The resistance to the transgender law has, so far, been united. Sprung without notice or consultation with the community and passed in unseemly haste even after it became clear that those it was supposed to ‘protect’ were fiercely opposed to it, the amendment had brought together disparate factions across caste, religion and geography. On the streets, in maidans, at demonstrations and jan suwais (people’s hearings) there was anger, anxiety and determination to fight it, even after the bill was passed in both houses of Parliament and it became law.

The path ahead was clear. On the day the bill to amend the law was introduced in Parliament on March 13, I spoke to an activist lawyer. Would the bill be challenged in court? Without a doubt, they replied, but only if it was passed. There had to be cause to file a petition, otherwise it risked being thrown out.

The community has the advantage of the knowledge of a previous battle. It took 17 years from the time Naz Foundation filed a petition in 2001 in the Delhi high court to decriminalise section 377—sex against the order of nature, a British colonial remnant—to the final reversal granted by a five-judge Supreme Court bench in 2018. In those 17 years, there was struggle and frustration, set-backs and triumphs, but also lessons in staying the course.

“The courts and of course the government are sensitive to the divisions that exist within the community which is why it is important to present a united front,” said senior advocate Saurabh Kirpal who was also one of the lawyers in the 377 fight in the Supreme Court. “This may be a long-haul fight that requires stamina.”

On Friday, two transgender women struck the first legal challenge. Laxmi Narayan Tripathi of the Kinnar Akhara and Zainab Javid Patel, a member of the National Council for Transgender Persons (western region) challenged the constitutional validity of the Transgender Persons (Protection of Rights) Amendment Act. The act, which received president Droupadi Murmu’s assent on March 30 and for which rules are still to be framed, causes “irreparable constitutional injury” to the fundamental rights of transgender people guaranteed under articles 14, 15, 19 and 21 of the constitution.

The amendment, the petition states, dismantles the principle of self-identification recognised as a fundamental right by the Supreme Court’s 2014 NALSA (National Legal Services Authority) judgment. It challenges the restriction of transgender identity to those with a socio-cultural history like hijra and kinnar (Tripathi is kinnar) while excluding the broader right to self-identify.

It questions the requirement of medical certification, which NALSA rejected as contrary to the rights to privacy and dignity.

And it raises concerns about the framing of penal provisions that risk stigmatising transgender identity by associating it with criminal conduct.

It’s not just the transgender community that is resisting the amendment. On Monday, the Rajasthan high court while delivering judgment on an unrelated petition by a trans woman noted in the epilogue: “What was recognised by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement.” Clearly, the remarks touched a raw nerve somewhere. On Thursday, the high court ordered three paragraphs, including the remarks, to be deleted saying that they had been included “by mistake”.

At the heart of the concern is a 180 degree turn to the fundamental question: Who is transgender? The 2019 law was far from perfect but in keeping with the Supreme Court’s NALSA judgment and constitutional guarantees of dignity, privacy and autonomy, it granted individuals the right to self-express. It understood that gender was not a question of genitals but a social construct. Biologically, you could be born a certain way, or certified by a doctor to fall into one of two buckets, but gender is more complex than that. Who do you believe you are—man, woman, neither, or both?

When it was passed, the law was well ahead of its time. In so many parts of the world, a narrow, right-wing approach insisted that gender was biology. Coming into his second term, US President Donald Trump’s first declared act of war was against diversity, equity and inclusion. Not just transgender people, but LGBTQ communities, women and anyone with a humanitarian bent of mind were affected.

Prime Minister Narendra Modi had already taken credit for giving transgender people an identity. Then something happened and, in the absence of transparency, there are many theories—a transphobic bureaucrat, an international and well-funded lobby against transgender rights, the State’s creeping power into individual citizen rights—but no clear answer as to why this turnaround, why the urgency, why the secrecy, why the refusal to even send the bill to a standing committee for debate instead of ramming it through majority vote?

Challenge of collective action

March 13 when the bill was introduced sent alarm bells ringing within the larger transgender and LGBTQ+ community. Lawyers were consulted and opinions sought on worst case scenarios if it ended up being passed.

Now that it has, there is a need for strategy in taking the fight to the courts. “We need a collective approach going forward with the legal challenge,” gay rights activist Sharif Rangnekar said. Rangnekar spoke about the experience in the legal battle in striking down 377. At each step, he said, “You prepare for the worst, but also prepare for a fight.”

At a consultation on Friday, the fight unfortunately was within the community with an ugly exchange between Grace Banu, a Dalit transgender engineer and Laxmi Narayan Tripathi. According to a report by The Mooknayak, retweeted by Banu, the confrontation erupted after Banu began her address with “Jai Bhim”. “We are all grandsons and granddaughters of Babasaheb Ambedkar and Ramabai,” she said, triggering an attack by Tripathi who said she was Brahmin and also oppressed.

The exchange has ruptured the façade of unity. “There are fascist, casteist people who want to erase all other efforts,” Banu said to me on Sunday morning. “Everyone has the right to file a petition,” she continued. “But the right thing would have been to go to the high court first. Now, if the Supreme Court dismisses it, what options do we have?”

I reached out to Laxmi Narayan Tripathi for her comments, but she had not responded at the time of writing this.

[This is my third report on the transgender law amendment, without a doubt one of the biggest setbacks to gender rights in recent times. Previous stories include Identity without Scrutiny and Transgressing Rights of Self-Identification.]

© hindustantimes