By Meenakshi, National University of Advanced Legal Studies, Kochi
& Abin P Shaju, Bharata Mata School of Legal Studies, Kerala.
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| Source: Samuel Kubani/AFP via Getty Images |
Prejudice displayed against that which one does not identify with or possess adequate knowledge on the subject of, has been palliated as justifiable human behavior since time immemorial. It could be stated that India has come a long way from categorizing persons under two very specific gender identities, by presenting developments such as the NALSA Judgement. However, the mere recognition of a third gender does not amount to complete comprehension and resultant eradication of the deep-seated social stigma, the presence of which may be identified within the Criminal Justice System as well.
The Criminal Justice System is primarily comprised of the Legislature, Enforcement, Adjudication, and Corrections. Analyzing the acts of these four pillars reveals why reframing the relationship that exists between transgender people and the System is an outright necessity to ensure that apt pathways for attaining justice exist.
GENDER DISCRIMINATION AND ITS MANY FORMS
The widespread neglect of the grammatical aspect of the term ‘Transgender’ apropos of applying the same as a noun and not as an adjective, even in revolutionary judgments such as that of NALSA v. UOI, may be considered as the starting point on an extensive list of derogatory and discriminatory practices that transgender persons are subjected to incident reports that have been prepared by organizations such as the Alternative Law Forum and Peoples Union of Civil Liberties portray a picture of the irrefutably antagonistic relationship that exists between the Police and transgender persons. The affidavit submitted to the Supreme Court on police officials raping Kokila, a trans woman, elaborates on such inconceivable torture.
In 2015, incidents of sexual assault, harassment, and rape of five Transgender persons lodged in a jail in Mysuru had been reported. Furthermore, the very segregation of transgender prisoners solely based on genitalia portrays the severity of the derogatory practices that exist within the system. According to such a procedure of segregation, a report is sought from the prison medical officer during the time of admission confirming whether the prisoner has male or female genitalia. Subsequently, such prisoners are submitted to the male section if they possess male genitalia and to the female section if they possess female genitalia, thereby amounting to utter discrimination exercised against transgender persons who have not undergone sexual reassignment surgery. Considering the expense incurred for and social stigma attached to such medical processes, it would only be right to state that a person should not be required to undergo sexual reassignment surgery to identify as of a different gender. The same has been established via The Transgender Persons (Protection of Rights) Act as well by enunciating on the aspect of such medical processes not forming a mandate to identify as a transgender person.
THE INSUFFICIENT INCLUSIVITY CONUNDRUM
The vulnerabilities of transgender persons under enforcement and correctional systems would be better understood by scrutinizing the drawbacks present in the legislative framework of the nation. Such an analysis would prompt one to almost immediately draw attention to the primary penal laws. The Indian Penal Code and Code of Criminal Procedure are legislations that are discriminatory towards the transgender community as they have not been placed within the ambit of rape laws and laws against unnatural offences. Even though the offence of “sexual abuse” has been included in provisions established under The Transgender Persons Act alongside other offences such as causing harm or injury to life, the gravity regarded to such provisions in comparison to those contained in the penal laws mentioned above is negligible. This variation in the accorded significance is brought to light when considering the paltry sentence of not more than two years that has been decreed under the Transgender Persons Act for such offences, as opposed to the minimum punishment for rape under the Indian Penal Code being a sentence of seven years.
RECOGNITION VIA ADJUDICATION; IS THAT ALL?
Precedents such as Nangai v. Superintendent of Police and T Thanasu v. Secretary have been established in favor of transgender women seeking employment under the ‘woman’ category. However, the System has not yet adequately enforced such alleged equality in any constituent of the society. When the Criminal Justice System of the nation is approximately entirely composed of cisgender men and women, the prepossession in favor of the same becomes all the more evident.
It is true that the NALSA Judgement has succeeded in establishing numerous Constitutional guarantees to transgender persons, thereby ensuring recognition. In spite of this, the question of whether a transgender woman would receive equal protection and would be entitled to the same special provisions under Articles 15 and 16 of the Indian Constitution remains unanswered. One among the most widely discussed Constitutional guarantees decreed by the Hon’ble Court by means of this Judgement and in consonance with the Transgender Persons Act, would be the right of transgender persons to self-perceived gender identity falling within the ambit of Article 21 of the Constitution - a right which, ironically, is still blatantly violated by contradictory processes such as those followed in Indian prisons in the name of segregation.
CONCLUSION
Beyond the man-woman binary, there are as many as 58 gender variants. To eliminate the internalized stigma that exists against said fact and thereby ensure the eradication of discriminatory practices against transgender persons, the Criminal Justice System of the nation must first achieve the same with regard to its own practices. For instance, the Criminal Law (Amendment) Bill, 2019, which seeks to amend the IPC to include gender-neutral laws would be an exceptional leap forward if implemented. Similarly, International documents such as the Nelson Mandela Rules (2015) may be relied on to implement minimum standards concerning the treatment of transgender persons in prisons.
In conclusion, active efforts on the part of the System are crucial to achieving a functional structure that promotes gender inclusivity. Only then can discriminatory practices against transgender persons be erased and true equality is achieved; be it internal or external to the boundaries of the Criminal Justice System.
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