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The Indian Judiciary casts a strong ray of hope on Trans rights

Shivy Bhat
Press conference addresses the harassment of LGBT activists who helped the effervescent Shivy (Youtube)

A breath of fresh air permeated through the queer movement in India on the 5th of October, 2015, with the Delhi High Court upholding the right of a transman to exercise his free choice in leading a fulfilling life.

The story in short – Shivy (born Shivani Bhat), a 19-year-young transman, had come over from the USA (where he resided, though an Indian citizen), and had been wrongfully confined in his grandparents’ house, with his passport and greencard being taken away from him – a sad reflection of societal realities where there is more often than not an absolute lack of understanding and support, a tendency to suppress, to want to stamp out any trace of that which is not understood.
He then somehow managed to get in touch with Nazariya, a resource group of queer feminists, seeking their help in transporting him to a safer place (New Delhi). As is often the case in India, especially where young people run away from their homes, his family filed a missing person complaint before the police. Shivy was joined in his struggle by a number of prolific lawyers and activists (Notably Menaka Guruswamy and Arundhati Katju, who have been leading lights in the queer movement in India for over a decade), who then moved the Delhi High Court seeking for protection for him as well as the return of his passport and green card.

The lyrical judgment, which opens with an excerpt from Rabindranath Tagore
“Go not to the temple to bow down your head in prayer,
First learn to bow in humility before
your fellowmen.
And apologise to those you have
– takes forward the spirit that the Indian Supreme court gave birth to with the extremely incredible NALSA judgment which recognised the rights of the ‘third gender’ to lead a life of dignity, and entrenched a judicial will to guarantee equality of the law and equal protection of the law to this section of the most marginalised community in India.

The Hon’ble Justice Siddharth Mridul acknowledges the extreme courage that it took for Shivy to take the steps that he did, and goes on to make some pertinent observations on the state of affairs, “…those who do not conform, render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracised severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded. ” He makes it extremely clear that the inalienable rights protected by the Constitution cannot be taken away from people belonging to the trans community, and calls on us to ‘mainstream’ this community as the time is ripe for social change in this regard.

In a true fairy tale ending, his passport and greencard were returned and his parents undertook to support his education. To quote the judgment, “All’s well that ends well.”

And yet. My own two bits of reservation with this otherwise excellently worded judgment –

1. The fact that Justice Mridul referred to Shivy in the feminine pronoun throughout the judgment is indicative of no small measure of carelessness, given that the contestation in these instances arise from the right to use and be recognised with the gender pronoun of one’s choice. Each “she”, “her”, “hers” sent a little shudder down my spine at the carelessness of it all.

2. This judgment could have been a good tool to drive a wedge into the tightly jammed door that is the decriminalisation of the queer community. Every judicial pronouncement on this issue, in my humble opinion, could use a mention of how the existing problem with respect to the elephant in the proverbial room (i.e. Section 377 of the Indian Penal Code, which has the effect of criminalising homosexual sexual conduct) has been blindsided.

Apart from this – kudos to the Delhi High Court. Powerful strike where it was sorely needed!

Padmini Baruah
I'm a student of law at the moment, and have little opinion on "morality". The only morality I know is integrity and freedom of choice. Stuck in a country where it is criminal to be queer at the moment, it is of deep interest to me, personally and otherwise to be actively involved in the rights movement. Freedom of expression, and NO GOING BACK. So there.


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