It’s no surprise the law is inherently cisnormative and heteronormative, which leads to queer people existing in stealth in un-accommodative frameworks. We reached out to Kanmani Ray L.R. a transgender woman pursuing LLB from Faculty of Law, University of Delhi. She has been a resource person, speaker for some sensitisation efforts. She aspires to be an advocate but even more a dancer, lover, mother and a teacher someday. Kanmani, talks about her own experiences as a transgender woman in law school and presents a larger understanding of how queerness is read by the law.
“You are not fit to be an advocate, you should do what is for you – sex work and begging.”
About her experiences at Law School
Before I took admission, I was open to certain queer and transgender friends outside campus, but that’s it. Later, I decided to open up about who I am, after a month of classes starting, during the student union elections. The elections are dominated by cishet men. On the final day of the campaign, I changed into a saree at a friend’s place and walked from her home, took an auto-rickshaw and went to the campus. It was the hardest to walk in such a hostile space, where a lot of police personnel (again mostly men) were there. Anyone who knows transgender communities also knows how the police behave with us. But I walked with my head held high. However, the irony is when I entered, girls from a certain student political group, made fun of me.”
Accessing washrooms has been the hardest. Often, I go to campus without eating food or drinking water and try to stay that way the entire day. Which washroom am I allowed to use? Male or female? I have been thrown out of so many washrooms, whether male or female, in the Delhi Metro system or outside (not per se on the campus) that it makes me tired, scared and anxious to even use any washrooms on campus. A few times people have crowded around me when I was travelling in a bus, or using a washroom or travelling in a train to the campus, as an angry mob waiting to see drama.
Student society is binary and inaccessible
On-campus I have seen students from all batches, whether it’s boys or girls stare at me continuously, call me slurs all the time. I have been stalked, harassed, some even get up and walk away if I go sit. “Aye haye yeh meetha log yahaan bhi aagye, yeh kya dekh liya/nachwa lein inse?”or “Abey banda bandi ban gyi, yahi tum feminist log karte ho, lagta hai” are some of the comments I have faced on the campus. Right from freshers (Mr Fresher or Ms Fresher?) to just about every competition, there is a binary. I can’t easily participate in any competition outside the campus because I don’t have my parents’ support and all facilities are binary and unaffordable.
I usually go change in a washroom when classes haven’t started into a saree (to this day, I am not out in my neighbourhood, so can’t come in a saree from home). So, I started wearing a payal. In this way, I have asserted my presence, again and again, carved out space for myself. This cannot be divorced from the fact that I am an English speaking, dominant caste transgender woman and hence privileged in multiple aspects, like I don’t need a hostel which again are binary-male/female. However, when I wrote a long letter highlighting issues, the then Dean, Ved Kumari, was supportive, called me the next day and did invite me to a panel to sensitise the faculty about transgender identity and law. Some friends, post the 377 judgment, organised a Pride event. The event had a panel that spoke very many truths to the campus. After that, we had the first-ever campus parade.
How do institutions play out in reinstating dysmorphia or phobia?
Transgender people are made the criminal subject of laws, not the ones who are ‘protected’. Cis men from dominant caste-class may feel protected by law, not us. Who has cared for the many murders of transgender persons? Who cared for our disenfranchisement? Who cared if we got jobs, healthcare or not? Did NHRC ever bother about us? Post the 377 judgment, everyone congratulated me for 377 as if that was the only thing that mattered! Many in law school know of 377, not NALSA judgment.
You go to the High Court or even the Supreme Court, and to this day some of them will laugh at us or “stare at us or make insensitive comments”. To all those who say I can’t be an advocate, I read a little more of law and make it accessible to others. That’s my response and that’s my relationship with the law. When institutions have everything in the binary, and no affirmative action and policies, like scholarships, redressal committees and also no gender-neutral hostels, washrooms, and not even one word in their sensitisation or orientations, then yes, they play an active part in reinstating dysphoria and transphobia.
Where do you think our legal frameworks currently stand when it comes to protecting queer people and ensuring no discrimination?
We have the NALSA, 377 judgments which have given some impetus, but discrimination is still rampant. Under the Constitution, Articles 14-18 are our greatest weapons against discrimination. But queer, especially transgender persons, face discrimination in housing, education, transport, employment, health, social security, food, access to civil rights, partnership, etc. There have been some progressive judgments from High Courts, but that’s it. The fight is for self-determination of our gender, intimacies and lives. Simply talking of discrimination is misleading, for a lot of access structurally is governed by prejudices based on caste in this country along prejudices based on race, community, class, gender, sexual orientation and disability. Hence, unless reservation, affirmative action, as well as other anti-discrimination provisions, are fully implemented in word and spirit, our current legal frameworks, are highly inadequate.
The law is inherently cishet-normative. Look no further than a simple small thing – which pronouns are used in all bare acts. We should start reading Babasaheb Dr B.R. Ambedkar’s introduction of the Hindu Code Bill, his other work and speeches, but also what Savitribai Phule, Periyar did and stood for. Maybe then the law can be queered.
Which provision in IPC can be invoked in the case of transgender and non-binary persons facing sexual violence?
Not one provision states those words or covers transgender identities. Ask any advocate or law student, they will tell you to look at Sections 8 and 10 in IPC which says ‘male’ and ‘female’. Even the Immoral Traffic (Prevention) Act, is a horrible piece of legislation which is used by the police to throw sex workers, especially transgender and non-binary persons in jail and foist cases on us.
Our adoption laws make sure transgender persons are kept out. Our reproductive rights laws (MTP Act) which to this day covers only women, not ‘persons’. All our labour laws (read Factories Act), all presumptions raised in Criminal Procedural Code and entire family law are a cishet binary mess. The Births and Deaths Registration Act is still largely exclusionary. There are also anti-begging laws across various states. The Habitual Offenders Act, an import of the erstwhile colonial legacy Criminal Tribes Act, still exists. The lack of policies, welfare boards and reforms in laws in various states are also gaps in the law. The Legal Services Authorities Act, 1987 to this day doesn’t mention transgender persons as entitled for legal aid.
On the representation of transgender and non-binary people in judicial bodies
I look up to and am very grateful to Joyita Mondal, Swati Bidhan Baruah, Megh, Satyashri Sharmila who fought and made sure spaces open up, also inspired many others in the community to join the legal field. As well as many others, whether open or not, whether practising or not, have survived and thrived. Higher Judicial bodies are yet to have openly transgender and non-binary persons as judges or other officers of the court or registry. Our representation, therefore, can be said is non-existent or negligible at best. How many transgender persons are even your classmates? How many trans persons are even your neighbours? How many are your teachers, students? How many are in your universities, govt. offices? Then how is it that we suddenly can see trans persons reaching in judicial bodies and there being transgender lawyers?
Law is a very family dominated field, with mostly cishet men from dominant caste-class backgrounds, often “second generation” controlling the profession. The collegium system, with all due respect, is much closed. If I am very optimistic, maybe in the next 20-25 years, we might see a few openly queer/transgender/non-binary/intersex judges. Without representation, there is very little faith in the system and that too keeps eroding. Institutions have a responsibility to build trust. It’s not automatic. When it came to cis savarna men, were they asked about representation? Their place is just assumed and a given, isn’t it? It’s only when it comes to underrepresented communities, ‘merit’ will be mentioned. What is this ridiculous assumption that those who don’t hail from dominant caste, class, gender backgrounds, especially transgender and queer persons don’t have merit? Or is ‘merit’ only the hold of cis men from certain caste, class backgrounds?
The Transgender Persons’ (Protection of Rights) Act, 2019 should be renamed Transgender Persons’ (Continuation of Wrongs) Act, 2019.
This Act is a Murder of Gender Justice, as told by transgender rights activist Grace Banu. It is also unconstitutional in so many aspects. This Act takes away our right to self-determination, self-identification affirmed and laid down by the NALSA judgment of the Supreme Court. It mandates medical intervention for someone to be recognised as a woman or a man – surgery! In many countries, legal change moves from regressive to progressive. Here it is the opposite. You are taking away whatever little legal rights that were won by marginalised communities to build upon so that you can gatekeep, control, reinforce the binary and play your politics over our bodies!
This Act can be reformed only if there are broad, open, democratic, representative, consultations conducted state wise with adequate time. There are already plenty of recommendations from communities and groups which haven’t made it to the Act. It’s like 64 years we didn’t have anything. Now for six long years, you are constantly miring in the name of ‘protection of rights’, but doing the charade and pretence of listening to us. It feels like all this is being done to wear and tire us out, exhaust us. “We know what’s best for you and how to govern, control you, better than you and we will do it, we don’t care” is the attitude underlying this Act’s history.
I am almost a year away from passing out of my course. After that, I will join as an advocate. I was seen as a man at birth. I had to pretend as a man for 18 years, ever since I have known myself to this cruel, unfair world. I don’t want to live with a mask. I don’t want a day when I am not myself. I don’t want to die being remembered as a man. But now thanks to this Act, I have today lost the right to be recognised as a woman, as myself. So I also won’t be able to enroll in Delhi Bar Council as a woman advocate. Is this what I lived for to see? Is this what I struggled so hard to get?
Where do you want to see our legal frameworks heading in the next five years?
I honestly don’t know. Maybe towards self-determination. Towards as many rights to transgender people as any other person as guaranteed by the Constitution. Towards laws that protect our rights but also centre in their imagination not just transgender women, but also intersex persons, transgender men, transgender non-binary persons. Frameworks that see us for who we are, not what the world thinks our bodies should be. That lets a child grow up and decide who one is or wants to be. A framework where a future gender non-conforming child would get to access and feel safe going to school.
On her Future Initiatives
[Kanmani has also taken up an initiative to help out any transgender, intersex, gender non-conforming, gender fluid, Hijra, Kothi, Kinnar, Aravani persons (including anyone from sexual minority identities/communities) to help them navigate the legal profession.]
As a transgender person and a student of law, I know as to how much I struggle with my education, primarily due to dysphoria, depression and anxiety since I am not able to live as myself. But I still have some financial support from parents. Many in the community often don’t have even that or resources or simply guidance and peer support. Even language is a huge barrier. In the legal field, we are too few. It feels much better to know that you are not alone in the world. Also considering it’s a pandemic induced lockdown, it’s already hard on transgender communities, who have lost jobs, sources of income, food and finding difficulties in accessing health facilities. I am not doing any special work, much of this has been and is being done by many transgender persons who don’t have half the social capital or get even as much as recognition but still keep doing independently.
Anureet Watta is an Intern with SheThePeople TV