The gap between the passage of a law and its proper implementation can be long. It has been 10 years since the Supreme Court passed the historic NALSA judgment, recognising transgender people as the ‘third gender’ and affirming that the fundamental rights granted under the Constitution of India are equally applicable to them. This recognition is yet to translate into positive action. In West Bengal, for instance, the top court’s direction to treat trans people as socially and educationally underprivileged classes of citizens and extend to them reservation in admissions to educational institutions and in public appointments has not been put into practice.
There, evidently, can be chasms in the spirit as well as the letter of two legislations. For instance, the Transgender Persons (Protection of Rights) Act, 2019 asks for proof of surgery or hormone treatment before issuing a gender-change certificate — in contravention of the NALSA judgment that mandates the right to identify one’s gender without medical intervention. The Act also omits any mention of reservations in the public sector. Recently, the Calcutta High Court, responding to a petition, asked the West Bengal government to ensure 1% reservation for transgenders in all public employment. Such a step could indeed address the elisions that stifle trans people’s access to employment and literacy. This, in turn, forces a great number of them to resort to sex work or begging at the risk of their health and dignity. Importantly, affordable testing centres for HIV, a common ailment in the community, are also rare, as are dedicated clinics for trans people. Shockingly, other discriminations are still a part of the law. The TPPRA, for example, proffers lighter punishment for sexual abuse against trans women vis-à-vis cisgender women. Worse, little to no credible government data exist on trans people since 2011. This — wilful? — invisibilisation affects sexual minorities, in particular, undermining the impact of affirmative action, if any. Then, there is the burgeoning data on suicide in this constituency on account of emotional abuse and discrimination. Astoundingly, the latest figures from the National Crime Records Bureau claim that no suicide has taken place in the community across 19 metropolitan regions, a suggestion that has been contested by activists. For trans rights to materialise, empathy and emancipatory support need to replace the prevailing culture of patronising benevolence.
