Gender fluidity will slowly dissolve the rigid opposition to it— An interview with transgender rights activist Vyjayanti Mogli

Vyjayanti Mogli has been part of the transgender rights movement in Telangana since 2012. She played an instrumental role in challenging the constitutionality of the Telangana Eunuchs Act, 1919, following which the Act was struck down.

She is also a petitioner in the ongoing marriage equality case before the Supreme Court. While the court's verdict is much awaited, Vyjayanti Mogli elucidates that protections given by courts through judgments are rarely practised in spirit.

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Q: During the hearings on marriage equality petitions in the Supreme Court recently, the respondents asserted that the petitions reflect an "urban elitist" view. It was not the first time LGBTQIA+ issues were referred to in this manner, and, sadly, it may not have been the last time. According to you, what sustains such narratives? Considering that you work at the grassroots level as well as having the amplitude to reach a much wider audience at the policy and advocacy level, how can these narratives be dealt with?

A: While there have been persistent attempts to derail petitions on LGBTQIA+ issues, the approach and strategies of those opposed to gender and sexual justice have changed over the years.

For instance, during the hearing of Naz Foundation versus the Government of NCT of Delhi & Others (2009), in opposition to the petitions, the then Solicitor General of India termed the issues a "western concept" or "western import".

Since the private sector, which brings in considerable foreign investment in India, is supportive of the rights of the LGBTQIA+ community, the argument that non-heteronormative relationships are a "western import" is no longer openly peddled.

Similarly, the judgment in Suresh Kumar Koushal & Another versus Naz Foundation & Others (2013) termed the LGBTQIA+ community a "minuscule minority". This, too, will not be applicable today, since we have discredited the "minuscule minority" jurisprudence.

During the hearing of the marriage equality petitions, the respondents have strategised and invented a new argument to the effect that calls for recognition and respect for LGBTQI+ relationships are an "urban elitist" view.

This argument is adopted from the discourse of the right-wing or from narratives among the general public who give preference to religious values over constitutional values. In any case, teaching constitutional values is neglected in school education in India.

By adopting the "urban elitist" argument, the respondents fail to acknowledge the diverse backgrounds of the petitioners. The petitioners in the marriage equality case belong to tier 2, tier 3 and tier 4 cities, towns and villages, which are not as urbanised as tier 1 cities. Several of the petitioners have migrated to big cities from smaller towns and villages.

While we have done grassroots work with our own communities, we have been fearful and shy to raise these issues with the general public, particularly with those in tier 2, 3 and 4 towns and to engage with their cultural ethos.

During the hearing of the marriage equality petitions, one of the arguments of the Solicitor General of India, Tushar Mehta, was that the judgments and laws relied upon by the petitioners belong to cultures different from that of the Indian subcontinent.

However, in our mountainous neighbour, Nepal, the Supreme Court has recently recognised marriage equality and directed the registration of marriages of gender and sexual minorities. Hence, the concept of marriage equality is not alien to the Indian subcontinent at all.

Q: What are your views on horizontal reservations for queer and transgender persons in the form of affirmative action by the state? Can the intersectionality between issues of denial of transgender rights reconcile with other forms of discrimination?

A: Horizontal reservations are long overdue in our country. The Supreme Court judgments in Indira Sawhney versus Union of India (1992) and Saurav Yadav versus The State of Uttar Pradesh (2020) lay down and elucidate horizontal reservations for women.

The governments of Karnataka, Telangana and Andhra Pradesh have introduced horizontal reservation for women, circumventing the 50 percent threshold of reservation.

Since reservations are not multidimensional, the reservations are based vertically on caste and disability and horizontally on gender.

Following this, a person with a disability who is from a manual scavenging caste, will have to choose between reservation of caste and gender or caste and disability.

Although they suffer from both disability and caste-based identity and exclusion, the reservations are only bi-dimensional.

The Union government has still not introduced horizontal reservations for women in Central services such as the Union Public Service Commission. Since the Union government has previously opposed horizontal reservation for women, obtaining such reservations for transgender persons will be a long battle.

Thus, the focus should be on state governments to introduce horizontal reservations.

The first judgment that spoke of reservations for transgender persons is the National Legal Services Authority versus Union of India & Others (2014) (NALSA). It directs the Union and state governments to treat transgender persons as socially and educationally backward classes and to extend reservations to them.

It also recognises self-identification of gender and clearly separates the third gender from male and female genders.

While the NALSA judgment provides a minimum threshold of reservations for transgender persons, it does not preclude state governments from going further to provide horizontal reservations.

However, we must foreground the duplicity and confusion of NALSA. Reservation rosters are public documents, falling under law and policy. If reservation rosters are made to include the third gender separation at every vertical, viz., Economically Weaker Sections, Scheduled Castes, Socially and Economically Backward Classes (SEBC) and Scheduled Tribes, then horizontal reservation will automatically apply.

Contempt petitions filed this year in respect of the NALSA judgement are pushing state governments to drop transgender persons into the large pool of Other Backward Classes (OBC) aka Socially and Educationally Backward Classes (SEBCs) quota, which is a self-defeating exercise.

In several recent judgments, including Saratha versus The Member Secretary (2022), Dr Koyyala Ruth John Paul versus Union of India (2023) and Devath Sreenu @ Devath Tanu Sri & Others versus State of Telangana & Others (2023), various high courts have not only granted relief to transgender petitioners by quashing their disqualification from a public office or ensuring a seat in competitive exams under the state and central quota, but it has also upheld horizontal reservations for transgender persons.

Q: The Transgender Persons (Protection of Rights) Act, 2019 seeks to prohibit discrimination against transgender persons. How has the implementation of the Act fared so far?

A: The Act has initiated a conversation on preventing discrimination against transgender persons. It mandates the appointment of a complaint officer in every establishment to seek complaints by transgender persons (under Section 11 of the Act). However, it is hard to ascertain how many organisations in the private sector are yet to appoint complaint officers.

Also read: Celebrating a decade of NALSA means nothing in absence of political will for inclusion and representation of transgender community— Dr Akkai Padmashali

In respect of the public sector, the right to information should be invoked against the Union and state governments to enquire about the complaint officers in each of their establishments. While the Act provides for transgender certificates and identity cards (under Section 6 of the Act), few people have applied for and received them.

At the district level, government functionaries are demanding surgeon certificates to issue transgender certificates and identity cards. Such surgeon certificates are unnecessary since they only ask for a doctor's letter, where the doctor could be from any speciality, including a psychiatrist, endocrinologist or urologist. Hence, issuance of transgender certificates is languishing.

Q: In Navtej Singh Johar & Others versus Union of India (2018), the Supreme Court recognised that transgender persons face abuse and sexual assault at the hands of law enforcement officers. According to you, since the judgement, has the approach of the officers towards the transgender community changed?

A: Under the Transgender Persons (Protection of Rights) Rules, 2020, 'Transgender Protection Cells' (under Rule 11) have to be set up in states. However, they are set up only in state capitals under the director general of police or the additional director general of police. Police stations in districts and villages have largely failed to set up such protection cells.

Although the optics adopted by law enforcement officers are trans-friendly, protection measures are implemented more in letter than in spirit.

For instance, while the police organise the LBGTQIA+ inclusion programmes, transgender persons are rarely invited to the programmes.

In many cases, police officers have asked adult non-cisheternormative persons who have eloped to return to their families. We had to move to the Telangana High Court to ensure their protection from police and families.

Q: How can the right to information be leveraged to correct perceptions about the transgender community and ensure government accountability in relation to the rights of the transgender community?

A: The Right to Information Act, 2005 (RTI Act) is an easy and affordable tool to access information under the control of public authorities. Even if the representations are addressed to the incorrect departments, it is the responsibility of the recipient department to redirect them to the department concerned, and the representations cannot be rejected on the grounds that they were addressed to the wrong department.

While evasive or elusive replies by public authorities may not resolve the issue at hand, they will ensure access to documentation. Unless listed as exclusions under the RTI Act, in case of rejection of an application to provide information, the authorities are bound to provide a reason for such rejection.

The RTI Act makes a provision for challenging the reply of the authorities with the appellate authorities.

The RTI Act is, thus, a low-hanging fruit, which brings information to our doorstep, and it should be leveraged by all citizens. Whenever possible, e-RTIs should be filed to prevent hassles.

We were able to successfully de-operationalise the Telangana Eunuchs Act, 1919, which was a pre-constitutional law that gave arbitrary powers to the police to arrest eunuchs without a warrant. According to the Act, if a "eunuch" was found in the company of a child, they could be arrested without a warrant. This presupposed that "eunuchs" or transgender persons, who have transitioned from male to female, are paedophiles.

This perception directly affected many transgender persons who are involved in teaching young students. We should be proud that Narthaki Nataraj, the first transgender recipient of the Padma Shri, is a renowned Bharatanatyam dancer, who teaches classical dance to several children.

From November 2017 onwards, we filed RTIs to get data on all the first information reports filed under the Telangana Eunuchs Act in the previous ten years (from April 2008 to March 2017), and the number of chargesheets filed, those remanded to custody, those who managed to get bail and those who are still languishing in jails.

The RTIs were filed with the public information officer (PIO) of the director general of police of Telangana. We also filed RTIs with the PIOs of the state Crime Records Bureau (SCRB) and the National Crime Records Bureau (NCRB).

Apart from this, we filed around 400 RTIs with each of the police stations in Telangana, which showed much larger numbers of complaints filed against transgender persons than other PIOs.

Since we received different numbers from each of the PIOs, we were able to show the disparity in data to the Telangana High Court.

In the first hearing itself, the Chief Justice of the high court directed the state government to respond to the disparity, particularly by enquiring on which data should be relied upon. Subsequently, in the second hearing, the high court stayed the Telangana Eunuchs Act and de-operationalised it.

Another public interest litigation (PIL) was filed in the Telangana High Court based on information received through Section 7 of the RTI Act, which mandates PIOs to provide information concerning the life and liberty of a person within 48 hours of the receipt of the request.

The PIL highlighted the serious impact on the transgender community in Telangana specifically with regard to access to food, basic necessities and other requirements during the Covid health crisis and the lockdown announced by the Union government.

The PIL, in turn, led to the high court directing the state government to designate separate wards for transgender persons in the hospitals, dry rations till November 2020 under Pradhan Mantri Garib Kalyan Yojana (PMGKY) and medicines for people living with HIV/AIDS.

Q: One of the major contentions of the petitioners in the marriage equality hearings was that the LGBTQIA+ community cannot keep waiting indefinitely for getting the same rights as citizens of other persuasions. Are you satisfied with the pace at which the rights discourse in India is changing vis-à-vis the LGBTQIA+ community? What about social discourse?

A: It is important for the LBGTQIA+ community to find allies across the political spectrum and not limit itself to the left-wing.

During the hearing of marriage equality petitions, when advocate J. Sai Deepak, appearing for Bharatiya Stree Shakti, argued that the petitioners have "a cause but not a case". He admitted to a cause for the petitions. 

After the reading down of IPC 377, Tejaswi Surya tweeted, "Some are expressing 'concern' that #Section377Scrapped would be followed by demands for legalising same sex marriage. Why not? Aren't ideas of marriage, inheritance and adoption mere legal fictions? Why can't these fictions have space for same sex couples? Natural consequence!"

Building on such public comments from the right wing youth leaders and senior leaders, we must engage in advocacy with the right-wing also, as much as the engagement with the left and centre, in order to dilute the opposition to the non-heternormative community's rights.

While I am one of the petitioners in the marriage equality case, in my view, consistent advocacy and incremental progress seem to be the way ahead. This is just my view and I could be wrong too. Radical changes may perhaps lead to a radical pushback. 

Religious amity, tolerance and respect for faith diversity and religiosity cannot be sacrificed by LGBTQIA+ communities in the courts. 

Some of us may be rationalists, atheists and agnostics but we cannot be anti-faith in a large and vast democracy as India. There are many right-leaning, left-of-centre and welfare-oriented persons in the LGBTQIA+ communities who are deeply entrenched in faith.

Since the judgement of the Supreme Court in the Navtej Singh Johar case, which decriminalised consensual homosexuality, many have started to accept homosexuality.

Hence, even if the decision of the Supreme Court in the marriage equality case issues a clear mandate to the Union government for civil unions and domestic partnerships instead of marriage equality, that too is a step ahead. 

With continued advocacy, years down the line, the deeply entrenched stigma against us may well deplete. 

With gender being fluid, transgender persons subvert gender in many ways. The hope is that transgender persons will be torchbearers of marriage equality. 

In not more than five years from now, attempts must be made to bring the issue to the Parliament— district-wide, state-wide and country-wide consultations need to be held with stakeholders. `

In my limited view, the way forward is also to ensure that a safety valve is put in place by the Supreme Court through comprehensive guidelines to protect the rights of eloped and runaway adult couples belonging to the LGBTQIA+ communities.