A struggle against social morality

In the last six years, there have been three interesting judgments that have jeopardised and re-strengthened the movement of marginalised sexualities and genders. The movement, which started actively in 1993-94, had struggled hard to be inclusive and work out rights-based demands and not accommodative ones.

The privacy argument started in 2002 with people protesting about spatial privacy, that is consensual sex in ‘private’. It was changed to include decisional privacy and privacy of choice; choice of the kind of love, whether homosexual or choice of gender is private to the person, as a decision and as a choice. This is reflected wonderfully in the Naz and Navtej Johar judgment. The actual challenge is regarding how these progressive judgments translate on the ground, in families, at police stations, at mental health institutions and the lower courts.

After the Naz judgment in 2009, the spirit of the movement grew with the strong link between sexuality and gender. We all know that sexuality and gender are deeply connected and deeply independent. And if we do not problematise the two by analysing them in the context of caste, class, economy, labour etc., we just land up in the simple normative narrative of hetero-patriarchy. The Naz judgment of 2009 and the Navtej Singh Johar judgment of 2018 actually do this and open up many possibilities for the survival of the marginalised sexualities.

On the other hand, the NALSA judgment in 2014 on the recognition of the rights of transgender persons, (a life-giving judgment), accords rights but does it in a restricted and complicated way. It leaves many loose ends as it exists. For example, while it does identify self-declaration of gender, it also proposes a board process that authorises the self-declaration. While the judgment and the following report of the Social Justice and Empowerment Ministry does not insist on Sex Reassignment Surgery (SRS), the government proforma for name and (sex) gender change insists on SRS.

Even the latest Navtej Johar judgment has created many ways for many possibilities; whether it is the question of marriage, social and legal recognition of same sex relationships, or the issues of social security. These judgments have opened doors to full citizenships. However, in a country like India where bureaucracy and ministries are slow and often incompetent, many of these judicial concepts and rightful assertions, are seen in the framework of ‘welfare’. These influence the policies at the state level. When the NALSA judgment came in April 2014, the order of the court was that within six months, all state governments are supposed to set up transgender boards and prepare policies. The Karnataka government has only published the transgender policy and there’s no mention of implementation anywhere. There is also no budget allotted for transgender rights and welfare and a welfare board has not been formed. The recognition of marriage rights, adoption rights, social security in terms of transgenders and their partners or same-gender partners being allowed to own a house together, or insurance, or nominations etc. is still not a reality. It gets contested at every stage and we need judicial assistance in terms of orders for the different sectors to accept and implement.

It is appalling that transgenders as rightful and equal citizens of this country could not even assert their right to vote (a fundamental right), their right to education, right to food and employment for 70-odd years in the world’s largest democracy and we had to fight for years. Now when this right is recognised, the social morality and laxity of the state will delay the implementation of rightful citizenships.

We, at Raahi – A Journey Towards Dignity, with a focus on crisis intervention as our main objective, have been working for marginalised genders and sexualities for their rights in terms of relationships, education, employment and the right to live independently with their choices in life. Though Raahi was registered only this year, some of us at Raahi have been working for almost 15 years on crisis intervention even before the progressive judgments. The only constant that has existed from that day to this day with our community in all our struggles for survival and dignity has been the Constitution of India written by Dr. Baba Saheb Ambedkar and its vision of inclusivity.

Even now, at police stations and within families, women, though they are adults, have to doubly prove that they can live independently. The police, along with the family, will repeat the redundant statement that “ultimately, she is a girl to be married, so she needs to be secured with parents”. When we challenge this legally, we become freaks: not fighters for the dignity of marginalised communities.

In this context, when the community of people approach us for legal or other kinds of support, we have to handle the gaps in these judgments, based on the Constitution of India, through negotiations with the state, police, families, mental health institutions, educational institutions, workspaces, the media, medical institutions and the entirety of society. What are these negotiations, communications and assertions that we as marginalised genders and sexualities have to do as a struggle, protest and continuation of our movement? It is the struggle against the social morality in the name of caste, in the name of gender, in the name of disability, in the name of dignity of labour, in the name of conservation of the environment, in the name of equality, liberty and dignity, in the name of freedom and in the name of love.

(Raahi is an organisation that is formed by a community of activists who have experience in working on issues related to crisis intervention and towards asserting the dignity of marginalised genders and sexualities in communities over the years. The idea is to create a world where people from marginalised genders and sexualities live a life free from violence and discrimination – a life with dignity, self-reliance and self-sustainability.)


Read:

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Sec 377: State, civil society need to step up

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