Landmark Nalsa verdict: ‘10 years later, why are trans people still at red lights?’

When Shreegauri Sawant petitioned the Supreme Court to recognise the rights of transgender people a decade ago, she did not have much hope. To her surprise, the Nalsa (National Legal Services Authority) judgment became the bedrock of her community’s civil liberties in India — recognising the sex-gender distinction, creating a legal third gender category and issuing directives to state and central governments to ensure fundamental rights for trans people. Today, she, yet again, is not feeling much hope.

“The visibility that trans people have is because of us, not the government. Class is such a big factor — people with coloured hair in big companies may be better off, but the trans people who were at red lights ten years ago are still at red lights,” says the activist who runs the NGO Sakhi Char Chowghi Trust.

The landmark Nalsa judgment, which came on April 15, 2014, defined gender as ‘the innate perception of one’s gender,’ opening doors for self-determination.

Lawyer Tripti Tandon, deputy director of the Delhi-based Lawyers Collective, says, “As someone who was part of the legal process in Nalsa, it was a monumental win. Before, there was some sporadic litigation, but transgender people were non-existent legally. Courts were not even an avenue they could access.”

She remembers a client who would always carry a print-out of the judgment to remind people of where the Supreme Court stood. Another’s family accepted their identity after the judgment.

Its directives to state and central government fell largely under three buckets — one, self-determination of one’s identity. Two, it asked governments to ensure inclusion in social welfare schemes and third, to create a system of reservations for admission in educational institutions and for public appointments.

Muskan Tibrewala, assistant director, Law and Marginalisation Clinic at the Centre for Justice, Law and Society, who provides pro-bono legal services to trans people, argues that while the momentous judgment led to normative recognition of the community, efforts over the last 10 years to turn that into substantial impact have been lacking.

“There are clampdowns on begging, transgender state boards are not working in many states and only two states have set up transgender protection cells in police stations as directed. An activist in Haryana had to go to court to make that happen,” says Tibrewala.

Others agreed that while Nalsa created systems to access social change, trans people are still having to fight each step on the way. As Sawant puts it, “It’s like inviting someone to your house for dinner but saying you can only come if you bring a silver plate and golden spoon.”

ShowQuotes

Struggle for ID cards

The judgment, and The Transgender Persons (Protection of Rights) Act, 2019 that stemmed from it, have spoken of self-identification of gender.

“That is the part of Nalsa that has got the most implementation. Before this, you would have to get sex reassignment surgery, but now there are two certificates. You can self-identify as trans legally, but if you want to legally identify as a man or woman you need some kind of medical procedure like HRT or a psychiatric evaluation,” says Tibrewala. “The problem is that the process on the ground is badly implemented.”

Activist Vyjayanti Vasanta Mogli, who was also a petitioner in last year’s marriage equality case, points out the many hurdles.

“Firstly, one has to get a transgender ID card through the National Transgender Portal. But, in Telangana where I work, there is a backlog of almost one and a half years. Collectors and district magistrates are not sensitised, and neither are clinical psychologists and psychiatrists whose evaluation is needed for certificates. They still search for pathological causes of our identity,” says Mogli.

Tandon has heard from clients that officials had no idea trans men existed.

Quota dilemma

Reservation is the sphere that has seen least progress, says Tandon.“It’s worked out in states like Karnataka, but it’s been left to states and local activists to see if they can get this demand moving.”

Plus, the judgment treats being transgender as a caste identity, so if you’re a transgender person who is Dalit, you have to choose which identity is affording you reservations, Tibrewala points out.

The community calls for horizontal and interlocking reservations, which account for the caste heterogeneity of India’s trans people.

Begging Bans

Recently, Pune police banned begging by the transgender community.

“It’s easy to say don’t beg, but are we getting a single penny to survive? Are we getting jobs? No one is begging because they want to,” says Sawant.

Kalki Subramaniam, who serves on the National Council for Transgender Persons, adds, “Without giving opportunities of education, entrepreneurship or instating livelihood initiatives, how can the system boycott trans people from begging? It’s stupidity and arrogance. On one hand, we are excluded from our families, leaving people with no choice but to beg or do sex work.”

It doesn’t help, Tandon adds, that demographic data on the community is sorely lacking. “When it comes to the mandate of Nalsa, to extend welfare measures or have trans friendly health services, all of that requires some sense of the population size.”

While the private sector, particularly MNCs, are making progress – offering health insurance to trans employees, for instance, this is still an anomaly, says Mogli. “If you walk into the average private company or sole proprietorship, I don’t think inclusion is on their agenda.” Plus, there are barely any transgender employees in the public sector, she says.

Concerns about violence

Mogli says the 2019 Act is “a joke” when it comes to provisions for atrocities against transgender people. “The legislation was in response to the mandate enshrined in NALSA. However, the sentence is 6 months to two years, and perpetrators can get police station bail — they don’t even have to go to court for that.”