On April 15, 2014, the Supreme Court recognised transgender persons as a third gender and affirmed their right to decide their own gender identity such as male, female or as third gender. The court held that non-recognition of gender identity violates the rights to equality and life provided to all citizens .
The Centre and state governments were directed to treat transgenders as socially and educationally backward classes and extend reservations in cases of admission in educational institutions and for public appointments.
The judgment was passed in the National Legal Services Authority (NALSA) versus Union of India & Others case
Asha Menon, Member Secretary, National Legal Services Authority (NALSA), points out, "One of the directions given is to bring the transgender community up to the position of respect that they enjoyed, which is huge. It means at whatever level they are today, you have to pull them up to the same level of acceptability and respectability that existed say in the Mughal era and the earlier eras and in the Scriptures, because they all have been referred to in the judgement.
Importantly, the Supreme Court accepted the broad definition of transgender as including persons who do not identify with the sex they were born with. Transgender is an umbrella term for all traditional and non-traditional trans-communities who use different names to identify themselves. Some have had surgery or hormone therapy; some haven't; while others are fluid in their gender expression. The best known are the hijras, the oldest ethnic group of transgenders in India, and the world
Ernest Noronha, who is programme officer at UNDP and impleader in the Supreme Court case says, "The judgement in itself goes beyond the usual mandate of looking at this one group. It embraces a lot of definitions and identities, whether they are Shiv Shaktis or Jogappas, male to female transgenders or female to male transgenders. It is a broad judgment and embraces a whole lot of identities. It talks about identities which have been silent or not visible for a very long time. So the judgement is very proactive."
Hijras have been a vocal group in the campaign to get recognition for all transgenders and for LGBT rights. Hijras are male to female transgenders and the community is structured into gharanas, each led by a guru. Not all male to female transgenders are hijras however.
Even as Hijras lead the way, some communities....like female to male transgenders, intergender and intersex ....continue to be invisible. Their lives are extremely difficult. But their life experiences are rarely documented and their perspectives unheard.
Hijra activists Gauri Sawant and Laxmi Narayan Tripathi were among those who impleaded in the Supreme Court case, providing key inputs. Their activism at national and international fora is seen as a game changer.
Laxmi Narayan Tripathi, Transgender/Hijra Activist, said, "No child should be sexually assaulted because of his confused sexuality. There should be safety for everybody. And I heard the new Prime Minster, Narendra Modi's speech at Vadodara. He said I am the Prime Minister for every Indian who voted and who did not vote for me, as well as for every community. I believe this is immaterial to whatever stand his party takes, because this will require a great political commitment. I am an Indian and a voter. My dignity is as big as the dignity of the president of India."
We spoke to a cross section of Hijra activists who hope the judgment will help in addressing the phobia against transgenders, and that future generations will not face what they had to go through.
They say for the first time they feel they have been identified as citizens of the country.
Simran Shaikh, Programme Officer, India HIV/Aids Alliance says, "My immediate reaction was like I got my independence. I was on the top of the world and it was really good. I wish this judgement had come 20 years ago, I would have not left my biological parents. I think from this day onwards, I don't think any kid would be forced to leave their biological parents if their nature or thinking is that of a trans-community."
Abhina Aher, Programme Manager, India HIV/Aids Alliance adds," The first feeling after settling down was oh my gosh, there is a huge amount of work yet to be done. This acceptance is not from the society. This is just a beginning, I think. We have a long way to go."
Some are not sure whether the ground realities will change dramatically.
Rudrani Chettri, Managing Director, Mitr Trust asks, "Even if we have this verdict from the Supreme Court, the question is how many state governments will implement it? Hypothetically, if I were to go to the DTC and seek to join as a driver or bus conductor, will they welcome me?
Amitava Sarkar, Training Officer, Pehchaan North Region Office agrees, "First, changing the mindset of people is very important and sensitizing each department of the government, like education and health. Just because the Supreme Court has passed the law does not mean that everything is solved. Now every department has to sit and talk to us. A strict protocol has to be followed at the grass root level, at the implementation level. There has to be proper awareness and advocacy and infrastructure."
Noori, who is Project Director, Parivartan Trust, believes efforts at sensitisation should start at the school level. "Even when Hijras go for blessing ceremony or badai, parents tell their children to hide and that instills fear in them. If we sensitise them in schools, they will grow up to understand Hijras are a part of society. Just like there is male or female, there is a third gender."
Abhina Aher is optimistic." The judgment provides equal opportunities in education and employment. And the same time, it gives an opportunity to reach out to the stake holders. To ask for your rights. There are times when people can just brush you off, especially when these kind of policies are not on paper. I think what is important is that you have that paper and say to those stakeholders that I am legal, I am here now, you have to take me on account."
We ask about reports that some Hijra gurus were unhappy that the verdict would impact those dependent on the traditional sources of income. For instance, collecting money for weddings and birth of a child, also known as badhai.
Simran said, "Yes there will be some people who are going to say that now that you have jobs, why are you begging? You have been given legal rights, so why do you do such kind of work? But I would in return ask each and every individual how many people have you employed? Have you even kept a transgender maid at your home? No, because you still have that perception of society. I think it is going to take a lot of time. None of the gurus are unhappy. There may be a few but we are trying to spread this message in the entire community that none of the traditional income is going to come down. Only now you have another opportunity. In case you don't want to work in badhai, you can enter a job."
For all transgenders, the first layer of transphobia they encounter is at the family level. Parents often have the misconception that the child who is breaking sexual and gender norms has a mental disease or is influenced by others.
21-year-old Ritika leads a double life. She wears makeup and dresses in feminine clothes only when she is at work as a counsellor at Mitr Trust. At home, she is known as Rajwinder and has to be in male attire.
Ritika says, "I belong to a Punjabi family. If a boy is born, he is expected to be masculine. If it is a girl, then she should behave like one. Whether you are a Hindu or belong to any caste, your family tells you they will not allow you to express yourself differently, they will break your legs. I too was beaten by my father."
Ritika's father, who works as a driver, and mother, a housewife, have been through shock, denial and anger.
Amreek Singh, Ritika's father, says he wants his "son" to wear a turban. "It's part of the traditions of Guru Nanakji's religion. We want him to follow that. But he doesn't agree and gets angry if we say anything. Neighbours gossip about him and we face many problems. We have noticed these changes in identity in the last 4 years. I tried everything, even got him checked by a doctor. The doctor said he is fine, he has no problem. When he was born too, he was normal. We don't know what happened to him
Recent studies have placed the average age of coming out as between mid to late teens during their school going years.
Almost all transgenders face verbal and physical harassment at school, forcing them to discontinue their education.
Ritika, who was at this government school, says she was abused and beaten by boys. Teachers did not come to her help because they thought she was at fault for her feminine behaviour.
Ritika tried to sensitise her teachers and went on to become a school monitor. Today she is enrolled as a BA student at Delhi University.
Ritika says the SC verdict, has sensitised her family to a certain extent but not enough to allow me to live with freedom. "It's not just me. Thousands of transgenders are forced to live a double life. They dress as males because of social pressure, family pressure."
Analysts say the judgment could be a turning point. It has taken the issues of transgenders to people's homes and opened discussions. On why transgenders are marginalised? How they can be part of the mainstream? What are the options before them?
Meanwhile, how can the Supreme Court judgment be taken forward by members of the transgender community?
The first consultation, among transgenders from different parts of Tamil Nadu, was organised in May in Chennai. The judgment has made it possible for transgenders to build up advocacy on issues like access to education and employment and achieve their rights. The role of transgender community based organisations is seen as critical.
Most transgender community organisations came into existence during the last ten years to fight the HIV epidemic.
Transgenders and Hijras have a high vulnerability to HIV, with a prevalence rate of nearly 9 per cent.
Through the central department of aids control, the ministry of Health and Family Welfare became the first ministry to engage with a community on the fringes of society.
It soon came to realise that if the anti HIV programmes were to be effective, the gamut of issues related to their marginalisation could not be pushed under the carpet. The department promoted transgender community organisations, and transgender activism.
At the state level, Tamil Nadu government was the first to take initiatives like setting up a transgender welfare board in 2008, observing Transgender Day and declaring transgenders as the third gender. It also held training for transgender self-help groups and police advocacy.
While there has been some progress, there have also been disappointments.
Priya Babu, Author, Filmmaker and Activist, said," One positive outcome is that every transgender knows there is a welfare board for the community. But if you want to know whether we saw many changes during the last 4 years, the answer is no. By providing ration cards and voting cards you cannot make transgenders give up begging. The issue of low income has to be addressed. If people earn Rs 4,000 to Rs 5,000 from government schemes, it is not enough to make both ends meet."
53-year-old Bharathi Kannamma from Madurai is the first transgender to contest a parliamentary election. Though she lost the elections, the feisty Bharati is a symbol of change in the community.
She says a transgender MP can sensitise members of Parliament to issues of the community, including Section 377.
Bharathi Kannamma, Former Lok Sabha candidate, Madurai says, "People think transgenders are into sex work. But they forget that there are no opportunities available to them. Its only when transgenders get into decision making, will we witness a revolution for our transgender community."
Bharathi lived as a man till the age of 43 and worked as a sales manager at HDFC. After her mother's death ten years ago, Bharati began living as a transgender and running a community organisation. She says if it was not for her education and work experience, she too may have been driven to begging.
Another role model is a 30-year-old, also called Bharathi. She is the country's first transgender pastor at the Evangelical Church of India and is a student of advanced studies at the Tamil Nadu Theological Seminary. Her chosen profession helps to promote the acceptance of her community. Her personal journey to come out as a transgender was a traumatic one. She was forced to leave home. But she says living a man's life would have been dishonest.
P Bharathi said, "When I came across the theological course I got the idea of becoming a pastor. The congregation is happy to have a transgender pastor."
Last year the Ministry of Social Justice and Empowerment constituted an expert committee to provide an in-depth study of the problems faced by the transgender community and suggest governmental measures. The report was submitted to the Government in January this year.
Anoop Kumar Srivastava, Chairman, Expert Committee on Transgenders and Additional Secretary, Ministry of Social Justice & Empowerment says, "As soon as the committee's report was received, we thought it will be fit to obtain the views of all ministries concerned, and all state government and Union Territory administrations of India. And we requested them to give their suggestions on the recommendations of expert committee. We are in the process of receiving those comments. In the meantime, this judgment came and if you would have noticed what Supreme Court has directed, the report, the recommendations of the expert committee be examined in the light of the legal declaration made in the judgment and implemented within six months. We have also set up an interim ministry coordination committee which is primarily responsible for coordinating actions on the recommendations of the expert committee."
Among the recommendations are an estimation of the population, educational scholarships, loan subsidies, opening of livelihood options and social security schemes
However, questions remain. Will the judgment be translated into action? Will it bring changes in the social realm?