Hierarchy of rights

Urvashi Butalia | Updated on December 12, 2019

Unfair cut: The rape of a trans person is punishable only by two years in prison   -  THE HINDU/ S MAHINSHA

The Transgender Bill 2019 has let down the very people it intends to protect and help

My friend Mona Ahmed, a hijra, died nearly two years ago. Some months before she passed away, we’d had a long discussion on the coming in of the term ‘third gender’ in the discourse of identity. Mona was happy that official documentation — so necessary for any kind of life in our country — had at least recognised the legitimacy of the trans community.

But she was concerned too. “It’s difficult to find the right choice of words,” she told me, “Third is good, but somehow it implies a hierarchy, like first and second, and I can’t help feeling that we have been relegated to some inferior place. Why can’t we be on the same plane as men and women? Where there are two, why can’t there be more?”

Why indeed? I could not find an adequate answer to Mona’s question. After all, who decreed that there should be only two genders? In Hinduism, the fluidity of identity is well accepted; in Islam received wisdom has it that trans people were employed in some of the most important tasks such as guarding of religious places and the women’s quarters of palaces.

Divine beings and royalty apart, even in daily life, gender fluidity has a place, even if rare. A young friend of mine — who identifies as queer — told me about an elder uncle and his ‘friend’, another male, who would often come to visit. He’d be treated like the uncle’s visiting wife, a member of the family, and once he left, the family would fall back into their old pattern. According to her, this was not an uncommon thing, and many communities took it as ‘normal’.

And now, something that inhabited the realm of community and custom has entered the domain of law. In theory, laws, especially those that come as a result of political mobilisation on the ground, are, or should be, several steps ahead of the reality they are trying to address.

Looked forward to with such expectation, the Transgender Persons (Protection of Rights) Bill 2019 has, however, let down the very people it intends to address. It began well, nearly five years ago, with the Nalsa judgment (Nalsa vs the Union of India). So much of what was needed, and what trans people would want, was in there: Respect, the right to self-determination of one’s gender, the protection of gender identity and expression of one’s gender under Article 19(1)(a) of the Constitution, reservation in educational institutions and employment.

All that has been lost. Job reservation is a thing of the past, provisions in education are non-existent, self-determination and self-expression have been replaced by certification by what government defines as a ‘competent authority’, and medical certification is needed, as if to say that gender identity lies only in the body.

There are other anomalies too. In the days following the December 2012 horrific gang-rape incident in Delhi, one of the key changes women’s groups demanded in the new law on rape was that the survivor of rape and sexual assault be listed not as gender-specific but gender-neutral. In other words, not just women but men and trans people too were victims of rape.

But this wasn’t accepted, and the victim remains female, with the punishment being severe and sometimes even death.

Not so for the trans person. It’s hard to not conclude that for our lawmakers, trans people do not deserve the same kind of consideration; the rape of a trans person is punishable by two years in prison. It is almost as if a certain level of sexual violation is considered ‘normal’ for trans persons, and if there has to be punishment, it should be minimal.

Citizenship is an issue that is currently a subject of widespread discussion. Much of the discussion is, however, focused on citizenship as seen through the prism of religion.

But citizenship — true, equal, and respectful — needs surely to be seen also through the prism of marginalisation. Why should trans people be seen as lesser citizens? Why should they not have all the rights the Constitution guarantees Indian citizens?

This was the question Mona always asked me. Why was it that when she needed a doctor, one of her friends had to alert the person that they were going to meet with a trans person? Surely, like me, Mona also had an unequivocal right to medical attention.

In the years that I knew her as a friend, Mona alerted me to the myriad ways in which she faced daily discrimination, as if her claim to the rights I took for granted was somehow inferior because she was once a man who became a woman. “The same way,” she told me, “as your rights as a woman are seen as inferior to those of men.”


Urvashi Butalia is an editor, publisher and director of Zubaan;


Published on December 12, 2019

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