View from the Margins: How the Modi government failed India’s transgender community

Voting is often the only chance that many of India's marginalised groups get to express themselves. As national elections approach, Scroll's reporters fanned out across the country to talk to groups with little socio-political power as part of a series called the View from the Margins. The aim: try to understand how the powerless and the voiceless have fared under a decade of the Modi government.

Earlier this month, Raghavi took leave from her job as a lawyer in Delhi to go to vote in her hometown of Kanpur on May 13. As a transgender woman, she wanted to demonstrate her displeasure with the Bharatiya Janata Party.

“The BJP government has failed and continues to fail the transgender community,” said Raghavi,

This contradicts Prime Minister Narendra Modi’s claim in February that his government had benefitted the community by enacting the Transgender Persons (Protection of Rights) Act, 2019, under which community members were given identity cards.

‘Toothless Act’

The Act was supposed to be the culmination of the process for the transgender community to be affirmed as equal Indian citizens that had begun with a landmark court verdict a month before Modi became prime minister. In April 2014, the Supreme Court had delivered its NALSA judgment in response to a public interest litigation filed by the National Legal Services Authority, recognising the gender identity of transgender persons. It directed the Centre and states to institute measures to empower them, including through reservations in education and jobs and providing them access to public healthcare.

During Modi’s first term, three bills related to transgender rights were tabled in Parliament, in order to cast into law the directions of the judgment. It was also a response to the recommendations of a report published in January 2014 by an expert committee on issues relating to the transgender community that had been constituted by the Manmohan Singh government. But due to criticism from the transgender community, none of the bills was passed.

Finally, in 2019, during Modi’s second term, a fourth bill on transgender rights was introduced and quickly passed by Parliament, in spite of several Opposition members urging that it be reconsidered.

Contrary to the law’s claims that it would secure transgender rights, it has been widely criticised by the community.

Raghavi said that the act stands in “sheer contradiction” to the NALSA judgment. “The judgment, in a true sense, provided for trans persons’ right to self-identification,” she said. Under the act, though, applicants must approach the district magistrate to secure a transgender identity certificate. In order to apply for gender change after surgery, applicants must secure a certificate from the district’s chief medical officer, which is then approved by the district magistrate under the act.

She said that the act categorises trans persons as legally distinct from cisgender people in ways that are unreasonable and unconstitutional. For instance, it provides a maximum punishment of two years for crimes against trans people, which may include rape. On the other hand, the rape of a cisgender woman is punishable with life in prison.

Petitions challenging the constitutionality of the act are pending in the Supreme Court but no hearings have been conducted since June 2020.

Even the existing provisions of the act are not properly followed by authorities, Raghavi said.

No institutions – governments departments and instrumentalities, universities, hospitals and schools – provide an enabling environment for trans people, she said.

“Lots of people in the trans community feel that it was easier for them to agitate for their rights on the basis of the judgment than on the basis of the act after 2019,” she said.

In addition, that there is nothing in the government’s budget for the trans community’s welfare.

Members of the trans community have been consistently making representations to authorities in central and state governments with regard to various issues such as reservations in educational institutions and government jobs, scholarships for trans students and funds for garima grehs or shelter homes for trans people, she said. However, there has been no progress on any of these concerns.

Last year, the Modi government told the Supreme Court that it did not intend to provide separate reservation quotas to the trans community. It also admitted in Parliament last year that it did not maintain data on the number of transgender persons working in the public or private sectors.

“The government is not listening to us,” Raghavi said.

Electorally powerless

Raghavi acknowledged that the transgender community is electorally insignificant because it is not a vote bank that can sway elections in any constituency. “As far as I know, no political party has made any outreach efforts to woo trans voters or even get trans people to register to vote,” she said.

Only three political parties have made promises pertinent to the trans community in their manifestoes.

The BJP has promised to expand the network of garima grehs, issue identity cards to members of the community and cover its members under the Ayushman Bharat scheme.

The Communist Party of India (Marxist) has committed to amend the 2019 act to address the concerns raised by the community, introduce reservation for the queer community in education and employment and bring in a “comprehensive anti-discriminatory bill” covering the queer community. It has undertaken to bring in measures to address harassment and violence against the trans community and access to separate bathrooms for them in educational institutions.

The Nationalist Congress Party (Sharadchandra Pawar) has pledged to provide healthcare to all queer people, including the trans community, criminalise hate crimes against queer people, create laws to address workplace discrimination against transgender people and engage in public sensitisation to cultivate acceptance and remove social stigma against queer people.

The Nationalist Congress Party, before its split last year, had become the first and till now only political party to set up an LGBT cell.

Such overtures are appreciated, said Raghavi. However, she is apprehensive about whether the parties have any roadmap to empower the community.

“These cannot be hollow or token promises, forgotten after the party comes to power,” she said.

She also questioned when parties would give election tickets to trans persons or induct trans people as party members.

“So many queer and trans people take active interest in politics, but it is only because of lack of opportunities and the absence of a platform that makes them invisible in the national discourse,” she said.

At the same time, Raghavi said that trans people are not a voting monolith.

“People need to stop looking at our votes only in terms of our trans identity,” she said. “The state of the economy, relations with neighbouring countries, the performance of the government – all of these things matter to trans people.”

She said, “You vote as a trans person but also as a citizen of the country.”

Immediate demands

Raghavi admitted that the trans community is large and diverse, with significant fault lines over even fundamental questions like who is a transgender person. Therefore, it cannot be expected to be politically united when it comes to the vote.

However, the community has consensus over basic issues like protection from police violence and harassment and easy access to the rights to vote and to property.

According to her, the new government that comes to power after the election can do some immediate things to empower and benefit the community.

It should repeal the 2019 act and enact a new law that is in consonance with the NALSA judgment, after consulting members of the trans community spanning castes, regions and languages.

It should introduce horizontal reservations for them – that is, reservation of some seats for trans candidates within the reserved quotas for all caste and class groups as well as among the unreserved seats – and bring in an anti-discrimination law.

It must release funds for garima grehs and increase the funds allocated to welfare policies for trans people.

It ought to make the process for trans persons to change their gender and other personal details within legal documents more convenient. Under the act, the process involves two steps and rests on the discretion of two separate bureaucratic authorities. “Currently, it is torturous, like we are put on trial,” she said.

The government must bring in minimum standards to inform gender-affirming healthcare and sex reassignment surgeries, in line with international best practices and norms.