09, Feb 2024 | CJP Team
The recent pride parade in Mumbai on February 3, organised by the ‘Mumbai Queer Pride’ collective, saw attempts to de-align those participating in voicing dissent on the current political environment of India, limiting banners, placards, slogans, songs, etc. to only be about the ‘queer cause’ and nothing else. The guidelines issued by the MQP prior to the parade stressed this. The requirement of “persons, groups, or entities working on intersectional issues need to ensure that their messages are aligned with our cause” stated the guidelines. Many among the community, called these guidelines repressive and an abdication, choosing to skip the parade altogether.
Pursuant to the parade, reports of an altercation between two groups of marchers raising political slogans during the event surfaced. According to a report in the Free Press Journal, Ambedkarite queers alleged that members of the Humsafar Trust, a part of the MQP involved in the organising of the parade, seized posters of Dr. BR Ambedkar that were being carried by them and asked them to refrain from chanting ‘Jai Bhim’. The slogan of ‘Jai Bhim’ is considered as a greeting by many, especially the Dalit community, and is, moreover, a salutation which displays the deep reverence that the marginalised sections have had for Ambedkar’s contribution to their emancipation. As per one of the marchers, the organisers of the said pride parade of 2024 turned an event that was meant to draw attention to the rights of the queer and trans* community into “just a celebration.”
This brings us to the question again- can pride be apolitical? Can a community which cuts across religious minorities and marginalised castes and classes be asked to “desist from raising political slogans”? Can the discourse of those who face double or more levels of marginalisation, owing to their caste, gender identity, religion, be asked to keep these complex issues away from the pride parade?
Intersectionality and solidarity amidst the struggle against caste and capital – Shripad Sinnakaar
When we spoke to Shripad Sinnakaar and asked their views on intersectionality, pride and politics, they said that they were reminded of a poem they had written in the year 2023. Reciting this one line from the same, Shripad wondered “How many generations does it take for a dream to come true?”
Shripad belongs to a fourth generation Dalit family in Dharavi. Dharavi features as a central figure in their writings and work. Their poem details the myriad unending obstacles faced by individuals from the marginalised genders and castes that deter their struggle for equality and justice. As per Shripad, it is this intersectionality that threads issues together to evoke a perspective unique to the Dalit Trans community.
When asked to share their perspective on the role that Mumbai as a city, which is often claimed to be the city of hopes and dreams, actually play in the life of the marginalised person, they stated “This question itself is a deeply political question. The oft-repeated phrase, Mumbai never sleeps, is profoundly a labour question. What is the caste of the people who are rendered sleepless by the city? It is visibly an empirical phenomenon. One that can be answered by simple observation. Who is outside at nights? At Carter Road, Bandra? Highways at Bandra-Kurla-Complex? It is the sex workers, the couples on bikes – those who don’t have the right to the city exercising their right to the city.”
Shripad Sinnakaar (they/them) is a poet and researcher based in Mumbai whose work centres around caste and gender. They have been the recipient of a research fellowship from Centre for Studies in Gender and Sexuality, Ashoka University. During the fellowship, they continued their research on caste and gender, particularly intersecting literature from transgender studies and anti-caste literature. Dharavi is a place which remains central to their work – they have created a literary initiative called Flamingos in Dharavi. Through their project, they talk of issues related to reservation, caste, climate change, wild life, preservation of environment; they have been in conversation with members of the Rohingya community over extinction of birds, a collection of poems that are a part of their project.
According to Shripad, to speak about the Dharavi Redevelopment Projects enables one to broaden the solidarities and struggles imagined because ecology, corporate powers such as Adani, and climate change remains central and very integral to the question of caste. The struggle against these majoritarian and dominant powers cannot be put into boxes and categorised, they stated. Delving deeper into their hopes, Shripad asserts that their politics is like the river Mithi, which flows through Mumbai, which sutures together caste, marginality, and solidarities is central to them.
To Shripad, individuals cannot be brought down to just one identity, their existence is layered and mired within histories, communities, affinities and solidarities, and to limit them to just one part of their being, especially to do so at the cost of reducing one’s struggle, would be a loss. When asked whether they are losing one’s own perspective or specific history being a cost to broadening horizons and building solidarities, Shripad thoughtfully responds by saying, “It is a question about one’s standpoint. Mine is sub-categorisation.”
Elaborating on the politics of sub-categorisation of caste and the clubbing of separate traditions under the umbrella of Hinduism, Shripad stated “For instance, Dalit Christians and Dalit Muslims fight for recognition of their Scheduled Caste (SC) status. In these cases, there is an overt recognition of religions. However, the traditions practice by the Hijra, Jogti, Yellamma & Tribal communities are different from the Hindu religion. To not recognise their practices is to give in to Brahminical colonisation of their religion— to not recognise their sovereignty (with respect to religion), would be an injustice.”
Emphasising upon understanding history and ensuring that the same is not lost in translation while limiting the fight for caste to courts, Shripad further states that “It is important to recognise different histories around caste which cannot be subsumed under a Hindu fold. Caste, thus, cannot be limited to a fight for a legal structure. Caste, its sub-categorisation can be used as a methodology, a standpoint. I use it in my work, as it has a certain centrality to it in the practices of the Hijras, their religion and so forth. (For the Hijras) they are neglected and (much is) lost in translation.”
Pausing for a moment, Shripad then relates the history that is shared by the caste trans* and queer communities to the history of Mumbai, erstwhile Bombay, and brings our discussion to the same point from where we started. Raising pertinent questions, Shripad asks “Would Thane, Mumbra, Dombivli, Kalyan, all of which are peri-urban locale, be included in the definition of the city that never sleeps? Do we include Badlapur when we talk of Mumbai? What about Govandi, Mankhurd or Dharavi? Govandi has the worst slums, even worse than Dharavi. So does Bandra, in fact, the railway station is a slum too. Will these places be included in the (idea of Mumbai) avenues of changes and hope and dreams? These are the kind of questions I am interested in thinking about.”
To Shripad, Mumbai exists of slums as much as of Highrise buildings, just as a Dalit queer and trans* individual is as much their caste identity as their gender identity and sexual orientation. Shripad states “None of these tall buildings can exist without slums. None of them would exist without the labour of minorities and lowered castes. It’s the history of the making of slums & chawls: Mumbai needed labourers but not a good living condition. Which is why the chawls came up. The slums, the chawls, they are sites where the unwanted live.”
Shripad concludes by sharing their thoughts about the year 2023. To them, the year gone by had been the year where the “crisis” (of the pandemic) had ended, and suddenly people were confronted with “the ordinary of life”. Shripad pointed out that, “During the lockdown, we were all existing within multiple kind of constraints, and restrictions. However, once the lockdowns ended, we were faced with multiple crises, including that of having to carry on. Everyone was encountered with now what? However, there was no looking back. But in these times, I think the normative ideas of friendship and family were intimately shaken – a dispossession of the normative ways of relations we structure our lives with.”
Institutional discrimination in the classrooms and workspace continue, no redressal mechanisms available?
The NALSA judgment (National Legal Services Authority v. Union of India) came out about a decade ago, forming a pivotal moment and milestone in the fight for rights of the transgender community. The judgement recognised transgender people as an entity belonging to “third gender” and directed the government to take measures to protect the rights of transgender people in India. However, many pitfalls and pervasive precarity mar the everyday life of transgender individuals with discrimination, violence, and brutality, especially at the hands of the state, continuing to remain strife and rife.
Vaivab Das (they/them) spoke to the CJP team about what came after the NALSA Act and how the executive, by bringing in the controversial Transgender Persons (Protection of Rights) Act 2019, shed all its responsibility towards the community and rather snatched the protections guaranteed by the courts through the NALSA judgment. It is essential to highlight here that the union government had faced resistance by many against the said Act and had witnessed protests by the members of the community requiring a transgender people to “compulsorily” go through medical procedures to prove their trans-ness. Arguments were also raised regarding the Trans Act’s failure to implement the guidelines laid down by the NALSA judgement, which had focussed on autonomy and self-identification, and added invasive checks and procedures to be followed while granting certificates to transgender people.
Speaking on this, Das said, “The Trans Act 2019 didn’t take much space in the public imagination. That’s where we disconnect. The Trans Act took an undemocratic approach, where protection was granted on the basis of a certain authenticity of trans-ness to rescue trans people. However, the construction of authentic trans-ness is exclusionary. It is sad that there are newer ways of gatekeeping within marginalised communities. A movement is a movement with ground support, if it is without ground support, then it is only a moment.”
Despite their being a NALSA and a special act to protect the rights of the transgender community, the on-ground truth, as shared by Jane Kaushik (she/her) in her conversation with CJP remains far from good, with institutional discrimination continuing abound, especially at workplaces. Jane, who is an activist and teacher by profession, was removed from two private schools, one in Gujarat and the other in Uttar Pradesh, reportedly on account of her gender identity. The case is currently being heard in the Supreme Court at the moment by a bench of Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Misra. During the last hearing of the case, CJI Chandrachud had expressed his concerns over the treatment being meted out to Jane for being a transgender person. During the hearing, the counsel representing Jane in the court had highlighted the issue of social stigma that the teacher had been facing in the women’s hostel and how the school environment has been unwelcoming of her sexual identity. Her counsel had in clear words argued that “They cannot accept the fact that she is a trans* woman,” as per a report in LiveLaw.
Speaking to CJP, Jane confirmed that facing discrimination has become a norm for the transgender community, and these two incidents that went viral in 2023 were not no exception but a continuation of the discrimination that she has been facing her entire life and in her career. “They either outrightly say ‘No, we will not take you’, or they ask me to join but to hide my gender identity. They would ask me to work as a female and hide my identity.”
To explain her situation, Jane asked us to imagine a situation where we were forced to lie or hide about their gender identity. Jane asked, “How would you feel if you as a woman are forced, and even encouraged, to pretend and tell the world that you are a man? As a matter of course, this has been a cause of great anguish and mental distress for me.”
Elaborating upon the vicious form of discrimination she faced from students as a transgender person and the derogatory slurs that were thrown her way, Jane provided “I can hide my gender, but I cannot hide my body. The students hurl various kinds of slurs at me, such as ‘Chakka’, ‘Hijra’. They constantly engage in body shaming me.”
She further pointed out that, “There is no mechanism to address this. I believe schools should sensitise people on issues of gender identities.”
On being asked if any action had been taken against any such incident, “Never has any sensitisation or addressal happened for such acts.”
For basic rights and implementation of the NALSA guidelines, we have to fight the government
The issue of the lack of effective mechanisms in place to address the concerns of the transgender community, explained by Jane above, were also shared by Kiran Nayak (he/him), a disabled trans man. Kiran is a social activist from the Southern part of India who works on the matter of health, which is a basic right, being denied to the transgender community, especially those that suffer from disabilities.
While in conversation with Kiran, he stated “After Covid-19, things have gotten way worse, especially for transgender people who suffer from disabilities. There are health issues that medical staff are not equipped or prepared to handle, and that many of us from the community cannot afford. I had lost my job during the pandemic, which made my situation worse. After that, I had a lot of issues finding a house as well. Landlords would not give homes to rent to us because of my gender identity. I was compelled to open up a general store with my wife in a village to make a basic income, however we suffered a complete loss after this. My mental health too was in shambles. I suffer from rheumatoid arthritis and for that I have to spend around 7000-8000 every month for my medical treatments.”
Highlighting the issue of hospital staff needing sensitising regarding the transgender community and their basic needs, Nayak expressed his anguish and states “When I go to the doctor, how do I go and get treatment? It is impossible. There is a strong need for the hospital staff to be sensitised and made aware about gender identities and the need to be sensitive to these.”
Discussing the ineffectiveness of any form of government action, Nayak argues that there has been no implementation of any policies favouring the transgender community by the state. Nayak says “When politicians want your votes, you are welcome. However, you are just used for your vote. Because even though there are many schemes, judgements and policies that have come in the favour of the transgender community, there is implementation. I demand the state government to implement these schemes and policies at the state level. The situation in these states is exceptionally bad.”
The government, as per the transgender community, have not done justice to the guidelines set by the NALSA judgment in terms of providing horizontal reservations as well.
In March of 2023, an application had been filed by Grace Banu, a Dalit trans woman and activist who runs the Trans Rights Now collective, seeking clarification from the Supreme Court regarding the reservation reference made in the NALSA judgement. Banu had petitioned that there was a need for a distinction between horizontal and vertical reservation as while delivering the NALSA judgment, the Supreme Court had directed the Union and the States to treat transgender persons as a socially and educationally backward class and provide them reservation in education and public employment. However, the Court had not provided how the reservation needed to be implemented and had rather stopped short of recognising the particularity and intersectionality of disadvantages that the transgender community faces.
On March 27, 2023, the Supreme Court bench led by CJI Chandrachud had refused to hear the application moved and had subsequently disposed off the matter.
The longstanding demand for horizontal reservation for the transgender community has been raised for decades, even before the NALSA judgement had been delivered, as the same would have allowed community members to seek reservation within each affirmative action category, including Scheduled Caste, Scheduled Tribe, other backward classes, and the unreserved general category.
Under Article 16(4) of the Indian Constitution, Scheduled Castes, Scheduled Tribes, and other backward classes had been deemed as recipients of “social reservations,” a category which thus served to create vertical distinctions. However, on the other hand, reservations benefiting women, individuals with disabilities, freedom fighters, and project-displaced persons were separately considered as “special reservations”, forming horizontal categories that intersected and came under categories with vertical reservations. To provide in brief, special reservations are a part of the existing social reservation categories. This is a formation that understands that marginalisation and social identities are an interlinked and intersectional phenomenon that need a layered understanding to deal with. Thereby, the transgender community seeks to demand horizontal reservation quotas.
Speaking to CJP, Vasundhara* (name changed to protect the identity of the individual) stressed upon the necessity to have horizontal reservation in educational intuitions and public employment, and stated that, “It is an absolute need of the hour to have horizontal reservations. In Karnataka, horizontal reservations have already been implemented for government employees. We need this in educational institutes, public employment. Furthermore, we need horizontal reservation for transgender people in all government schemes for the people of India. Men and women are direct beneficiaries of these schemes, including reservation in education. Why can transgender people not enjoy the same access to equal opportunities?”
Colonial era law done away with, colonial era gaze to marriage stays: The Courts
As with all struggles, there are pitfalls and successes. While referring to the politics of the courts and the colonial gaze that it holds over the queer and the trans* community, one shall begin with the one victory that the community, in the legal fight for rights, was able to secure in the year 2023.
In the past year, the Telangana Eunuchs Act, originally known as the Andhra Pradesh Eunuchs Act, was abolished. The abolition was wholly welcomed by the transgender community, who referred to the draconian legislature as dehumanising to the transgender community.
To provide a brief history, the now struck down law had been introduced in the year 1919 and unlawfully mandated registration for transgender individuals with the authorities and also required community members to disclose details such as their place of residence. The basis for such registration was reportedly due to a “reasonable suspicion” of committing offences, such as abducting boys or engaging in unnatural activities, by the community members. Stripping away all legal protections otherwise available to all citizens of India, the Act provided authorisation for the arrest of transgender persons without the requirement of a warrant, and could be used to subject such arrested individuals to a two-year imprisonment if found dressed in female attire, participating in public entertainment in any public venue, or in the company of a boy under sixteen years of age.
Trans activists and others had challenged the legislation, labelling it an “outdated” legal framework. During the legal battle, social activists had drawn parallels with the now partly struck down Section 377 of the Indian Penal Code, and where the part that constructed the idea of “unnatural offences” was read down, as they questioned the relevance and fairness of such restrictive measures. Trans activist Vyjayanti Vasanta Mogli had challenged this act, along with a batch of petitioners, that had claimed that the law was “unconstitutional and discriminatory.”
The team of Citizens for Justice and Peace spoke to trans activist Shalini* (name changed to protect the identity of the individual) on the issue of the Telangana Eunuch Act. As stated by them, the legislature was an oppressive and colonial stature, a “statute that had to go owing to the dehumanising aspects it contained with regards to the transgender community.” Shalini further stated how the Act mandated for transgender people to be recognised as a ‘Eunuch’ under this act to register themselves with the authorities. Elaborating on this, Shalini highlighted how the name of the legislature itself was extremely derogatory, comparing the usage of the word “Eunuch” for a transgender person to be as dehumanising and deplorable as using the term “female” while referring to a woman. For the transgender community, using the above-mentioned word reduces an individual or community entirely to their genitalia.
As stated by Shalini, the essence of this Act was similar to the British era Criminal Tribes Act which criminalised certain tribal groups, putting them under the lens of scrutiny of the executive merely for existing, and stripped away their dignity. The Act offers impunity to the average person, whereas the transgender individual would be in turn treated like a criminal. It was a law that prevented the transgender community from receiving and practising their constitutional rights. Therefore, just like Section 377, Criminal Tribes Act, the (Telangana) Eunuch Act too had to go, reiterated Shalini. The bench of Justice CV Bhaskar Reddy and the then Chief Justice Ujjal Bhuyan of the Telangana High Court, which ruled down the act, had categorised the law as “an assault on the dignity of transgender people.”
While the aforementioned colonial act was done away with, the colonial gaze of the courts towards the queer and trans* community continued. On October 17, the Supreme Court of India had pronounced its judgment on the issue of extension of marital rights to the queer community. A Constitution bench of five-judges headed by the Chief Justice of India D.Y. Chandrachud had declined to allow recognition to same-sex marriages in India, leaving the issue for the Parliament to decide upon. The bench had also comprised former Justices S.K. Kaul and S. Ravindra Bhat and Justice Hima Kohli and P.S. Narasimha.
Referring to the same, Priya* (name changed to protect the identity of the individual) stated “Although, I knew I cannot place all my hopes on a judgement, it was very disappointing nonetheless. While I do not uncritically subscribe to the idea of marriage, I still feel having similar, and equal, rights to that of cis-gender and heterosexual people would have been a step in the right direction. The fact that these are simple things one has to fight for in India’s biggest courts is a mental setback, and kind of tends to break morale, if one thinks of it.”
Ironically, in the judgment, the Supreme Court bench while refusing equal marital rights had acknowledged the discrimination that the LGBTQIA+ community faced from the state and held that the court does not feel required to get into “judicial law-making” on issue of recognising same-sex marriages as the same fell outside its purview. The court also ruled against granting adoption rights to unmarried same-sex couples. Referring to this, Priya stated that, “It is a dehumanising feeling, you feel that the people don’t see you as human.”
Vaivab Das (they/them), a scholar, also spoke to CJP on the nuances involved in the equal marriage legalisation debate and the ramifications faced by them in everyday life. Referring to the rights of property and capital that come from the legal acceptance of union, something which the heterosexual couples enjoy, Vaivab said that “With respect to the marriage-equality discussion, I think rather an ideological-theoretical divide whether one is against marriage or one if for marriage is immaterial. There are more material concerns, for instance of property. Marriage is essentially about capital. This is missing from the discussion. The divide is actually about experience, not ideology. For instance, there are those who do not or have never had access to property. For many, marriage is not lucrative. Thus, the articulation of marriage is rooted in privilege. There are, of course, transgender people who marry but in ways that fall outside the purview of the same-sex marriage purview. However, of course, I don’t support the way that things are, I don’t support non-recognition. It is discrimination. However, the articulation in the theoretical scaffolding about marriage, because marriage is unequal.”
Bringing into view the politics of the legal battle, the same-sex marriage issue and the exclusions faced by the non-upper-caste and non-upper-class members of the community, Vaivab states, “Questions of caste, class, religion always play out. My point of contention is that lines are always drawn on ideological inclination. But, what position would I have, if I come from a small town? I don’t have an affinity towards a particular ideology, my ideology stems from conversations with people. Hence, I believe, experience is what structures people, not ideology. The same-sex marriage discussion is also problematic in the very phraseology that structures it. ‘Same-sex’ marriage is given to media by a few lawyers. However, it also comes with its own set of exclusions. There are people who are from the LBT and trans* sections who have offers robust feedback on this.”
A political existence of many layers
The reading down of Section 377, the NALSA judgment, and the Trans Act form the basis of the rights we now seem to demand from the courts and the state. The fight for “same-sex” marriage can only be sustained when we recognise the community’s history, especially the contribution made by the transgender community. And these fights cannot be understood in isolation, as these were political resistances.
The discrimination that the community faces for their sexual orientation and/or their gender identity at the hands of society and state cannot be separated from the discrimination that the members face for their caste, creed, religion, class, etc, rather the resistance to such discrimination sits at the intersections of these layered identities, and to separate them, these subaltern identities, will result in erasing of our history.