For years, transgender people and eunuchs were the most discriminated against. This was due to Section 377 of the Indian Penal Code, which criminalized homosexuality. So when the fight for decriminalization of LGBTQ community began, it was only pertinent that someone from the transgender community took up the fight for equal human rights. That’s when Jayna Kothari came into the picture. Kothari represented Akkai Padmashali and the transgender community in front of Supreme Court’s Constitution bench while fighting against Section 377.
“Gender identity is relevant to the case as eunuchs are often suspected of unnatural offences and are booked under Section 377,” Kothari argued in Supreme Court. She told the bench that Section 377 violates Article 14. Kothari cited the example of her client, who was born male but identified herself as female. Although the petitioner was married, any sexual interaction with her husband was affected by Section 377, reported Bar and Bench.
Kothari’s arguments gave new hope to the transgender community who felt extremely vulnerable because of the difference in their looks and behaviour.
The lawyer spoke to SheThePeople.TV about why she took up the case and said, “I work closely with the trans activists and trangender rights groups. So when we filed the petition in 2016, we realized that in the Section 377 battle, the trans voices were missing. Even though the LGBT’s struggle started 20 years ago, the ‘T’ was always missing since there were no real petitioners or faces of transgenders fighting the fight. It was largely a battle of petitioners who represented gay rights groups or NGOs working on gay rights. So Akkai and her organization and other activists were keen to become the transgender voices in the struggle.”
Kothari explained how Section 377 affected the trans-community as they are the most harassed. “While the entire LGBTQ community faced troubles with the law criminalizing homosexuality, some of the most initial cases of early 1900s are all the cases against transgenders under Section 377. Even in Karnataka, there were about 14 FIRs and many of them were against transgenders.”
“One of the reasons for this is that trans persons are visible and gender non-conforming people who have a different way of dressing, talking etc. And a lot of transgenders are out on the streets begging and doing sex work because they are the most vulnerable groups, so they are also more susceptible to police violence. Therefore, it was important to have representation of the transgenders in the court for the fight against Section 377.”
While the fight is not completely over, Kothari, who is the co-founder of Centre For Law and Policy Research, is of the view that the reading down of the law will definitely help the community. “Even though the Nalsa judgment is there, which talks about equal opportunity in employment etc, because the stigma against the community is still there, change will happen slowly. People still see the transgenders community as criminals or miscreants or indulging in unnatural sex because that is what Section 377 did. But with the reading down of Section 377, at least the law will not carry that stigma and we hope that it will improve lives for them.”
“It is a huge victory because it ensures that there will not be criminalization of homosexuality from now on. It removes doubt of criminal action against them. And what it will do for starters is that there are many other laws which criminalize the trans community like in Andhra Pradesh, there is a Telangana Eunuchs Act which, just like Section 377, is even broader in criminalizing transgenders. So with this judgment, we can set aside that law as well.”
On those who bore the brunt of Section 377, Kothari said that there were so many who committed suicide and it is very unfortunate that we don’t have a sort of reparation system, but the pending cases will benefit from it. Kothari also feels that it wasn’t really about too many cases against the LGBTQ community, but actually that of “Section 377 being used as a threat against people, which was a bigger issue”.
Talking about the future from here on for the LGBTQ community, she said, “It is a huge victory because it ensures that there will not be criminalization of homosexuality from now on. It removes doubt of criminal action against them. And what it will do for starters is that there are many other laws which criminalize the trans community like in Andhra Pradesh there is a Telangana Eunuchs Act, which just like the Section 377, is even broader in criminalizing transgenders. So with this judgment, we can set aside that law as well.”