This piece is a report on Transform 2022 prepared by Sarthak Virdi (Editor, LSPR) and Oorja Newatia (Observer, LSPR). It is the first post of a two-part series. The second piece will engage with the contents of the arguments presented at the event, while this piece seeks to describe the views presented by the panelists.

About Transform

Over the years, CLPR has held 5 editions of TransForm – the only international conference on trans rights and the law in India. To trace a brief history of TransForm; in the year 2016, CLPR hosted the first edition of TransForm as a national conference on transgender rights at Indian Institute for Human Settlements, Bangalore. The conference included activists such as Akkai Padmashali, Anindya Hazra, Gee Imaan Semmalar, Karthik Kondaiah, Raina Roy, and Vyjayanti Vasanta Mogli along with lawyers and academics.

The scope of the second edition of TransForm was expanded in the year 2018, where it was envisioned as an International  Conference on Transgender Rights and Law.  It marked the fourth anniversary of the National Legal Services Authority v Union of India judgment, as well as the 127th birth anniversary of Dr. B.R. Ambedkar. At a time when transgender rights had been gaining attention globally, this conference involved international speakers such as Prof. Stephen Whittle (United Kingdom), Prof. Carlos Zelada (Peru), Busisiwe Deyi (South Africa), and Audrey Mbugua (Kenya). The theme of the conference for 2018 was trans-formation of the law and it also saw the inception of CLPR’s TransLaw Cell – a free legal aid program for issues faced by the transgender community, as well as any sexual minority.

CLPR organized the third edition of TransForm to highlight the transgender persons continue to face inequality, discrimination and legal hurdles in exercising their fundamental rights a year after the Navtej Johar decision. The aim for this edition of TransForm was to chart the way forward for the trans and intersex community in a post-Section 377 world, for the realization of rights and the guarantee of inclusivity, equality and justice. 

The keynote address for TransForm 2019 was on the theme – The Battle Beyond the Courtroom: Lessons from the Experience with Strategic Litigation in Botswana and was delivered by Tshepo Ricki Kgositau, Executive Director, Accountability International, Cape Town.There were panels on the themes Gender Identity in Sport, Intersectional Explorations: Transgender Rights in the North-East and Transpersons with Disability, Post Navtej Johar: Moving beyond Decriminalisation?, Next Steps for Statutory Reform, and Gender Identity & Equality Movements.

In 2020, CLPR invited speakers who discussed how the transgender community was impacted by the COVID pandemic at the 4th edition of TransForm. In the panel on criminal law and prison reforms, there was discussion on the need for making the offence of sexual assault gender-neutral, and the need for prison reforms to ensure that the rights of transgender persons are protected and respected in prisons, especially issues such as placing them in cells that match their gender identity, access to medical treatment, etc. 

There was a panel to discuss the Transgender Persons (Protection of Rights) Act 2019 and the Rules the issue of reservation for trans persons, intersectional discrimination faced by transpersons, and challenges in accessing benefits by trans disabled persons was also brought up.

Another  panel discussed how it is important for transgender rights to fight against the rising authoritarianism that we are witnessing.  Most interestingly there was a panel on the future of transgender persons in politics. 

Transform 2021, the 5th National Conference on Transgender Rights and the Law highlighted the existing barriers and discrimination faced by transgender persons in access to legal and constitutional rights. The focus was on the re-emergence of conversations on the assertion of rights and dignity of transgender and non-binary persons in a world trying to rebuild itself after the COVID-19 pandemic.

The first Roundtable discussing the topic “Access, Equality and Trans Inclusion in Education” raised the issue of non-inclusive educational spaces and the challenges in advocating for change in the education system that maintains the ‘normal.’ The second Roundtable was titled “The Demand for Transgender Rights and Democracy” and touched upon the State’s interactions with trans identities in various contexts- the criminal law, kinship, care, queerness and nationalism. 

The third Roundtable on “The Right to Love- The Use of Criminal Law to Police Trans Couples”critiqued the law’s approach to handling transgender love and the need for sensitising the police to transgender concerns. The fourth Roundtable “Reproductive Justice and Transgender Rights” explored the exclusionary nature of the healthcare system and how it prevents transgender persons from exercising their sexual and reproductive rights. Lastly, the fifth the discussed “Transgender Rights and Gender at Work” discussed how transgender identities can thrive under existing workplace policies and laws and the way forward.

TransForm 2022

Transform 2022 took place on 9 December 2022 and the theme was ‘Transforming Rights: How Law Shapes Transgender Lives, Identity and Community in India’. The speakers included Dr. Svati Shah, Kalki Subramaniam, Santa Khurai and the discussion was moderated by Jayana Kothari (Director, CLPR).

1. Presentation  by Dr. Svati Shah

The first panelist, Dr. Svati Shah presented their paper titled ‘Judging Individualism: Reading Supreme Court Decisions and Legal Proposals for Sexuality and Gender Norms in a Shrinking Democracy’. Their paper followed the method of critical legal studies and they sought to look at judgments around Section 377 as an anthropological text. They sought to put the issue of gender and sexuality in broader themes like class and activism and comparison with the American legal context.

They sought to analyze the discourse on privacy and individualism in the context of S 377. The claim they make in the paper is that the more legal recognition a group gets, the more its rights are constrained. The more these laws tend to give visibility to non-heterosexual identity, the more we have to ask questions regarding who the law impacts. Maintaining criminality while expanding rights is a function of all juridical processes. While legal rights for sexual minorities seem to be expanding, this is being done  by a state that understands gender and sexuality in individualistic and biological terms. The result is a reduction of the space in which gender and sexuality can be understood and acted upon as political terms. This can be evidenced by the anti-democratic legal initiatives that are now using Section 377 as precedent. 

Further, they distinguished between activist movements from the 1990s that drive the discourse on gender and sexuality in India and the ways in which the Indian state has discarded those interventions. They do not see gender and sexuality as a private sphere of embodiment outside of politics rather treat them as social products. Gender and sexuality, as per them, have always belonged to questions of space and political economy. From this perspective, they are interested in how controlling sexuality and binary gender by depoliticising them operate within the larger horizon of receding rights. 

In the present context, they are interested in the way economic autonomy is waged through administrative legibility, which in turn reifies normative patrilineal rights and caste endogamy. They are interested in what laws like Section 377 have to do or do not have to do with things like patrilineal lines of inheritance, caste and having a libelabe life in the context of laws that dictate who can be an independent economic subject. They juxtaposed the concerns that 377 sought to address when it was put in place in the IPC against the way it is currently understood. The present discourse was not the primary way the state understood gender and sexual politics. 377 today is seen an anti-homosexuality law or more broadly an anti-LGBTQ law, which was not the case when the IPC was bein drafted. This was mainly because homosexuality as a social category did not exist during that time. 

Rather than mapping 377 back in time via the presentist state lens of homophobia, historiographic readings of it emphasize the broad functions of the phrase ‘unnatural offenses’ in the law. The ways in which homosexuality emerged from this milieu as a biologized social type is a stuff of sexuality studies syllabi around the world, taught by a Foucauldian lens that often overlooks the questions of racialization and caste formation. In India, 377 was a way to articulate caste based endogamy and the relations of production towards a stable order that facilitated resource extraction and rent seeking. 

In 2009, Naz articulated the challenge against Section 377 as coming from the right to privacy under Article 21. While Navtej did the same in 2018, the difference between the two is striking. In 2001, the petitioners argued for privacy in relation to bodily autonomy and space and a ‘private sphere’ and for a right to do what people want consensually in their private lives. This was done in relation to health concerns in relation to the HIV pandemic and the custodial rape on hijras and sex work. In 2018, the Supreme Court wrote of sexuality as natural, reflective of choice and relating to dignity and decisional autonomy. This decisional autonomy was not in relation to constraints on choice but ‘the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity’. 

To sum up, in the context in which collective action is being criminalized, it bears some examination about what it means to have sexuality rights reified in terms of individuality and not public space. 

2. Presentation  by Kalki Subramaniam 

Kalki Subramaniam, founder of the Sahodari foundation and trans activist spoke on the status of the transgender community post the NALSA judgment. 

The transgender community gained visibility in the year 2005 in light of the HIV epidemic. The fight for the rights of the transgender community which led to the NALSA judgment has unfortunately not been successful. The community (especially in small towns and villages) is still struggling for  employment, education and health rights. Trans people are still struggling for dignified lives. Not just this, family exclusion of transgenders is still prevalent. Children are abandoned by virtue of their being a transperson and the State has not done anything to prevent that. It is the government’s responsibility to sensitize families and schools to create a safe space for gender non-conforming kids. These kids are victims of discrimination due to lack of education on gender identities and sexual orientation. 

While the NALSA judgment grants reservation to the community in jobs and educational institutions, the Union Government has been silent on the issue perhaps because the transgenders constitute a miniscule minority in the country and cannot be used as vote banks. Even after the judgment, the only available opportunities available to the community to work is begging and doing sex-work. They are still living a marginalized existence where they are treated as demi-gods but not equal as humans. They are still not allowed to adopt children and thus lead a lonely existence. Many transgender rights activists were not involved in the making of ‘The Transgender Persons (Protection of Rights) Act, 2019. The law violates individual rights to self-identity by vesting power in a medical officer to check the genitals for purposes of issuing a medical certificate. The community needs to be united and strengthen its fight against the injustices of the current system. 

3. Presentation by Santa Khurai 

Santa Khurai, an activist associated with AMaNA and SAATHI spoke on her work for the queer community in Manipur. The presentation is based on research on Manipur Indigenous Nupi Maanbi and Nupa Maanba. The study focuses on the ground realities of the transgender community in India and the legal developments that have taken place. For the purposes of this study, we interacted with the community to understand their experience. A lot of members of the trans community in Manipur are not willing to go for bottom surgery but wanted to live as either men or women. The society in Manipur has only a certain level of trans-tolerance. In Moirang there are some trans fishers whose livelihoods have been severely affected due to the development process. This has not been taken into consideration in the NALSA judgment. 

Moreover, the gender markers in the identification documents have been very problematic for the community. In the earlier passport, the identification marker was ‘T’ and later on ‘X’ was used as the identity markerI’m . In the voter ID, earlier ‘O’ was used and later on ‘TC’ came to be used. This indicates that there is a lack of communication in the bureaucratic set up which has been a hassle for the community. If the identity markers are different in different documents, it creates difficulty for the community when they go to different institutions. People who get bottom surgeries done , implying that they are from a privileged background, are accepted into the society more easily. 

The research finds that the population of the trangender community in Manipur is around 4000. Only 208 of them are registered as voters. This highlights the difference between the real data and the government data. The visualization of transgenders as getting their rights really affects the community’s development. The recommendations for socio-legal inclusion of the community include economic inclusion, community empowerment, education rights, and awareness regarding gender identities and sexual orientations from the primary school itself. 

The presentations by the speakers were followed by questions from the audience. 

While equality for transpersons is still a goal we need to be working for continuously, Transform contributes to the discourse on the right of queer individuals by bringing academicians and activists from across the country. A report on TransForm 2022 can be read here and here.