The newspapers on 7 September 2018 were filled with advertisements from major corporate brands and houses celebrating the Supreme Court verdict reading Section 377 of the Indian Penal Code, effectively decriminalizing same-sex activity (and homosexuality broadly as understood by the general public). However, this exuberant reaction was not seen when the Supreme Court in its landmark NALSA verdict spoke emphatically in favor of trans rights, granting trans persons the right to self-determination of gender identity, reservations in higher education and employment, and directions to the state to provide healthcare facilities. It was confined to a corner in the newspaper. This comparison is drawn not to diminish the struggles of queer and indeed many trans folx against Section 377 or pit one community against the other. Rather, it seeks to highlight how trans folx are systematically marginalized in all spheres of society, polity, and economy. This can be seen to such an extent that their victory does not merit celebration in the public sphere.
In this article, I seek to understand what would transgender justice mean in our contemporary times in the backdrop of long struggles by gender and sexual minority communities. I draw on Iris Marion Young and Nancy Fraser to frame a notion of transformative justice that centres trans persons and seeks to provide conditions for the full development of their capabilities and enjoyment of their freedoms. It is crucial, to begin with, to contribute a theory of change. A theory of change has two components. The first component is a theory of what causes the problem or violation that one seeks to address and the second is a theory of what will cause changes in these causal factors that are creating the violation. If either of these components is incorrect, the intended intervention will not be effective.
Fraser describes injustice in a simple manner. She says that inequalities and oppression when experienced at a structural level become injustice. She theorises injustice as being that of maldistribution and non-recognition. The first deals with structural socio-economic injustice and the second with socio-cultural injustice where one is invisibilized in the eyes of society. She writes that they are not binaries but rather feed into each other. One injustice cannot exist without the other. Thus, it is rather a spectrum of injustice. It depends on the particular marginalized community/individual where they lie on this spectrum. In the case of trans persons, we see how they are invisibilized in the public sphere wherein their voices are not taken into account when shaping public policy, face brutal oppression in the form of multiple forms of violence, and are also denied employment forcing many trans persons to take up sex work and begging. The third form of injustice that Fraser adds later in her theory is that of lack of political representation, thereby covering the realms of economy, society, and polity. Thus, injustice fundamentally deals with structural institutional arrangements that are wired in a way that disadvantages individuals from certain marginalized communities.
Picture/The New York Times
Any discussion from hereon on seeking transformative justice for trans persons will necessitate a discussion on the concept of citizenship. Citizenship refers to the compact between the citizen and the state wherein the former gives their allegiance to the state in return for the latter’s protection and conferment of certain rights, which differ from state to state. In this context, it is crucial to ask two important questions. Are trans persons considered citizens by the state? What is the nature of their relationship with the state and what is the subsequent role of their position in society? As we will see, the answers to these questions will help us understand transformative justice.
Jessica Hinchy writes about the colonial govern-mentality that was shaped by Victorian ideas of gender binaries and sexual deviance that framed the Hijra (derogatorily referred to as ‘eunuch’) as a ‘problem’ that had to be kept in check. In the North-West Frontier province, in particular, the government engaged in a campaign to exterminate them. This was given shape through the Criminal Tribes Act (CTA) of 1871 which granted the police increasing surveillance powers such as keeping registers of the personal details, “prohibited registered people from wearing female clothing and ‘adornments’ or performing in public; provided for the removal of children in registered people’s households, and included provisions that interfered with Hijra discipleship and succession patterns”. Given that the colonial period marks a transition period when Indian people begin moving from being ‘subjects’ to ‘citizens’, the history of trans ‘citizenship’ is marked by systemic violence and oppression.
Picture/The New York Times
Project Pehchaan in its study reported that there were several challenges to economic inclusion for trans women such as sexual and gender nonconformity, poor health care conditions and difficult legislative environment. An average monthly income of 6,394 rupees underlines extreme poverty. Peoples’ Union for Civil Liberties, Karnataka (PUCL - K, 2003) in its groundbreaking report wrote in detail about the all-encompassing nature of violence faced by trans persons at the hands of the state, society and media. l system through its various laws contributes massively to an inequitable system which is openly hostile to an atmosphere that facilitates the full realization of rights and the full development of the capacities of trans persons. While a full critique of the legal developments in the realm of legal rights is beyond the scope of this article, I will attempt a brief summary. The NALSA verdict as mentioned earlier gave self-determination of gender identity, which means that trans persons would be free to determine the gender that they identified with, based on Argentina’s model. This is crucial because they would be free from the humiliating process and the invasive gaze of screening committees that would inevitably violate their bodily integrity and right to self identify. It would not be necessary to go through surgeries or Hormone Replacement Therapy (HRT). I have mentioned the other benefits above.
The government brought out the Transgender (Protection of Rights) Act 2019 that went against the ruling of the Supreme Court by instituting a two-tier process, To identify as trans you need to submit an application to the District Magistrate along with a report of the psychologist of a government hospital. To identify as male or female, you need to attach a certificate from the Medical Superintendent or the Chief Medical Officer that you have undergone a surgery. There are several problems with this. Given the extreme poverty that exists among many trans persons, how many can afford expensive surgeries? Moreover in a country where trained doctors and psychologists have been caught making sexist comments and prescribe conversion therapy to queer folk, expecting them to understand transphobia is far fetched. Most importantly, it goes against the principle of self-determination of gender identity guaranteed by the Supreme Court. Details on protective social security infrastructure remain vague. It also does away with reservations that were granted by the Supreme Court. How do we expect change then? One might recall how quickly (in a matter of months) and without any notice, the EWS reservation was provided. Then the question arises, why the refusal to give trans people their basic rights? The key to transformative justice for trans persons lies in Iris Marion Young’s Differentiated Citizenship. Differentiated citizenship recognizes the inherent power dynamics between different social groups and the state and the need for representation of marginalized communities. Applied in this case, it would necessitate a renegotiation of the compact between trans persons and the state, wherein the state recognizes the power dynamics at play and centres trans persons in the development process. It is their voices that need to be heard while drafting legislation and designing welfare programmes for their development. Otherwise, it all remains a farce.
Chand is a research scholar pursuing MPhil in women’s studies from Jadavpur University. They are interested in looking at the intersection of trans lives and development paradigms.