Authors: Apala Joshi & S. Vishnu Gauri, B.B.A.,LL.B.(Hons.) from Symbiosis Law School, Pune
Transgender people have faced mistreatment, discrimination, abuse, human rights violations, and erasure of gender identity as being referred to as the vulnerable group. The word ‘Transgender’ can be applied to any person or individual who identifies themselves as non-binary identifies different gender to their sex assigned at birth.
The term “Transgender person" means a person whose gender does not match the gender assigned to that person at birth and includes trans-man or trans-woman. Transgender people in India have the right to live their life with dignity and should be able to live without any discrimination.
PERVASIVE DISCRIMINATION AGAINST TRANSGENDER
From the rudimentary level, transgender people have been facing unfair treatment and discrimination in various areas throughout their lives that have put them at risk for economic insecurity, homelessness, and reliance on survival economies. Transgender people are subjected to disproportionate reservation by discriminatory provisions, and often on a negative scale of hate violence and police profiling.
The reforms for managing prisons for transgender pose a difficult and unique challenge in the world of binary identified genders. These binary genders represent the concepts of masculinity and femininity which aid the norms, values, and practices of prison staff and inmates. The prison systems are divided into two different gender houses. By using the gender binary to make housing decisions, a ‘double punishment’ is enacted on transgender people by making their bodies hyper-visible, and thus more susceptible to violence. The critical housing decisions have to be fashioned based on the cases with regular review and a proper risk evaluation.
· The Ambiguity of “Sexual Identity” during police profiling
While interacting or questioning an individual, law enforcement officers generally judge the underlying biases and explicit prejudice. The official profiling conducted by law enforcement relies on bias and stereotypes rather than focusing on the criminal wrongdoing of that person.
The community of transgender is often perceived to transgress gender norms individuals generally who are subject to increased police profiling. Surveys have reported that the disproportionate impact of stop-and-risk policies on transgender people, especially people of different ethnicity and transgender women. The cruel experience i.e., abuse, harassment, and discrimination that is being faced by the transgender people have put them at increased risk for involvement with the criminal justice system- is heightened in confinement settings, like prisons, jails, and immigration detention facilities.
Most of the correctional professionals or officers receive no or only minimal training in how to work with transgender people, despite clear guidance from the government, as transgender people is vulnerable in the confinement. Several issues have appeared due to the facility staffs in prisons and jails that have rendered the transgender people exposed to unsafe placement, assault, and harassment.
In the landmark case of NALSA v. Union of India, the Supreme Court stated that the transgender would be recognized as the third gender in India. The court even said that no third gender person shall be subjected to any medical examination or biological test which would invade their Right to Privacy. The Court explained the term ‘dignity’ and stated that one’s gender identity is within the framework of the fundamental right to dignity under Article 21. It mainly emphasized on the fact that transgenders were subject to a lot of discrimination at all levels of society, which was a violation of their Right to Equality. Also, it included the right to express one’s identity through words, dress, actions or behaviour within the purview of freedom of expression.
Further, Articles 15 and 16 explicitly prohibit discrimination on the grounds of sex. The Court stated that “sex” here does not only refer to biological aspects (like chromosomes/genitalia) but also includes “gender” which is based on one’s self-perception. Despite this judgment, hardly any appreciation or acceptance is shown by the society towards the transgender community.
The Supreme Court in the abovementioned judgment has seemingly violated the international standards for legal gender recognition as per United Nations agencies, World Medical Association and the World Professional Association for Transgender Health where there is need for separate legal and medical processes of gender reassignment. The removal of evaluations of the applicant for legally changing their gender by the panels of experts.
· Negative and Dangerous Police Interactions
With the enforcement agencies which enforce laws and ordinances, they disproportionately impact people from minority such as transgender people. Specifically, transgender people have not only faced negative experience from police but they are also dangerous and menace. The profiling by the police always subject to disrespect to the community of transgender and are misgendered by police frequently, as they lack an accurate identity document and; they are subject to invasive searches and too often physical and sexual violence at the hands of law enforcement.
As per the Model Prison Manual 2016, the provisions for gender sensitivity have been allotted with the title ‘Training of staff for Gender Sensitivity’. The manual does not mention any provision for the right of protection of transgender people. Such disregard towards the transgender community can be seen in prisons and in general by society.
· Unsafe Placement
The placement of the Transgender people in prisons or jails is based on the sex recorded on their birth certificate or external autonomy. Most often, transgender females are placed in the men’s prisons or vice versa where transgender men in female prisons. It has been observed that transgender male is frequently identified themselves as women and live their lives as a female even outside the prison. Despite The Transgender Persons (Protection Of Rights) regulations, which are binding on the Central government as well as the State government and their confinement facilities, there are some prisons and jails which frequently place incarcerated transgender people in isolation or segregation using the rationale of “safety.”
In the past, transgender prison inmates have been ill-treated, abused and neglected in Bengaluru prison. Once the transgenders are brought to prison, they are sent to the chief medical officer for examination. If they have female genitals, they will be classified as women and if they have male genitals, they will be classified as men. This was against the Supreme Court judgement of 2014 which stated that “the gender to which a person belongs is to be determined by the person concerned”. Also, most medical professionals employed in prisons are not properly equipped to look after transgenders.
The State of Assam in its Draft Policy for Transgender had laid down certain schemes for the protection and enforcement of the rights of the transgender community. It recognized the right to life and dignity without violence and suggested to build infrastructure like separate toilets, a helpline for transgender, separate forms and statistics of transgender crimes, criminal and disciplinary action against delinquent police officials in cases of violation of human rights of transgenders.
The State of Kerala even attempted to build a separate block in prisons only for the transgender community. This was an attempt to prevent the negative experience of abuse/harassment that was being faced by the transgender community.
RECOMMENDATION FOR THE BETTER IMPLEMENTATION OF REFORMS
· The jails, prisons, or any other correctional institutions need to be properly administered to avoid any issues or difficulties faced by the transgender community. A convict has a basic fundamental right to live their life with dignity as per the law. The Supreme Court in Sunil Batra v. Delhi Administration has enunciated the framed guidelines for the prisons and prison inmates, which includes every transgender inmate like any other prison inmate who shall have a right to live the life with dignity in the prison.
· The third gender category has to be legally recognized as ruled by the court that they have fundamental rights that are available to the third gender in the same manner as to any males and females. Further on, the negligence of not recognizing the third gender will attract criminal as well as civil statutes that are discriminatory to the third gender. There should be proper classification of policies that need to evolve to recognize transgender people to live contently without sex reassignment surgery or gender-affirming certificates.
· The court has also stated that for the actual procedure of recognition of the gender at the confinement facilities, the psyche of a person should be analysed through a ‘Psychological Test’ as opposed to the gender-biased ‘Biological Test’. Sex Reassignment Surgery should be illegal as changing one’s gender is against the right of an individual.
· The Centre and State Government should take proper measures to cater medical care to the third gender in the hospitals and should have separate toilets and other facilities. However, they should be directed to conduct separate Sero-surveillance measures.
· Various Social Welfare Schemes should be provided to the socially and economically backward classes by the policies of the Centre and State Governments. They have also been asked to extend reservation in educational institutions and for public appointments.
· Everyone should have the right to decide their gender identity and expression including transsexuals, transvestites, hijras and transgenders. Certain rights such as the right to get a ration card, passport, make a will, inherit property and adopt children must be available to all regardless of gender /sexual identities.
· Police Reforms: The police authority should appoint a standing committee consisting of Station House Officers and human rights activists to promptly investigate reports of abuses by the police against kothis and hijras in public areas and police stations, and punish the guilty police officer. They should adopt transparency in their dealings with kothis and hijras; provide information relating to procedures and penalties used in detaining hijras and kothis in public places. The police officials should undergo sensitization workshops by human rights groups/queer groups to break down their social prejudices and train them to deal with hijras and kothis courteously. CONCLUSION The Transgender prisoners face a lot of problems such as discrimination, abuse by other inmates, along with the lack of livelihood by denial of proper medical treatment, refusal to provide proper clothing items, legal under-representation, the bad attitude by the police authorities, etc. It is essential to note that any person has a right to choose their sexuality and can live their lives with self-worth and dignity. Even though states like Assam and Kerala, have taken initiative to make rules and regulations to protect the interests of the transgender community in prisons, but this is not enough as the entire nation has to come together to make a uniform regulation for the protection of the transgender people in the prisons. It is important to empower the transgender community by providing them with proportionate constitutional rights, and thus, improving their socio-economic positions.
References:
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7. This requirement is similar to the one set out in the general directive on the intake of prisoners. See ISR. PRISON SERV., 04.29.00, " [PRISONER'S INTAKE WITHIN PRISON] 4-6 (Jan. 25,2016). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3572821
Vagish Yadav, (2020) REFORMS IN PRISONS AND OTHER INSTITUTIONS FOR TRANSGENDER. The Criminal and Constitutional Law Blog; https://tcclb.wordpress.com/2020/07/14/reforms-in-prisons-and-other-institutions-for-transgender/