Jayna Kothari (@jaynakothari) is a Senior Advocate and co-founder of the Centre for Law and Policy Research (CLPR), a legal research organisation dedicated to the defence of constitutional values in India. Her research and practice interests include constitutional law, gender and sexuality law, disability rights, and discrimination law. Jayna argued in the Indian Supreme Court in the 2018 constitutional challenges to Section 377, which resulted in the landmark decriminalisation of same-sex relations in India and marked an important turning point for the trans movement.
Alongside its constitutional work CLPR provides free legal representation to trans communities across India, and is supported by GiveOut under the Antonia & Andrea Belcher Trans Fund. Currently, CLPR is also working to challenge the new Transgender Persons (Protection of Rights) Act 2019, which has been widely criticised by the trans community in India.
To celebrate International Trans Day of Visibility, GiveOut’s Lee Dibben spoke with Jayna about CLPR’s important work to defend and advance the human rights of trans people in India.
What is your role in the trans movement?
Through my work with CLPR, I have played an important role in shaping trans rights in India as a lawyer on many trans rights cases. To a large extent, the trans community hasn’t had an emphasis on the law in their campaigning and work, so my role has been to help understand the issues and to frame the language of trans rights in the law. I was involved in the Section 377 case, which was a particularly significant moment for trans rights. And the recognition of trans rights during the case happened because of our petition. Previously, the case was seen a gay rights issue that was just based on sexual orientation, not on gender identity. This meant that although they referenced “LGBT”, there were no strong, identifiable trans perspectives or voices, or any direct involvement of trans petitioners. It was through our petition that there was a clear articulation of transgender rights and the rights related to gender identity in the section 377 challenge.
What has the reaction been to the growing trans movement in India?
In India, you still see that trans groups need the most funding as they are less well established than LGB groups. But there is a larger cohesiveness across the LGBTQI movement. Initially, it was the LGB movement that was leading the fight, but now the trans communities are leading the activism and raising new issues. So even the older LGB groups are interested in collaborating with trans groups, because they are the new face of the movement. The media also is very supportive about the trans community, as trans activism and talk of gender identity are issues that are taken up with great interest and portrayed very positively in the media.
The courts and judges are also very positive when it comes to trans issues. In 2014 a landmark Supreme Court judgement recognised the right to self-identify one’s gender identity, and ordered the government to provide trans people with quotas in jobs and education in line with other minorities. As a lawyer, working on trans law pushes your boundaries. If you’re interested in gender, trans issues are extremely important because it is a way of looking at gender equality. For example, working on marriage law becomes more complex because issues of marriage equality and many related issues such as adoption and family have to be addressed.
In September 2018 India’s Supreme Court ruled that the criminalisation of same-sex relations between consenting adults under Section 377 of the Indian Penal Code was unconstitutional. This was seen as a landmark victory for the global LGBTQI movement, with decriminalisation in India serving as a model of hope and success for other countries. As well as this, the judgement was of fundamental importance to legal struggles around gender-based rights in India, with the Court framing the removal of Section 377 as part of the effort towards ending gender inequality. In particular, they noted that the legislation rested upon “deep-rooted gender stereotypes” which legitimised discrimination on the basis of gender. As such, since the 377 ruling, the same argument of gender stereotyping has been used to secure the decriminalisation of adultery. The Supreme Court’s approach to decriminalisation in India has therefore created significant scope to further both sex and gender-based rights, with CLPR playing an important role in this. However, the trans community continues to face significant barriers to social acceptance.
What are some of the greatest challenges that the trans community faces in India?
The trans community faces many problems. Although the Section 377 judgement had a huge impact, it doesn’t mean that trans people are no longer criminalised. Changes in the law also don’t address social stigma, discrimination and exclusion in education, employment, or public social participation. For example, in the education system there is no recognition or awareness of trans issues. If there are young people who are gender non-conforming or prefer a different gender identity, there is generally very little recognition of their rights. They face a lot of harassment from their peers. And this, alongside struggles with their families, forces many trans students to drop out of school. This then leads to a continued cycle of economic disempowerment. Trans people are often forced to rely on sex work and begging to survive, with many experiencing homelessness.
They are also likely to experience family violence and exclusion. In India you are made to conform. Trans persons may be forced into marriage, which is also a form of violence in itself. CLPR undertook a study on trans exclusion and discrimination which found that more than 60% of trans people have experienced violence, and that more than 20% have been displaced from their homes. While we don’t have any empirical data on the LGBT community, the trans community is disproportionately affected.
And does religion have an impact upon trans people in India?
On the one hand, radical religious groups tend not to be opposed to trans rights because we’ve always had various cultural identities under the transgender umbrella both in Hinduism and Islam. For example, in certain Hindu communities in South India, you have particular trans groups associated with the religious practices that are part of a Scheduled Caste called jogappas. Despite the cultural identities being recognised, trans groups are not emancipated. They are still marginalised and religious communities are not doing anything for the betterment of the trans community. That is not acceptance because they are only seen as serving a religious function.
India has a long history of gender diversity, with particular groups of trans people occupying important religious and social positions. Hijras are perhaps the best known of these, with hijra characters playing significant roles in some of the most important texts of Hinduism, including the Mahabharata and the Ramayana. However, during the colonial period British authorities sought to criminalise and eradicate the hijra community, including through the introduction of laws such as Section 377. And today, although India recognises a third gender, trans people continue to face discrimination and harassment, and may struggle to access necessary healthcare and legal services to support their transition. CLPR plays an important role in meeting these needs through coordinating its Trans Law Cell. This provides free legal support and representation to trans people across India, empowering them to access their legal rights and freedoms.
CLPR has been at the forefront of the fight for trans human rights in India. What do you see as the priorities for the trans movement?
We need two things: overarching equality and anti-discrimination legislation, and a Gender Recognition Act to enable trans people to change and affirm their gender identity. Section 377 may have been removed, but that’s just decriminalisation. You need positive anti-discrimination measures covering LGBTQI people as well as other marginalised groups including women. While the Section 377 case said that discrimination against people on basis of sex would also include “sexual orientation, gender identity and gender stereotypes”, it only applied to the state and doesn’t cover other sectors. We need wider reaching change
“ALL OF OUR RIGHTS ARE INTERCONNECTED AND ALLYSHIP IS NOT JUST STRATEGIC… IT’S NECESSARY FOR YOUR OWN GOOD.”
And how does that relate to your work on gender equality more broadly?
Working on LGBTQI rights affects our entire understanding of the law and gender. In India the situation around gender equality still has a long way to go, even though it’s been getting better over the past 20 years or so. As a lawyer you see more women practising, more women judges on the bench. You also see more women on professional courses and in professional sectors. There is definitely great improvement. But we are still incredibly far away from full gender equality, with real struggles around gender-based violence and income disparity. Women’s issues are important politically, and parties are seeing they need to include women’s issues as part of their agendas. However, as a political concern, women’s issues are still often low on the list of priorities. But we know that these should be woven into all issues ranging from education to defence to healthcare, and beyond. Straight, cis people cannot say they are not interested in LGBTQI or trans rights, and men cannot say they are not interested in women’s rights. All of our rights are interconnected and allyship is not just strategic, or even just moral, it’s necessary for your own good.
Thank you for taking the time to speak with me today. Is there anything else that you want people to know about the situation for trans people in India?
We’ve made a lot of big strides legally in India, especially in terms of Supreme Court decisions around Section 377 and many other cases. And some of these decisions are extremely progressive compared with legal developments the world over. It’s time that activists, lawyers, and supporters of the movement know about this, and that we speak out about these developments. Raising awareness of this not only gives people a better understanding of trans issues and progress in India, but would help activism in other countries by providing examples of success. If, for example, other jurisdictions wanted to use the Section 377 judgement as legal precedent to decriminalise same sex conduct, adultery or gender stereotypes, they now can – but they need to know about it!