Trans*forming the Constitution

India’s Transgender Persons Bill might undo several years of progressive judicial precedent.

In 1884, a transgender person in Morarabad district of northern India was arrested by police after the person was found crossdressing and singing with a group of women. Given the name ‘Khairati’ in the case files, the person became one of the first to be prosecuted under the infamous Section 377 of the colonial-era Indian Penal Code (IPC), which criminalised “carnal intercourse against the order of nature” – an umbrella term for non-procreative sexual acts. Queen Empress v Khairati was initiated by the police without a complainant. They appeared to have been monitoring the person who was suspected of being a eunuch, leading the presiding judge to commend “the desire of the authorities at Moradabad to check these disgusting practices.”

Intolerance of the state and society towards India’s transgender people continues to this day, as does that law. The nature of discrimination ranges from impediments in accessing education, employment and healthcare, to extortion, harassment, arbitrary arrests and sexual violence. The ostracism forces many to drop out of schools and universities, and pushes some to seek a livelihood through begging or sex work, making them likely to fall foul of the law. While the concerted efforts of activists led to a progressive judgement in 2014, the legislation currently being considered by the country’s Parliament threatens to roll back some of the gains.

The Transgender Persons (Protection of Rights) Bill, which was ostensibly drafted to finally bring about an end to this tragic status quo was first debated in Parliament in 2016, over a century after Queen Empress v Khairati. The first draft of the bill drew flak from members of the transgender community, civil-rights activists and legal experts for making a mockery of the very thing it claimed to be standing for – the protection of transgender persons – and reversing significant strides made in the recent past in ensuring greater rights for transgender people in India. A Parliamentary Standing Committee, appointed to examine the bill in the wake of the criticism, made several recommendations in 2017 to significantly change the original bill. While the text of the updated bill has not been made public since the bill is waiting to be tabled in the Parliament, news reports suggest that only some of the recommendations have been incorporated. Still, with the current status of the bill remaining unknown to anyone but its architects, the rights of the transgender community hang in the balance.

You can read the rest of the article on Himal Southasian where this piece originally appeared.