIL No. 1 of 2012
48
Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013
47
17
The Court further held that Transgender persons should be treated as a third category of
gender and as a socially and economically "backward" class entitled to proportional access to
and representation in education and jobs. The Supreme Court also added that if a person
surgically changes his/her sex, then he or she is entitled to identify as their changed sex and
cannot be discriminated against. The bench clarified that its verdict pertains only to
transgender persons and not to other sections of society like gay, lesbian and bisexuals who are
also considered by some under the umbrella term 'transgender'. 49
The Supreme Court emphasised that transgender persons are part of Indian society and the
government must take steps to integrate and include them.50
The Court made directions as follows:51
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of
safeguarding their rights under Part III of the Constitution and the laws made by the Parliament
and the State Legislature.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the
Centre and State Governments are directed to grant legal recognition of their gender identity
such as male, female or as third gender.
(3) The Centre and the State Governments to are directed to take steps to treat transgender
persons as socially and educationally backward classes of citizens and extend all kinds of
reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance
Centres since Hijras/Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by
Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal
tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral
and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs
in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare
schemes for their betterment.
49
National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012
with Writ Petition No. 604 of 2013)
50
DhananjayMahapatra, Supreme Court recognizes transgenders as 'third gender'
http://timesofindia.indiatimes.com/india/Supreme-Court-recognizes-transgenders-as-thirdgender/articleshow/33767900.cms
51
18
(8) Centre and State Governments should take steps to create public awareness so that TGs will
feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and
place in the society which once they enjoyed in our cultural and social life.
This decision represents a high watermark in the protection of transgender rights in India.
Issues Left Unaddressed by NALSA
While the directions of the Supreme Court are comprehensive and wide-ranging, it can be
observed that they are ambitious in their scope, especially in light of the given timescales. Their
implementation will largely depend on how they are interpreted by the State and Central
governments, suggesting that implementation of the Court’s directions may still take some time
to be realised while the practicalities are worked out.52
Following the deliverance of the NALSA judgment, the Central Government filed a petition
seeking several clarifications/modifications.53
1. Does the ‘third gender’ category include all transgender persons, or only Hijras/Eunuch?
2. The term ‘eunuch’ has been erroneously used by various people as the English equivalent
of ‘Hijras’, which is incorrect. The term ‘Eunuch’ is not synonymous with transgender, and
is actually considered derogatory by many transgender persons.
3. The judgment confuses sexual orientation and gender. At para 107, it states, ‘Even Gay,
Lesbian, bisexual are included by the descriptor ‘transgender’. This is incorrect, as sexual
orientation and gender identity are not the same (see section II above).
4. Only the National Commission for Backward Classes can examine requests for inclusion of
any class of citizens as a backward class. The advice of the commission is ordinarily
binding on the Central Government. The Central Government can, however, reject the
recommendation of the Commission. Therefore should the classification of transgender
persons as an Other Backward Class (OBC) be done suo-motu on the court’s direction, or
carried out as per the established procedure?
5. Transgender persons can belong to different castes, including Scheduled Caste (SC),
Scheduled Tribe(ST) and OBC. “…clubbing all of them and putting them into one category
of OBC might not appear prudent and practical...” and may pose a “practical and political
problem.” The government therefore seeks further clarity from the court as to how to
address this.
52
The Hindu Centre, Rights in Review – The Supreme Court in 2014, p3
http://www.thehinducentre.com/multimedia/archive/02259/Rights_in_Review_-_2259174a.pdf
53
Available at http://orinam.net/content/wp-content/uploads/2014/09/NALSA_UOI.pdf
19
6. The judgement classifies all transgender people as third gender, but does not provide a
proper definition of ‘transgender.’ The government seeks clarification as to the proper
definition.
7. The Supreme Court had asked implementation of the recommendations of the Expert
Committee six months after they were made. The Expert Committee, had, however,
already produced a report prior to the judgment, on 27th January 2014 (available on the
Ministry of Social Justice’s website). The government submits that a number of measures
have been suggested by the Committee and these cannot be implemented within six
months.
The Supreme Court acknowledges the existence of different transgender communities
throughout India in its judgment, yet only refers to Hijras and Eunuchs in its first (and
fundamental) direction. For example, the court acknowledges the struggle of Female to Male
(FTM) transgender persons in para 46 and distinguishes them from Hijras. It is unclear
therefore, whether FTMs and other identified groups are all intended to fall under the ‘third
gender’ category recognised in the court’s first direction.
This issue was raised in Jackuline Mary vs. The Superintendent of Police, Karur54 (2014), and
the Madras High Court confirmed that the right of transgender persons to decide their selfidentified gender, and the governmental obligation to grant legal recognition of their gender
identity, is also available to FTMs.
In terms of implementing NALSA, some concern has been expressed over whether transgender
persons’ self-identification will be enough to warrant legal protection under the third gender
category, or whether they will first have to be officially identified by a designated body e. g., a
regional transgender welfare board. 55 This is not made entirely clear in the judgment.
Indian Case Law post-NALSA
S. Swapna (Transgender): vs The State Of Tamil Nadu56(2014) – the petitioner was a
transgender woman who had undergone SRS in 2011. The petitioner had completed her
Secondary School Leaving Certificate (SSLC) Course during 2006 and Higher Secondary course
during 2008 and, following her surgery, made an application to the third respondent requesting
54
W.P. No.587 of 2014
The Supreme Court NALSA Judgement – where now? A Brief Critique, May 2015 accessed at
http://orinam.net/content/wp-content/uploads/2015/06/25-sc-nlsa-tg-petition-verdict-gap-analysis-wbnujsfnl.pdf
56
W.P.(MD)No.10882 of 2014 and M.P.(MD)_No.1 of 2014
55
20
to correct her name in the matriculation exam certificates This application was rejected by the
third respondent on the ground that prevailing rules did not permit sex and name changes. The
Madras High Court held that the application should have been considered on merits and that
the authorities in a case of this nature must extent their helping hand to a transgender person
rather than denying them relief for technical reasons. It held that the authorities had erred in
rejecting the request made by the petitioner.
A case with highly similar facts was heard in Madras High Court - K. Prithika Yashini vs 4 The
Controller of Examination 57(2015). In this case, the Court directed that the appropriate
changes should be made in the petitioner’s records within a period of 8 weeks of the petitioner
submitting fresh representations to the respondents.
D. Relevant Provisions of the Indian Penal Code (IPC)
Section 153A IPC
In the instance of discriminatory remarks made against transgender persons, if the person is a
Scheduled Caste or Scheduled Tribe, then Scheduled Castes and Scheduled Tribes Prevention of
Atrocities Act 1989 will be applicable. Alternatively, the Protection of Civil Rights Act 1955 –
prohibiting discrimination on the grounds of ‘untouchability’ and punishing the practice of
untouchability- may be applicable.
Moreover, Section 153A IPC makes it an offence to promote enmity between different groups
on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial
to maintenance of harmony. This includes by words or any prejudicial act. Thus, verbal abuse or
discriminatory behaviour towards transgender persons can constitute an offence under s.153A
IPC.
Section 317 IPC
Abandonment of child is a punishable offence under Section 317 IPC if the child is abandoned
under the age of twelve years. As the abandonment of transgender children takes place usually
between the age of twelve & eighteen years, it would be beneficial to the transgender
community (as well as any child of any gender over the age of twelve years who is
abandoned)for the age of the qualifying child for this offence to be raised to at least sixteen
years.
Section 375 IPC
57
W.P.No.7210 of 2015
21
Section 375 prohibits rape, however, as the provision currently stands, rape only constitutes an
offence if committed against a woman. This means that this provision only provides protection
to women, failing to recognise the common occurrences of rape of transgender persons and
men. The word ‘rape’ in Section 375 of Indian Penal Code (IPC) should include all sexual crimes
against all persons. .
The Criminal Law Amendment Act 2013 s.354A expressly includes offences of sexual
harassment, but again only protects women. This is also true of s.354B – the offence of assault
or use of force with intent to disrobe a woman. This section also fails to protect transgender
persons.
Section 377 IPC
Sec.377 prohibits the ‘unnatural offences’ of voluntary carnal intercourse against the order of
nature with any man, woman or animal. As noted above, it has been historically invoked as an
instrument of abuse against transgender persons in India.
In 2009, a landmark judgment was handed down by the Delhi High Court in the case of Naz
Foundation Vs NCT Delhi58holding that s.377 violated Articles 14, 15 and21 of the Indian
Constitution and Article 2(1) of the ICCPR (International Covenant on Civil and Political Rights).
The decision brought Indian jurisprudence into conformity with international law by
decriminalising all consensual same sex activity between adults.
The Court held that the right to health is contained in the right to life under Article and that
s.377 is an impediment to public health because it hinders HIV-prevention efforts.
In a curative petition, in the case of Suresh Kumar Koushal v Naz Foundation and others,59 on
11 December 2013, the panel of two Supreme Court judges overturned the High Court’s
previous decision. The Supreme Court held that the decision of Delhi High Court had been
‘legally unsustainable’60 as only Parliament could make and unmake laws, not the courts. The
Supreme Court found that Section 377 IPC does not violate the Constitution and dismissed the
writ petition filed by the Respondents.
The decision of the Supreme Court was a detrimental retreat in the law for the transgender
community, many of whom identify as homosexual. Despite the fact that its later judgment in
National Legal Services Authority recognises transgender persons as having legal rights
protected by the Indian Constitution, this decision remains contradicted by Suresh Kumar
58
160 Dehli Law Times 277
Civil Appeal No.10972 of 2013
60
Ibid. para 54
59
22
Koushal v Naz Foundation and others which may still allow for the arrest and prosecution of
transgender adults who have consensual gay sex.
It is interesting to observe that the Supreme Court’s judgment in Suresh Kumar Koushal v Naz
Foundation and others allowed for the categorisation of homosexual acts as ‘against the order
of nature’ by relying on a binary notion of gender – i.e. what is ‘natural’ is intercourse between
a man and woman. This binary presumption – that only two genders exist – completely
contradicts its judgment in National Legal Services Authority which recognises the rights of the
third gender. 61
The question therefore remains whether the NALSA judgment will have any effect on the
Koushal ruling. The Supreme Court in NALSA acknowledged that s.377 IPC has historically been
used as an instrument of harassment of transgender persons,62 but declined to comment
further on the provision in light of the Koushal judgment. However, the inherent contradiction
between the two cases suggests that they cannot simultaneously stand as good law.At para 20
in the NALSA judgment, the Supreme Court states:
‘Each person’s self-defined sexual orientation and gender identity is integral to their personality
and is one of the most basic aspects of self-determination, dignity and freedom’
The Supreme Court’s recognition that gender identity and sexual orientation can be read into
the Constitution provides a strong basis with which to question the reasoning behind Koushal.
61
The Lawgical, Transgender, a New Gender: Recognizing the T in LGBT accessed at
http://thelawgical.blogspot.in/2014/04/transgender-new-gender-recognizing-t-in.html
62
23
V. FACTS
A.
Name
Meeting with Transgender Group in Cuttack
On Monday 20th July 2015, the fact-finding team met with a group of transgender community
members living in Cuttack. The transgender community in Cuttack is smaller in number and
Age
Gender
Education Occupation
SC/ST
Ration Card
ID Card HIV+
Mithi Sahoo
30
Transgender 10th Pass
Begging
No
No
Yes
Yes
Suman
Mohanty
27
Begging
No
No
No
No
Prachi Kinnar
23
Begging
No
No
Yes
No
Ranjita Kinnar
26
Begging
No
No
Yes
No
Sofia Kinnar
22
Begging
No
No
Yes
No
somewhat less visible than in Bhubaneswar. The group informed us that to their knowledge,
there are 25 transgender persons living in Cuttack. They also informed us that of those 25, 7
persons are living with HIV (28%).
Table of interviewed respondents:
In Cuttack, the team travelled to PHD Colony, Near Matrubhawan School, Sankarpur, P.S
Badambadi in central Cuttack. This area is known as a local business hub. We spoke with a
group of five transgender persons, although there were two or three others present at the
address who did not speak with us. We spoke with Mithi Sahoo, a guru, and four of her chela.
As is shown in the table below, the ages of the participants ranged from 22 years to 30 years.
The group were each interviewed individually. The interviews consisted of questions
surrounding the issues of discrimination, education and employment, health, living conditions,
24
family, toilet facilities and transgender-specific services in Odisha (particularly in light of
NALSA).
Discrimination and Social Exclusion
The respondents were asked whether they had experienced discrimination based on their
gender identity. They were also asked about public perception of transgender persons in their
area.
Mithi did not share any incidents of discrimination that had happened to her personally, but
she did share an incident that had involved a friend of hers, Sonny Kinnar (22 years). Sonny was
attending the Medical Campus ART Centre near Tarini, Mandir, Mangalabag. She states that a
medical worker named Pradeep Sahoo verbally abused her and then attacked her with a pair of
scissors. She sustained minor injury as a result. Mithi informed us that the accused medical
worker already had a number of allegations against him prior to this incident, and as a result he
has been asked to stop working. An FIR no.0048 was filed at Mangalabag Police Station on 8th
March 2015 (see Annexure 1).Sonny has not heard any news of the investigation from the
police since she filed the complaint. The group suspect it has been forgotten about.
Suman shared an incident of discrimination which occurred at a tollgate in Cuttack, around
30km away from the respondents’ residence. This was an area that some of the respondents
would go begging. Suman described a man who near the tollgate who was known amongst the
transgender community to be transphobic. The man had attempted to sexually assault other
transgender persons she knows in the area. One evening when Suman was begging, the man
approached her and assaulted her with an iron rod. Suman did not report the incident to the
police. When we asked why, she stated that the police do not understand transgender persons
and she knew reporting to them would be futile. She stated that she has stopped begging at
this tollgate as she fears he will attack her.
Prachi shared an incident that occurred about 3 months ago at Cuttack Railway Station. She was
at the station with five or six friends, and a man there started verbally abusing them. Prachi and
her friends threatened to report him to the police, after which he apologised.
The respondents were asked to describe public perception of transgender persons generally.
Mithi stated that 70% of the time, the public were generally accepting and did not harass them.
25
She commented that she thinks public perception has improved since the NALSA judgment. She
stated that ‘Before the judgment, we were treated as if we were not even human beings. Since
the judgment, there has been a slow acceptance that we are human beings.’ The other
respondents stated that they generally had no problems with the public. However, as is
demonstrated below, they identified a number of areas in which they face issues on account of
being transgender e.g being denied the rental of property and employment opportunities. The
team observed that perhaps the group were unaware that, as well as harassment and abuse,
this kind of exclusion from mainstream society also constitutes discrimination.
It was clear that any change in public perception was down to the judgment only and not
because the state has adopted any measures with this aim. The state has taken no steps to
raise awareness of transgender issues amongst the general public or introduce sensitisation
programmes, despite the fact that this was included in direction 8 of Supreme Court’s judgment
in NALSA. Furthermore, direction 9 required the government to take measures to assist
transgender persons in regaining their respect and place in the society. Again, no such
measures have been taken. This failure serves to undermine the right to be free from
discrimination, the right to freedom of expression and the right to live with dignity, all
protected by the Constitution of India.
From the left: Mithi Sahoo,
PrachiKinnar, Sevati Soren,
Sarah Crowe, Sofia Kinnar,
RanjitaKinnar
26
Health
Apart from the incident mentioned above concerning Sonny Kinnar, the respondents were
positive about the behaviour of medical staff towards them.
HIV Services - As noted above, the group informed us that of the 25 transgender persons living
in Cuttack, 7 of them have been diagnosed as HIV positive. Only one of the respondents we
interviewed, Mithi, was HIV positive. She receives Anti-Retroviral Therapy (ART) at the public
hospital and does not have to pay any fees. She stated that there are no transgender specific
HIV services in Odisha. However, she has no problem in accessing ART that is available at the
public hospital.
Mithi stated that of all of the HIV positive members of the transgender community in Cuttack,
she was the only one receiving Madhu Babu Pension Yojana (MBPY). The other HIV positive
transgender community members do not receive it as they do not have a Bank passbook. The
process of applying for MBPY is very burdensome. Applicants must have a bank account and file
their application at the Gram Sabha. This dissuades many people with HIV from applying, as
they are worried about confidentiality issues. The state should have a process in place which is
more sensitive to the needs of PLHIVs, in particular transgender PLHIVs. Not all transgender
persons have been issued with an ID card, so the prospect of submitting a successful application
for MBPY is low.
The government has ignored direction 4 of the Supreme Court’s judgment in NALSA, in which it
directed states to introduce separate HIV servo-surveillance centres for transgender persons.
SRS - Unlike in some states such as Tamil Nadu and Karnataka, Odisha does not provide SRS in
public Hospitals. This means that SRS is only available in private Hospitals. In Odisha, two
private Hospitals currently provide SRS, but there is little or no accompanying counselling –
crucial to the successful performance of SRS. Furthermore, it is so expensive that most of the
respondents could not afford to pay for it. Mithi underwent SRS in January 2015. She stated
that she could not access SRS in Odisha (because of cost) and had to travel to Bihar to have the
operation, which is comparatively cheaper than Odisha. The operation cost her Rs.25, 000/- in
Bihar, whereas in Odisha, it costs up to Rs.80, 000/-. The other respondents had not undergone
SRS. They all stated that they would like to have SRS, but they cannot afford it. They stated that
if it was provided by the government then they would undergo the procedure.
Direction 6 of the Supreme Court’s judgment in NALSA directs the government to take proper
measures to provide medical care to transgender persons. For many transgender persons,
undergoing SRS is an integral part of their transition and is necessary for their mental wellbeing.
27
Furthermore, the inaccessibility of SRS to a transgender person seeking to undergo this
procedure can be said to undermine their right to live with dignity and their right to health, as
protected by Article 21 of the Indian Constitution.
Separate Beds/Wards – all of the respondents complained that there are no separate wards or
beds for transgender persons in public Hospitals. This means that they have to be referred to
either the male or female ward, neither of which they are comfortable in.
Mithi stated that her friend was admitted to a female ward, and the other female patients in
the ward cooperated. However, she stated that transgender women do not feel comfortable in
the female ward. Respondents in other groups shared that often females are not comfortable
with transgender persons in the same ward. All of the respondents stated that the government
should provide separate wards and beds for transgender persons. Mithi suggested that at least
two or three separate beds specifically for transgender persons should be made available.
The state’s failure to provide separate hospital beds/wards for transgender persons defies
direction 6 of the Supreme Court’s judgment. It undermines transgender individuals’ right to
dignity and right to health contained in Article 21. Furthermore, it could be said to produce a
discriminatory effect for transgender persons, as, being forced to stay in an inappropriate ward,
they do not receive the same quality of care as a cisgender person. This undermines Article 15
of the Constitution, which protects citizens from discrimination on grounds of gender.
Contraception – all of the respondents stated that they were aware of how to use
contraception. They also stated that they had no problems in accessing contraception.
None of the group members had a ration card, meaning they receive no assistance from the
government in maintaining adequate nutrition.
Education and Employment
Most of the respondents had achieved10th pass, completing high school. One respondent,
Suman, had achieved 9th pass. None of the respondents had received further education. Prachi
stated that she could not undertake further education because of financial barriers, while Mithi
stated that she did not want any more education.
All of the respondents interviewed engaged in ‘train begging’ as their occupation. They stated
that they earn around Rs. 5000/- a month or Rs.100-200/- per day begging.
All of the respondents were unhappy that they were begging as their occupation. Suman and
Sofia stated that they did not want to be begging, but they were too afraid to apply for other
jobs because of public reaction towards them and the fact that society are not generally
28
accepting of them. The other respondents agreed. There was a consensus amongst the group
that they did not want to beg, but needed help getting into other employment.
Suman expressed her anguish at being unable to access proper employment and being stuck in
a life of begging. Sofia also cited this is one of the biggest issues faced by transgender persons,
stating that transgender people all have skills and talents, and that they should be able to fulfil
their potential like anyone else.
Indeed, each of the respondents have their own aspirations. Sofia aspires to be a dancer, Prachi
dreams of working for the police and Ranjita would like to open her own business. However
they do not have the skills, in some cases the education, the capital or even the confidence to
begin to pursue these goals.
The Supreme Court’s judgment made a number of directions aimed at facilitating the economic
inclusion of transgender persons. In direction 3, it required the Centre and State governments
to treat transgender persons as socially and educationally backward classes of citizens and
extend all kinds of reservation in cases of admission in educational institutions and for public
appointments. Furthermore, in direction 7, it required the introduction of social welfare
schemes for the betterment of transgender persons. The Government of Odisha has taken no
such steps as required by the Supreme Court. Transgender persons continue to struggle to find
employment and receive no assistance from the government in any form. It is clear that stigma
continues to play a large part in preventing transgender persons from finding work, yet the
government has taken no steps to curb discrimination by employers. This fails to protect their
rights under Article 15 to be free from discrimination. Furthermore, being forced to carry out
undignified professions for want of an alternative also undermines the Article 21 guarantee to
living life with dignity.
29
From the left: Sevati Soren,
Sarah Crowe, Mithi Sahoo,
Suman Mohanty
In April, the group established their own self-help organisation named BahuCharamata
Transgender Group, although it has not been formally registered. This is a group for
transgender persons and meetings are held every month in Cuttack. Mithi is the president of
the group and there are currently 15 members. Every month, the group discusses issues and
plans for the future. Each member saves Rs 600 and brings the money to the meetings. So far,
the money has been deposited in a bank account but not yet invested. The SSG group plans to
buy land or an office/community hall space where they can hold meetings and activities for
transgender persons in the community. They plan to open a dance school, as one of their
members is a trained, state level dancer. They wish to create a space where they can carry out
dance training, art teaching and drawing and helping handicapped people. This presents hope
for some of the members to stop begging and start their own business. They hope that once
they raise the funds, they are not prevented from pursuing the project by being denied the
ability to purchase a location. They further hope that the project will be welcomed by the public
and not shunned.
Housing
The respondents stated that it was difficult for them to find a place to live as no one wanted to
rent out property to them. They further said it was difficult for them to purchase land. In both
30
situations, they have faced discrimination on account of being transgender. Suman stated that
one of the biggest issues affecting transgender persons in Odisha was lack of access to land.
They receive no funding from the government for their housing and have no access to
government housing schemes. The group had been in contact with HRLN regarding this, and
would like to file a petition to the government regarding access to support through Rajiv Gandhi
Awas Yojana and Mo Kudia Yojana.
The state has taken no steps to protect transgender persons from the discrimination they face
in trying to find a place to live. This undermines their Article 15 right to be free from
discrimination. Furthermore, despite being directed by the Supreme Court to include
transgender persons in social welfare schemes, the state has taken no measures to ensure that
transgender persons have proper access to housing.
Family
When asked about their relationships with their biological families, the respondents gave a
mixed response.
Mithi and Suman have good relationships with their families, who are accepting of their
transgender status. Sofia said that she has a good relationship with her family, but when she
visits them she wears less feminine clothes, such as a t-shirt, because her family are worried
about what society will think. Prachi and Ranjita’s families are not accepting of their
transgender status and they have no relationship. They both left their families two years ago to
join Mithi as chelas.
None of the respondents who were in contact with their families felt pressurised to get
married.
Toilet Facilities
The respondents informed us that there are no separate gender neutral or transgender toilets
in Cuttack or Bhubaneswar, and did not know of any separate toilets anywhere in Odisha.
The respondents stated that they currently access female public toilets. While they have not
had any problems or been subject to harassment, they are still not comfortable with using the
female toilets.
The failure of the state to provide separate, gender neutral public toilet facilities ignores the
Supreme Court’s directions. Direction 6 specifically requires the state to provide transgender
persons with separate public toilets. This failure also undermines the right to dignity protected
by Article 21 of the Constitution.
31
Civil Status
As shown in the above table, all but one respondent had been issued with ID cards, specifying
their gender as ‘other.’ However, when questioned as to whether they had changed their
names and gender status on any official documents such as education certificates, all
respondents stated that they had not tried to. It was clear that they were unaware of the
implications of not changing their certificates, for example in applying for jobs in future.
Transgender-specific services in Odisha (post NALSA)
When asked about the NALSA judgment, Mithi, the most senior of the group, stated that she
did not know anything about the judgment other than that ‘now we are citizens of India.’ Other
respondents expressed similar views stating that they know that ‘now we have our own identity
in society.’ One respondent, Suman, stated that she knew nothing of the judgment. No one in
the group knew of the implications of the judgment, and what legal recognition of their third
gender status actually means. Further, none of the respondents were aware that the
government of Odisha has been directed to provide a number of transgender-specific services,
and its failure to do so is in violation of the Supreme Court’s directions.
The team considered the low awareness of the impact of the NALSA judgment and the
implications of their status amongst the group to be worrying, as they are very much unaware
of their rights and entitlements. It was suggested to the group that HRLN could hold a training
session/workshop for transgender persons in order to remedy this. It was further suggested
that HRLN can assist with applying for jobs and changing their names/gender in official
documentation and school certificates. This was met with a positive response from the group.
32
Further comments
It can be said that the group were not highly engaged with transgender issues, with low
attendance at meetings with other transgender community members in the area, and a lack of
knowledge of their rights and entitlements. In general, the group were not as responsive as
other groups we met with, and the team sensed a certain reluctance to disclose incidents of
stigmatisation and discrimination. This could be due to the fact that no such incidents have
occurred. However, based on responses in the following two meetings of the fact-finding
mission, it does not seem likely that this is the case. Past experience of discrimination and
trauma can result in feelings of shame and fear, which can then act as barriers to disclosure.
Furthermore, recurrent stigmatisation can become ingrained in a person’s expectations of
societal behaviour, meaning that they may not even be aware of how to recognise
stigmatisation when it is directed towards them
SUMMARY OF FINDINGS
-
-
-
-
-
No transgender-specific HIV services have been established in Odisha. Free
ART is available and accessible in public hospitals. Hospital staff seem
generally sensitized in Cuttack.
Some transgender persons living with HIV cannot access MBPY because they
do not have a passbook.
No separate gender neutral/third gender hospital wards or beds have been
provided in government hospitals
No separate gender neutral/third gender public toilet facilities have been
provided
Access to SRS and counseling is very difficult due to cost. No SRS treatment is
provided by the government.
Public attitude is improving, but stigma is still preventing transgender persons
from purchasing land and renting properties. Transgender persons in Cuttack
have no access to government housing schemes.
The primary occupation of transgender persons in Cuttack is begging. Others
also engage in sex work. Transgender persons are receiving no livelihood
support or support to help them into other employment.
While police harassment does not appear to be an issue according to this
group, it is clear that group members avoided reporting incidents of
discrimination to the police as they feel the police does not understand or
sympathise.
The group have not formally changed their name/status and are not aware of
the implications of doing so
The group did not know their rights and entitlements as pronounced in the
NALSA Judgment.
33
.
B.
Meeting at the Department for Social Justice and Empowerment
On Tuesday 21st July 2015, the team attended a meeting at the Department for Social Justice
and Empowerment at Capital Hospital, Bhubaneswar. The meeting was between
representatives from transgender communities of several districts of Odisha and the
department. In attendance at the meeting were around 23 representatives from Odisha
transgender communities and the Secretary and Director of the Department of Social Justice
and Empowerment. There were also representatives from HIV Alliance India, SAATHI, All Odisha
Eunuch and Third Gender Association (AOETA) and our fact-finding team representing HRLN.
The purpose of the meeting was to bolster a dialogue between the transgender community in
Odisha and the state government. This was in order to express concerns and grievances, as well
as to catalyse the establishment of some kind of government transgender welfare board or
committee. The establishment of such a board in Odisha has been in the pipeline for at least
three years, but has failed to materialise.
The representatives invited the government to address the following key issues:
34
1. Education – the need to ensure transgender persons can make choices about their
education and receive an education of a high enough level to allow them to access
meaningful employment.
2. Employment opportunities – the need to assist transgender persons out of begging and
sex work and into other employment. The majority of transgender persons begging and
engaging in sex work do not want to be doing these jobs. But what, they ask, is the
alternative?
3. Health – including access to free SRS, HIV treatment and separate beds/wards. It was
highlighted that some states such as Tamil Nadu and Karnataka provide free SRS,
whereas in Odisha, not only is it not free but it costs double if the person is HIV positive.
Furthermore, it was highlighted that in Odisha, the cost of SRS will differ depending on
the doctor. It was suggested that national/regional guidelines for SRS were necessary. It
was emphasised that many transgender persons cannot afford to pay for a separate bed
in a private hospital.
4. Housing and land – difficulty in accessing Biju Paka Ghara Yojana, difficulty in purchasing
and renting land/property.
5. Awareness – of the NALSA decision amongst transgender persons and awareness of
transgender issues amongst members of the government and public.
6. Access to social welfare schemes – transgender persons living in Odisha has no access
to government social welfare schemes.
7. Livelihood support - transgender persons living in Odisha are not provided with
livelihood support, meaning they are trapped in lives of begging and prostitution, unable
to make the transition into other employment.
8. Advocating a safe space for transgender persons – e.g a shelter/community centre,
especially due to the level of migration of transgender persons to Bhubaneswar from
other areas of Odisha.
9. Advocating the establishment of a ‘third gender’ desk at police stations and providing
further training to sensitise the police.
10. Provision of ID cards to all transgender persons – difficulty of opening bank accounts,
accessing government schemes without ID cards.
11. The need to conduct a proper estimation of the number of transgender persons living in
Odisha. This issue was highlighted a number of times, and is considered to be important
as potential factor to give weight to transgender persons’ struggle for equal access to
housing, employment and government schemes.
12. Public toilets – the need for separate gender neutral or third gender toilets
35
10 representatives were appointed to engage in future meaningful discussions with the
state. This included representatives from the transgender community and from other
organisations present. Sarita Barpanda and Sevati Soren were included as representatives
from HRLN.
Following the discussion of the above issues, a government representative proposed the
following measures which could potentially be provided by the state government of Odisha:

Financial support for transgender parents with children

Financial support for transgender persons studying in classes 8-10

Financial support for transgender persons pursuing higher studies within India
beyond class 11

Skill development training

Loan of up to 5 lakh, with government subsidy of up to 2 lakh

National pension scheme for transgender persons over 60
The director of the Department of Social Justice and Empowerment insisted that his
department would make their best efforts to implement the above proposals, but also stated
that this was just the beginning of a process which would take considerable time.
He also emphasised that the appointment of the 10 representatives was merely to engage in a
dialogue with the government, and did not constitute the establishment of any type of
transgender board or committee.
It should be noted that other states in India such as Tamil Nadu and Maharashtra have their
own transgender welfare boards, designed to ensure that transgender persons’ needs and
entitlements are met.The government of Odisha, however, is still refusing to commit to the
establishment of a similar board in Odisha.
36
C.
Meeting with Transgender Group in Bhubaneswar
On Wednesday 22nd July 2015, the fact-finding team met with a group of transgender
community members living in Bhubaneswar. The group are living at Palashpalli, Lane 12,
Bhubaneswar. The group consisted of 7 respondents. According to the group, they believe
there are around 486 transgender persons living in Bhubaneswar. In the absence of a proper
estimation, however, it is impossible to be certain of the true number.
As is shown in the table below, the ages of the respondents ranged from 20 to 31 years. Meera
and Sadhana are both gurus. The other respondents are their chela.
The group were also asked questions covering the same themes as discussed with the group in
Cuttack, namely discrimination, education and employment, health, living conditions, family,
toilet facilities and transgender-specific services in Odisha (particularly in light of NALSA). In
general, the team found the group to be more responsive and vocal about their issues than the
Cuttack group, and more willing to provide examples.
Discrimination and Social Exclusion
37
Name
Age
Gender
Education
Occupation
SC/ST
Ration
Card
ID
Card
Rachona
Kinnar
22
Transgender
10th Pass
Begging
No
No
Yes
Swati
Kinnar
28
Transgender
10th Pass
Begging
No
No
Yes
Chunki
Kinnar
20
Transgender
10th Pass
Sex Worker
No
No
No
Pinky
Kinnar
29
Transgender
10th Pass
Sex Worker
No
No
Yes
Hudhud
Kinnar
26
Transgender
10th Pass
Begging
No
No
No
Meera
Parida
31
Transgender
BSW
Social Work
No
No
Yes
Sadhana
Mishra
29
Transgender
MSW, MBA
Social Work
No
No
Yes
The respondents were asked whether they had experienced discrimination based on their
gender identity, and how the public perceived transgender persons in Bhubaneswar.
All of the respondents agreed that the general public are generally disrespectful towards them
because they are transgender, and that going out in public often invited verbal abuse.
Sadhana described going to a market or shopping mall as a difficult and taxing experience for
her and her transgender friends, as people shout derogatory terms at them such as ‘Mychia’,
‘chaka’ and ‘hijra.’ She said ‘we are not respected as normal human beings.’
Meera and Sadhana expressed their unhappiness over not being included in government
schemes such as employment, livelihood or housing schemes. They also expressed their
frustration over the fact that the transgender community is hardly ever invited to government
meetings. They feel they have no voice and no representation in government decision making
processes. They want there to be transgender representation in all government departments.
Meera commented, ‘male and female representation are balanced, so why not third gender
also?’
38
Rachona described an incident where she was travelling in a shared auto rickshaw. She told us
that she has to take a shared auto because it substantially cuts the fare. Due to her low income
from begging, she cannot afford to take one herself. She told us that on one occasion, the
persons she was travelling with started demanding money from her. When she refused, they
sexually abused her. Now she is afraid to travel in auto rickshaws. When the team asked her if
she had reported this incident to the police, she told us that the police do not understand and
simply would ask ‘why are you sharing an auto instead of taking it yourself?’
Huhdhud also commented that she is constantly tormented by members of the public. She
described going to hotels and nobody wanting to sit near her. She felt isolated in public
gatherings and would never venture out alone in the public due to fear of the crowd who
stigmatised transgender persons.
For Meera, public perception of transgender persons still posed one of the biggest issues. She
told us, ‘I want to live in a healthy environment without stigma and bad reactions from
everyone. I just want a positive atmosphere to live in, without discrimination.’ Sadhana added
‘We have the right to live a dignified life.’
The group also described a number of instances of discrimination in relation to accessing
housing, employment, health and more (see below).
It was clear that the government has taken no steps to improve public perception of
transgender persons or to curb discrimination. It has been highlighted that the Supreme Court
made specific directions to the government to remedy the social exclusion of transgender
persons. As noted, the failure to implement these directions serves to undermine the right to
be free from discrimination, the right to freedom of expression and the right to live with
dignity, all protected by the Constitution of India.
Health
The group informed us that there are currently 3,700 transgender persons are living with HIV in
Odisha.
HIV Services – One respondent in the group disclosed that she is HIV positive, but wished her
identity to remain anonymous. The group confirmed that there are no transgender-specific HIV
services in Odisha. Meera told us that transgender persons can access treatment for HIV
however. She described this as the only health service available to transgender persons
(meaning that there are no other free services and no separate beds or wards). The group told
us that there are/have been specific HIV services for sex workers and migrants. Why then, they
asked, is there no specific service for transgender persons?
39
Meera also commented that transgender persons living with HIV in the area are not getting the
benefit of MBPY. This is for a number of reasons, including the burdensome application
procedure described above, and the fact that many transgender persons do not have a bank
account or an ID card.
The group confirmed that the government has ignored direction 4 of the Supreme Court’s
judgment in NALSA, in which it directed states to introduce separate HIV servo-surveillance
centres for transgender persons, undermining their right to health.
SRS -One respondent informed us that she went to a hospital to enquire about having SRS
treatment and the hospital informed her that the cost would be Rs.80, 000/-. Such a price is
well beyond what this group can afford to pay for the treatment.
The group confirmed that there are no counselling of hormone therapy services accompanying
SRS in Odisha and that this, combined with the high costs, forces transgender persons in Odisha
to seek treatment in other states.
Separate Beds/Wards – the group confirmed that there are no separate genders neutral or
third gender beds or wards in hospitals in Odisha. They told us that they are not comfortable in
the men’s ward, while often female patients are not comfortable with them in the female ward.
Sadhana described the problem in further detail. She told us that if a transgender person goes
to a public hospital, the doctor will assign them to ever a male or female ward. For the reasons
outlined above, neither the male or female ward is acceptable for many transgender patients.
The only alternative is to go to a private hospital, where they have to pay Rs. 500-600/- for a
separate cabin. Due to their low incomes, they cannot afford to pay such prices. Furthermore,
she told us, it is a long process to apply for a separate cabin; it must be approved by the chief
medical officer. The process is difficult and humiliating, especially when the person is unwell.
As noted, Direction 6 of the Supreme Court’s judgment in NALSA directs the government to
take proper measures to provide medical care to transgender persons, including the provision
of separate facilities. The inaccessibility of SRS and lack of separate facilities in hospitals for
transgender persons can be said to undermine their dignity and right to health, as protected by
Article 21 of the Indian Constitution.
Contraception – worryingly, the two respondents who are sex workers told us that it was very
difficult for them to access condoms. They informed us that the government does not provide
any free condoms, and the government system whereby they could buy cheaper condoms (for
Rs. 3/-) from a dispenser (therefore not having to interact with staff in a shop) had been
discontinued. For this reason, they have to pay for their own condoms now. They described the
40
humiliation and embarrassment of having to buy condoms in medical shops and shopping
centres because of reactions from the public. They told us of how they felt shame buying
condoms, and how people questioned why they wanted to buy them. It is a difficult experience
for them to buy condoms face to face with shop staff. Furthermore, having to purchase
condoms poses a considerable financial burden. One respondent told us that she may make
Rs.300-400 from a night of sex work, but then have to pay Rs.100-200 for condoms, which she
can barely afford.
It is the role of the government’s State Aids Control Society to provide condoms in order to
prevent the spread of STIs and HIV/AIDs. However, for at least two months before the factfinding mission, there has been a stock out of condoms in Odisha, resulting in fear amongst the
transgender population with regards to the spread of HIV/AIDs.
This is a violation of the right to life and health as protected under Article 21.
Sensitisation of medical staff – a few of the respondents commented that hospital staff and
doctors do not understand transgender people and are disrespectful towards them. One
respondent told us that she went for a check-up but found it extremely difficult to share her
problems with the doctor.
The group told us that a friend of theirs, who is transgender and HIV positive, went to have a
chest x-ray at the public hospital. The hospital worker carrying out the x-ray told her that he
would not carry out the x-ray until she opened up all of her dress and showed him below her
waist. After she complained of this harassment to the hospital, the worker wrote her a letter of
apology.
None of the group members had a ration card, meaning they receive no assistance from the
government in maintaining adequate nutrition.
41
From the left: Sarah Crowe, Rachona Kinnar, Sadhana Mishra, Meera Parida, Chunki Kinnar, Pinky Kinnar
Education and Employment
Most of the respondents had achieved10th pass, completing high school. Two respondents had
completed further education.
Three of the respondents interviewed engaged in train begging as their occupation and two
engaged in sex work. Two respondents, Meera and Sadhana have social work degrees and carry
out a lot of work on transgender issues in Bhubaneswar. These two respondents were also
present at the government meeting the day previously (see above).
All of the respondents expressed sadness and frustration at the lack of employment
opportunities available to them.
Swati used to work in building and construction when she was 16/17 years old. However, due
to her transgender identity, she suffered discrimination and abuse from her employer, the
contractor, and the house owners of the buildings she was working on. Her employer also did
not pay her. It is for this reason that she had to enter train begging. Swati told us that it was a
struggle to depend on begging as it does not provide a proper livelihood. She said that the
42
money she makes is not sufficient to cover her basic needs, and even at times affording food is
a struggle.
Chumki told us, ‘we want to find jobs, but employers are not respecting us or allowing us to
work. They say “you are a hijra, you are not able to work.” We do not want to beg in the train or
sex work, but we have no alternative.’
Pinky is a sex worker. She too described the struggle to earn enough money from engaging in
this kind of work. In addition, she told us that she is often harassed by the police and by
members of the public when she is on the streets working.
She described an incident when she was standing on the street one night looking for work, and
4-5 men approached her and sexually abused her, forcing her to have sex. She told us that she
was physically injured after the incident and still suffers from the injury. When asked if she
reported this rape to the police, she shook her head and said ‘the police don’t understand.’ She
further commented that not only is sex work difficult to make a living from, but it is also
dangerous and potentially life threatening.
The group also told us about an initiative introduced by the Police Commissionerate of
Bhubaneswar, recruiting transgender community members as volunteer traffic constables. They
assist with directing the traffic for around 2 hours per day, 3-4 days a week. The team felt this
was a positive initiative aimed at including the transgender community in society. However,
these positions are without pay, which does not assist the volunteers in their struggle to make
ends meet. Furthermore, the group told us that while they are trying to participate in society
and fulfil their social responsibility in these roles, they are often met with abuse from the
public. The group told us that people shout verbal abuse, ask for their phone numbers and do
not take them seriously, asking ‘you are a hijra, why are you controlling the traffic?’ This further
demonstrates the need to address issues of stigmatisation and prejudice amongst the general
public.
There was a consensus amongst the group that they did not want to beg or engage in sex work,
but felt there was no alternative for them. This group, too, had many aspirations and ideas for
their futures.
One respondent mentioned the idea of the government providing them with auto rickshaw
driving training, and being included in part of the pink auto rickshaw scheme set up in Odisha.
The drivers of the pink autos have been specially vetted – all are married, live with their families
and have been given specific training on how to interact with women passengers and respond
43
to emergencies.63It would be logical to include transgender women as drivers in this scheme.
Furthermore, this way, they would be less likely to suffer incidents of sexual harassment by
male passengers and would earn a decent living.
Another respondent said that she would like to train to work in beauty parlour. The recurring
sentiment in both groups is that they all have aspirations and the strong desire to stop begging
and sex work. What they need, however, is to be given the tools, such as skill development
training and guaranteed reservations in certain jobs, to help them achieve these goals.
As noted, the Supreme Court’s judgment made a number of directions aimed at facilitating the
economic inclusion of transgender persons. These included the direction to reserve public posts
and educational admissions for transgender persons, include them in social welfare schemes
and enable them to regain their place in society. This group confirms that the Government of
Odisha has taken no such steps as required by the Supreme Court. As such, the state fails to
protect transgender persons’ rights under Article 15 to be free from discrimination, and
undermines their Article 21 guarantee to living life with dignity.
Housing
Swati described the struggle of trying to find a place to live. She told us that hardly anyone will
allow them to rent their property or buy land because they are transgender. Furthermore, even
if they find a place to rent or land to buy, it is a struggle to be able to afford these places
because their income is low.
It appears that prejudice and stigma remains rife in Bhubaneswar as this group struggles to
access proper housing. This is one of the reasons that transgender persons often choose to stay
with a guru, who will already have a house that they can live in.
The group were in agreement that they would like to see the government provide them with
housing, or at least assistance in securing proper accommodation.
63
The New Indian Express, Pink Auto Rolls out for Women, 28 June 2014 accessed at
http://www.newindianexpress.com/states/odisha/Pink-Auto-Rolls-out-forWomen/2014/06/28/article2304641.ece
44
The group confirmed that the Government of Odisha has failed to carry out the directions of
the Supreme Court concerning social welfare provision, and as such is failing to protect the
constitutional rights of transgender persons. In particular, the prejudice facing transgender
persons in relation to housing is a violation of the Article 15 rights, yet the state has taken no
steps to address this.
Family
The majority of respondents are no longer in touch with their families because they do not
accept their children’s transgender status. This is why each of the ‘chela’ left home to live with
Meera, where they could be part of a family unit.
Sadhana raised the issue of transgender persons being unable to marry. She said, ‘we should
have the right to get married and take a husband. We have families and partners too, but we
are not allowed to live a normal family life.’
Toilet Facilities
The group confirmed that there are no separate public toilets for transgender persons. Echoing
the sentiments of the group in Cuttack, they told us that while they can access the female
toilets, they are not comfortable with this and should have their own toilets.
As noted, the failure by the state to provide separate toilet facilities is in direct contravention of
the Supreme Court’s directions.
Civil Status
When questioned as to whether the group had changed their names and gender identities in
official documentation, they informed us that they had started the process but not finished it.
They told us that it is a three stage process; first, obtaining an affidavit from the court, second
publishing the change in a newspaper and third, the government publishes the name and status
change in one of their notifications. The group told us that they had completed the first two
stages but were waiting on the government to complete the third stage.
It was clear to the fact-finding team that this group were more engaged with the implications of
changing their names and status in their official documentation. In their case, it was the
government acting as a barrier to doing so.
45
The Supreme Court in direction 2 specifically directs the government to grant legal recognition
of transgender persons’ gender identity. The failure to cooperate in assisting transgender
persons to change their name and status is unacceptable and defies this obligation.
Transgender-specific services in Odisha (post NALSA)
The group told us that there were no transgender-specific services in Odisha that they were
aware of. In particular, they informed us that no services have been introduced since the NALSA
judgment.
The group told us that they would like to see a transgender office or project established which
could also provide them with employment.
Meera commented that the government were ‘in the process’ of opening a transgender
department, but that nothing had materialised out of this. The others seemed sceptical that
this was happening at all. Meera continued, telling us that for three years, the government has
planned to establish a transgender welfare board. She told us that each time the government
was close to establishing the board, the senior government officer at the helm of the project
would be transferred to another department.
The meeting with the Department of Social Welfare the previous day, however, signified the
beginning of a potentially fruitful dialogue between the transgender community and the
government. Before, there was no space whatsoever in the government to talk about
transgender issues. Slowly, the government are becoming more receptive, but have failed to
take any action to address the number of issues affecting the transgender community.
Meeta and Sadhana have established two transgender organisations. Sakha was established in
2006 and the Third Gender Welfare Trust was established in 2015. Both groups are formally
registered. They receive no support or funding from the government, but do receive support
from HIV Alliance India to undertake preventive promotive HIV/AIDS Intervention amongst the
transgender community.
46
SUMMARY OF FINDINGS
-
-
-
-
-
-
V.
No transgender-specific HIV services have been established in
Odisha. Free ART is available and accessible in public hospitals.
Some transgender persons living with HIV cannot access MBPY
because they do not have a passbook.
No separate gender neutral/third gender hospital wards or beds have
been provided in government hospitals.
Medical staffs in Bhubaneswar are not completely sensitized.
Access to SRS and counseling is very difficult due to cost. No SRS
treatment is provided by the government.
No separate gender neutral/third gender public toilet facilities have
been provided.
Access to contraception is difficult as the government have ceased
providing cheap condoms. Respondents have to pay for condoms
themselves.
Public attitude is still very negative towards transgender persons, and
group members have been subject to both verbal harassment and
physical/sexual abuse.
Stigma is still preventing transgender persons from purchasing land
and renting properties. Transgender persons in Bhubaneswar have
no access to government housing schemes.
The primary occupation of transgender persons in Bhubaneswar is
begging or sex work. Transgender persons are receiving no livelihood
support or support to help them into other employment.
The group disclosed incidents of police harassment/discrimination. It
was also clear that group members avoided reporting incidents of
discrimination to the police as they feel the police does not
understand or sympathise.
The group has made every effort to formally change their
name/status but the government has failed to cooperate.
The more senior in the group knew more about their rights and
entitlements as pronounced in the NALSA judgment, but were clear
that nothing has changed for them since the judgment.
The group does not feel they can adequately participate in
government decision-making processes, although felt the meeting
with the Department of Social Justice and Empowerment was
encouraging.
FAILURE TO IMPLEMENT NALSA AND VIOLATION OF FUNDAMENTAL HUMAN RIGHTS
47
The continuing struggle of transgender persons to find their place in society can largely be
attributed to the failure of both the Central Government and the State Government of Odisha
in implementing the Supreme Court’s directions in the NALSAjudgment of 2014.
This can be demonstrated by comparing the team’s findings with the directions contained in
NALSA:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of
safeguarding their rights under Part III of the Constitution and the laws made by the
Parliament and the State Legislature.
- Transgender persons in Odisha are not being afforded the protections guaranteed in the
Constitution and their rights are not being safeguarded.
- As noted, Article 14 carries a positive obligation on the State to ensure equal protection of
law by facilitating social and economic inclusion of marginalised groups.64Our findings
demonstrate that the government has taken no steps to assist transgender persons in
either social or economic inclusion. The government of Odisha has not provided for any
sensitisation training programmes in schools, for the police or other public service
providers that would aid social inclusion. Furthermore, the government has not included
transgender persons in social welfare schemes and has provided no support to assist
transgender persons find meaningful employment. The government is therefore failing to
protect the rights of transgender persons enshrined in Article 14.
- Article 15 explicitly prohibits discrimination against any citizen on grounds of sex, including
gender.65 It also provides that affirmative action be taken for the advancement of ‘socially
and educationally backward classes of citizens. ’Article 16 both prohibits discrimination on
the ground of sex in public employment and also imposes a duty on the State to ensure
that all citizens are treated equally in such matters.
- Discrimination against transgender persons in Odisha is still occurring, however, especially
in relation to accessing proper housing, employment and the way they are treated by
fellow citizens when going out in public. The government has taken no steps to address
instances of discrimination, such as training and sensitization programmes for both the
public and public service providers, tougher criminal justice measures for those who
commit abusive/discriminatory acts against transgender persons or providing guarantees
to housing or employment in the public sector. The government is therefore failing to
protect the rights of transgender persons enshrined in Articles 15 and 16.
- The government has also failed to protect transgender persons’ rights of freedom of
speech and expression under Articles 19(1) (a) and 21. Our findings show that transgender
persons are still being discriminated against because of their expression of the genderidentities, and the government has made no attempt to remedy this.
- In particular, it is submitted that the government has absolutely failed to protect
transgender persons’ rights as enshrined in Article 21. Transgender persons’ right to dignity
64
65
Ibid.
48
is still completely overlooked, as they are forced to use facilities assigned to a gender other
than their own, forced to undertake degrading professions such as begging and sex work.
This includes the shame of having to pay for condoms in a public medical shop.Transgender
persons continue to be limited in what they can achieve simply because of their identity.
Their right to make decisions about their own lives, also protected by Article 21, is also not
realised. Their limited access to education and employment means that they cannot take
control of their own futures or realise their aspirations. Furthermore, the lack of provision
of transgender-specific HIV services, hospital beds and failure to provide free condoms
undermines the right to health also contained in Article 21.
Thus, it is submitted that despite the Supreme Court’s recognition that third gender
persons are protected by the Constitution of India, the government is failing to take the
necessary measures required to ensure that transgender persons enjoy these protections.
The failure of the state to adopt such measures amounts to a violation of the rights of
transgender persons as proscribed in the Constitution, international human rights law and
as confirmed by the Supreme Court in NALSA.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the
Centre and State Governments are directed to grant legal recognition of their gender
identity such as male, female or as third gender.
The government of Odisha has not been consistent in issuing ID cards recognising transgender
persons’ gender identity. Our findings show that one quarter of respondents interviewed did
not have an ID card. Furthermore, we also found that the government of Odisha has not
published the change of names/status of transgender persons in any official notifications,
meaning that those who have attempted to change their details still have not been officially
able to do so. This direction has only been partially implemented.
(3) The Centre and the State Governments to are directed to take steps to treat transgender
persons as socially and educationally backward classes of citizens and extend all kinds of
reservation in cases of admission in educational institutions and for public appointments.
As noted, transgender persons living in Odisha have received no assistance in accessing
education or employment in the public sector. The only ‘programme’ we have observed is the
recruitment of 25 volunteer transgender persons as traffic constables. Not only is this position
unpaid and does nothing to improve transgender persons’ economic position, it is also a
somewhat feeble initiative in terms of scale, considering there are up to 25,000 transgender
persons in Odisha. No express reservations have been made or implemented for places in
49
educational institutions or public appointments. This means that transgender persons still
largely work as beggars or prostitutes as they have difficulty finding any other kind of job. This
direction has not been implemented.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance
Centres since Hijras/Transgenders face several sexual health issues.
Although our findings show that transgender persons can usually access ART free at public
hospitals, no separate HIV Sero-surveillance centres have been introduced by the government.
This means that there are no transgender-specific HIV services in Odisha which take account of
transgender persons’ very different health needs e. g mental health issues as a result of
enduring discrimination/stigmatisation or family abandonment. This direction has not been
implemented.
(5) Centre and State Governments should seriously address the problems being faced by
Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression,
suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s
gender is immoral and illegal.
As noted, the government has provided no assistance to transgender persons in facilitating
their social inclusion. No measures have been taken to reduce stigma. Furthermore, no tailored
health services have been provided which are designed to support transgender persons’
particular vulnerabilities, such as depression or suicidal tendencies. This direction has not been
implemented.
(6) Centre and State Governments should take proper measures to provide medical care to
TGs in the hospitals and also provide them separate public toilets and other facilities.
Our findings demonstrate that the government has provided no separate wards or beds in
hospitals and no separate public toilets. No transgender-specific facilities have been introduced
since this judgment. Furthermore, in respect of medical care, Odisha does not offer free SRS or
counselling, does not provide free or subsidised contraception and does not offer transgender
specific HIV services. This direction has not been implemented.
50
(7) Centre and State Governments should also take steps for framing various social welfare
schemes for their betterment.
Our findings show that transgender persons in Odisha do not have access to social welfare
schemes such as education support, livelihood support, pensions or housing schemes. The only
scheme the respondents reported as having some access to is MBPY, and even then not all
members of the transgender community were able to access this scheme. This direction has
not been implemented.
(8) Centre and State Governments should take steps to create public awareness so that TGs
will feel that they are also part and parcel of the social life and be not treated as
untouchables .and(9) Centre and the State Governments should also take measures to regain
their respect and place in the society which once they enjoyed in our cultural and social life.
The majority of respondents still feel excluded and stigmatised by society. The first group
commented that public perception had improved since the judgment, but not by any measures
that the government had taken. The other two groups told us that the public still do not treat
them as equals and have noticed no improvements. In both cases, the government has taken
no steps to create public awareness of transgender issues to encourage understanding and
acceptance. Furthermore, the government has taken no steps to include transgender persons in
mainstream society such as facilitating their access to employment. These directions have not
been implemented.
Thus, it can be seen that even with the clear directions of the Supreme Court, the state has
failed on all accounts to take steps to protect the fundamental rights of the transgender
community in Odisha. Not one of the Supreme Court’s directions has been fully implemented,
despite the judgement having been delivered in excess of one year ago. The state has failed in
its duty to protect the transgender community and to introduce measures for their
advancement. Their constitutional rights under Articles 14, 15, 16, 19 and 21 have not been
protected by the state. This failure amounts to a violation of the fundamental human rights of
each member of the transgender community, who continue to be subjected to social and
economic ostracism, poverty and discrimination in virtually all aspects of their lives.
51
Supreme Court Direction in NALSA
(1) Hijras, Eunuchs, apart from binary gender,
be treated as “third gender” for the purpose
of safeguarding their rights under Part III of
the Constitution and the laws made by the
Parliament and the State Legislature.
Violation by the state




(2) Transgender persons’ right to decide their
self-identified gender is also upheld and the
Centre and State Governments are directed
to grant legal recognition of their gender
identity such as male, female or as third
gender.

(3) The Centre and the State Governments to
are directed to take steps to treat
transgender persons as socially and
educationally backward classes of citizens
and extend all kinds of reservation in cases of



A number of violations of transgender
persons’ Constitutional rights
continue to occur, with no
intervention from the state.
The right to dignity contained in
Article 21 is undermined by the social
and economic exclusion they continue
to face. No measures have been taken
to remedy this.
The right to health contained in
Article 21 is undermined by the failure
to provide appropriate healthcare
services, including transgenderspecific HIV services, free
contraception or SRS
The right to be free from
discrimination under Article 15
continues to be violated, including in
general public, in accessing housing or
employment. No measures taken by
the state to address this. No
reservations of public posts have
been made for transgender persons,
violating Article 16. Stigma continues
to curb transgender persons’ right to
freedom of expression contained in
Article 19.
State has not been consistent in
issuing ID cards recognising
transgender persons’ gender identity.
State has not been cooperating in
publishing changed names/status .
Transgender persons living in Odisha
have received no assistance in
accessing education or employment
in the public sector.
No express reservations have been
made or implemented for places in
educational institutions or public
appointments
52
admission in educational institutions and for
public appointments.
(4) Centre and State Governments are
directed to operate separate HIV Serosurvellance Centres since
Hijras/Transgenders face several sexual
health issues.

(5) Centre and State Governments should
seriously address the problems being faced
by Hijras/Transgenders such as fear, shame,
gender dysphoria, social pressure,
depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for
declaring one’s gender is immoral and illegal.

take proper measures to provide medical
care to TGs in the hospitals and also provide
them separate public toilets and other
facilities.







also take steps for framing various social
welfare schemes for their betterment.
take steps to create public awareness so that
TGs will feel that they are also part and
parcel of the social life and be not treated as
untouchables.
(9) Centre and the State Governments should
also take measures to regain their respect




No separate HIV Sero-surveillance
centres have been introduced by the
government.
There are no transgender-specific HIV
services in Odisha which take account
of transgender persons’ very different
health needs
No measures have been taken to
reduce stigma or facilitate social
inclusion.
No tailored health services have been
provided which are designed to
support transgender persons’
particular vulnerabilities.
no separate wards or beds in
hospitals and no separate public
toilets have been provided.
No transgender-specific facilities have
been introduced.
No free SRS or counselling
No free or subsidised contraception
No transgender specific HIV services
No access to social welfare schemes
such as education support, livelihood
support, pensions or housing
schemes.
Inconsistent access to MBPY.
no steps have been taken create
public awareness of transgender
issues to encourage understanding
and acceptance.
no steps have been taken to include
transgender persons in mainstream
society such as facilitating their access
to employment.
53
and place in the society which once they
enjoyed in our cultural and social life.
VI. CONCLUSION
The fact-finding team learned that, despite the Supreme Court’s landmark decision in NALSA,
the lives of transgender persons living in Odisha remain subject to discrimination and hardship.
Transgender persons still struggle to access basic services and support that other persons rely
upon or even take for granted. Ingrained stigma has maintained their struggle in accessing
housing, land, education and employment. Our findings have demonstrated that transgender
persons are afforded no support from the government in accessing employment, causing them
to be unwillingly trapped in occupations such as begging and sex work. They also receive no
assistance with accessing proper housing and are not included in any other welfare schemes.
No separate, transgender-specific services have been provided since the judgment. As such, the
Government of Odisha has failed on all accounts to implement the Supreme Court’s judgement
in NALSA.In its treatment of transgender persons, the Government of Odisha is failing to
protect their constitutional rights, as well as violating a number of international human rights
instruments.
The findings across the three groups – the group in Cuttack, the group at the Department of
Social Justice and Empowerment and the group in Bhubaneswar – largely corroborated one
another. The main differences were that the group in Cuttack appeared to experience less
public harassment than reported by the other two groups, and reported that they could access
contraception easily – unlike the group in Bhubaneswar. All groups were clear that no
transgender-specific services or support schemes have been introduced by the government of
Odisha.
54
It was clear that there is still a lack of public sensitisation of transgender issues, with verbal
abuse and discrimination still common. The Cuttack group appeared to experience less issues in
this respect, although they attributed this to the NALSA judgement and not to anything done by
the government. This stigmatisation is also still apparent amongst some public service
providers, including medical staff and the police. Our findings show that instances of assault,
verbal abuse and stigmatisation still occur, and that the government has taken no steps to
provide training or awareness raising programmes to address this.
Transgender persons are, for the majority, working as beggars and prostitutes because they
simply have no alternative. Employers will not employ them, or if they are employed, they may
not be paid or dismissed. All respondents made it clear that they are not begging and engaging
in sex work because it is what they want to do. They do it because otherwise they will starve.
The government has provided no support to help transgender persons into meaningful
employment or to ensure access to further education.
No transgender-specific health services are available in Odisha. While respondents informed us
that they can access free HIV treatment in public hospitals, there remains no transgenderspecific HIV service which fully accounts for their particular needs and circumstances.
Furthermore, there is no publicly funded or subsidised SRS or counselling. The SRS available in
private hospitals in Odisha is extortionate and no counselling is available, meaning that
transgender persons in Odisha are forced to travel to other states for SRS or not have it at all.
This is a major issue, as, for some, SRS is crucial in fulfilling their own sense of identity. Without
it, many face psychological issues. Odisha public hospitals have no separate beds or wards for
transgender persons, meaning that transgender persons have to go through the undignified
experience of being placed in the male ward, where they are not comfortable, or the female
ward, where neither they nor the female patients are comfortable. Accessing a separate bed in
a private hospital is not affordable. Worryingly, access to contraception is also a struggle for
many transgender persons. The discontinuation of government subsidised condoms means that
sex workers have to meet the cost themselves. This is extremely worrying, as the inaccessibility
of contraception may lead to more cases of HIV amongst the transgender community.
For transgender persons in Odisha, the inaccessibility of proper housing remains a key issue.
They are not included in any government housing schemes. Due to stigmatisation, they find it
difficult to rent property or purchase land. No separate gender neutral or third gender public
toilet facilities for transgender persons have been introduced.
With regards to their civil status, many transgender persons have been issued with an ID card
describing their gender as ‘other.’ Distribution of these cards has been inconsistent, however,
and a quarter of respondents interviewed did not have a card. The process of changing their
55
names and status in official documents is long and laborious and not met by government
cooperation. Furthermore, many respondents were not aware of the importance of updating
their records for accessing employment in the future.
Overall, it can be clearly concluded that both the Central Government and State Government of
Odisha have failed to implement the NALSA judgment. The majority of directions have not been
implemented at all, with one direction only partially implemented. As such, the fundamental
rights of transgender persons in the state of Odisha have been violated by the state. The state’s
failure to guarantee these fundamental protectionshas resulted in continued hardship faced by
transgender communities across Odisha. These directions were made by the Supreme Court
because they are what is required for transgender persons to be placed on an equal footing
with others. They are what is required for transgender persons to enjoy their constitutionally
protected, fundamental rights in the same way as other citizens. As a matter of priority, these
directions must be implemented and the issues raised in this report addressed, in order that
transgender persons may enjoy a quality of life that is determined by their choices, hard work
and ideas – not by their gender.
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57
ANNEXURE-1
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- Human Rights Law Network

Transcription

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