Transgender rights: One year of NALSA

On April 15, 2014, a division bench of the Supreme Court passed a judgement that constituted a veritable charter of transgender rights. National Legal Services Authority (NALSA) v Union of India became an instant landmark, not just for the specific remedies that it crafted for a deeply vulnerable community, but also for its revitalisation of a constitutional promise that the court seemed to have forgotten just four months ago in the Suresh Kumar Koushal case. Where that decision effectively recriminalised homosexuality through a harshly restrictive (and at many levels, incorrect) reading of the rights of equality and dignity, NALSA generously broadened the scope of constitutional rights and deepened the idea of constitutional morality. One year down the line, what does one make of this celebrated judgement? Or, to put it differently, how does one evaluate its impact?

One manner in which judgements gain power is through their invocations as precedent, and in this regard there is much to be optimistic about. Just two days after NALSA, the Madras High Court set aside an order of termination by the superintendent of police in Karur district whereby a female-identified, medically intersex individual was dismissed from service after her medical reports identified her as transgender. The judgement served to reinforce and expand the cloak of NALSA's inclusion: Where the right of self-identification was worded somewhat broadly in the former judgement, the Madras High Court recognised it as an express right in the case of Female to Male (FTM) trans persons. (Leaving aside the fact that the Court indirectly identified the petitioner as FTM). Earlier this year, the Supreme Court in Ram Singh vs Union of India favourably cited NALSA in deciding on the Union of India's authority vis-a-vis the Backward Classes Commission. In the words of the Court:

"The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness."

Of course, the reiteration of a judgement as precedent doesn't necessarily need to happen within the Court. There is an expressive function that the judicial text has, over and above its enumerated directions. That expressive power is ultimately what activists rely upon in their advocacy; it's what state actors will use in political debates; it is what the media reports on and injects into public discourse. And at the level of perception, there is certainly much to be optimistic about when it comes to NALSA. It has entered the vocabulary of many LGBT individuals and activists, its promises invoked in protests, meetings, consultations and engagements with the media.

Familiarity with the judgement doesn't merely rest with members engaged with the community - it has percolated to a remarkable extent amongst government officials at different levels. When a Transgender Rights Bill was recently introduced by MP Tiruchi Siva in the Rajya Sabha, a number of MPs from across party lines took part in the discussion and extended their support to the Bill, many of them citing NALSA with approval. At the other extreme, the bureaucratic nightmare of navigating gender transition across identity documents has eased by a number of accounts. Just last week, a colleague who'd accompanied a trans client to a notary reported how the official had excitedly remarked that he'd heard about the judgement.

And yet, if implementation is the lens through which we evaluate this judgement's impact, it's clear that it has barely gotten off the ground. The decision laid out a set of recommendations, both broad and specific, that the government was mandated to comply with within a six month period. A limited of number of states made cognisable efforts to do so, Karnataka amongst them, by initiating the process of drafting policies for transgender individuals. Even in Karnataka however, where a final draft of the policy was accepted by the chief minister, no move has been made towards its actual adoption and implementation.

The most significant initiative so far has been in the realm of education. The University Grants Commission has been quite proactive - in July last year, it issued a notification directing education institutions to specifically provide for admissions to transgender students as well as inclusion in various scholarship schemes and programmes. The UGC has also directed universities to create transgender friendly infrastructure, to integrate trans issues into the curriculum, and to provide for sensitisation programs. Many institutions have taken up the prerogative - Delhi University for instance introduced a separate transgender column for its postgraduate admissions this year with promises of extending it to the undergraduate process the next year. The problem with most university measures is that they are currently aimed at the most superficial kind of inclusion, by way of changing the admission form. The challenges that tend to be faced by transgender persons in educational institutions are more significantly in the nature of bullying and harassment, and any measure aimed at accessing institutional spaces needs to take this into account.

Meanwhile, just before the conclusion of the six month period, the Union of India filed a clarification petition before the Supreme Court. The petition took issue with a paragraph of the judgement that seemed to expand its scope to the lesbian, gay and bisexual community, asked for more time for implementation of the judgement and questioned the recognition of transgenders as an OBC category by the Court as opposed to the Backward Classes Commission. This last part is particularly redundant: as Mario D'Penha notes the Commission had already recommended including transgender people in the central list of OBCs less than a month after the verdict. Once the Commission has made a recommendation, it is ordinarily binding on the Government, as the Supreme Court noted in Ram Singh.

Even more worrying is the manner in which violence by State authorities continues, unabated. In June 2014, a trans person in Ajmer was forced to perform sexual acts in police custody, following which false cases were filed against the complainant. In November, a transgender health worker in Guntur committed suicide following police harassment. That same month, around 43 people from the hijra community were arbitrarily rounded up by the Bangalore police and booked under Karnataka's Prevention of Beggary Act. The hijras were picked up while they were going about their everyday business on the streets, some were picked up from their homes and yet others who went to inquire about what was happening to their friends in police custody were themselves detained. Earlier this year, police in Hyderabad brutally tortured a hijra person on the pretext of a murder investigation.

How can we understand this systemic violence as anything but a glaring anomaly? On the one hand, of course social change does not necessarily track with legal change. The NALSA judgement with its powerful espousal of the values of dignity and equality is at one level a much delayed and necessary intervention, but is also simultaneously ahead of its time. The inclusiveness that it powerfully argues for is an ideal that will have to be painstakingly constructed. The other context to understanding the violence is to note that the protections offered by NALSA remain incomplete in light of the continued existence of Section 377 of the Indian Penal Code. The transgender community has always been identified with sexual acts committed under the Section - a fact made amply clear by the colonial era Criminal Tribes Act which was amended in 1897 to allow for preventive detention of "all eunuchs" who were, amongst other things, reasonably suspected "of committing offenses under Section 377 of the Penal Code". This link between the sexual act and identity that it is associated with is something that the NALSA Court addresses early on its judgement, but then leaves unchallenged. The full moral citizenship that NALSA grants can only be rendered such when it is accompanied by the sexual citizenship that the Koushal Court has taken away.