The year 2014 is a landmark in the history of the Indian transgender community. Nearly seven decades after Independence, the Supreme Court finally recognised the 2 million strong community as the ‘third gender’. The decision came in April, in a case filed by the National Legal Services Authority (NALSA), a legal body that provides aid to the weaker sections of society.
Although the judgement bestowed upon every citizen the right to choose their gender and directed the Centre and states to take necessary steps to ensure transgenders personal autonomy and protection against discrimination, sexual violence against the third gender remains a blind spot in the statute books of the country.
Another fault line is the nature of response of law enforcement agencies and medical professionals in cases of sexual violence against the community. In some instances, there is obvious criminal complicity of the authorities in inflicting such violence, and in other cases, more appallingly, they are further harassed.
India’s transgender community has remained largely marginalised and is forced to eke out a living through sex work and begging. At present, although there are no national-level studies to validate sexual violence against the transgender community, those working in the field say it is rampant and grossly under-reported.
A study conducted by an independent set of researchers across Karnataka in 2012 reveals that there was 18 percent prevalence of sexual violence against the transgender — Men Having Sex with Men (MSM) community. The most common perpetrators of this violence were clients (61 percent), police (18 percent), a regular partner (13 percent), a pimp (10 percent) and ‘others’ (21 percent). Another study conducted by HIV Alliance India reveals that in 10 percent cases of reported violence, customers soliciting their services were the perpetrators.
In October, Kirti (name changed), a Goa-based sex-worker, was raped by three truckers. One of the three men offered her Rs. 500 for sex. Kirti accompanied him when he assured her that he’d take her to a safe spot.
However, once they reached their destination, two other men showed up and the three men took turns to rape her. Late in the night, she was left bleeding profusely on a deserted street. She called a member of Darpan, an NGO that works with the transgender and MSM sex workers, for help. Kirti did not want to approach the police or seek medical help.
“Kirti’s reluctance to seek help from law enforcement agencies and health care professionals is mirrored by many others who face sexual violence,” says Azad Shaikh, programme manager, Darpan. In the 12 years that he has worked with the community, he has not seen one case go to the police.
“They fear further harassment by the police on the basis of their profession and gender identity,” he says.
The Immoral Trafficking (Prevention) Act, 1956 is known to be used more to harass vulnerable elements than to prevent trafficking. The case of transgender sex workers is no different.
“Often, police patrols cruising sites in plain clothes, at times, even posing as customers. After the act, police officials often threaten the sex worker and extort money. Sometimes they even force them to have sex,” says Ashish Rathod, who works as a programme manager with Mumbai-based Ashiyana. According to the report by HIV Alliance India, in 17 percent reported cases of violence the perpetrators are police.
The NALSA judgement takes into account the right to ‘treatment with humanity’ while in detention. It directs states to make provisions to ensure that placement in detention avoids further marginalisation of persons on the basis of their sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse.
However, in June this year, Nagma, a transgender, who was on a pilgrimage to Ajmer was taken into custody after an altercation broke out between the police and her assistants after the police made offensive remarks at her. A case under IPC Sections 143, 332, 353, amounting to assaulting a public servant, was slapped against them.
That night, Nagma was gangraped in custody by three policemen. Although a case of rape by a public servant was registered, a case of rape in police custody was not registered.
The case was registered only when activists intervened. The police had initially refused to file any such complaint.
“Filing an FIR in cases that involve transgenders and the MSM community without political pressure, pressure from the media or lawyers is the biggest challenge. Often, they say ‘it is out of our jurisdiction’, try to suppress matters by terming it a non-cognisable offence or somehow try to convince the victim(s) that it is their fault,” says Sonal Ginai, advocacy manager of Mumbai-based Humsafar Trust, an NGO that has been working on HIV/AIDS advocacy within the transgender and MSM community for over two decades now.
“Forget approaching the police on their own, even when we, as representatives of an organisation that works with the community, approach the police, it is difficult to get an FIR registered,” she adds.
Under the recently-amended rape law, there is no specific provision that protects the transgender community or even MSM against sexual violence.
“With the NALSA judgement, that gives every individual the right to identify their gender, Section 376 of the ipc can be used in cases where a transwoman is at the receiving end of sexual violence but what about transmen, who have spent all their lives trying to ensure that they are not identified as women? Do they then, identify themselves as women to ensure that a case is registered?” asks Bangalore-based lawyer Gowthaman Ranganathan.
A report by the 172nd Law Commission, which reviewed rape laws in 2000, had recommended that rape laws be made gender-neutral to ensure protection against sexual violence to not just women but also transgenders and men. The Justice Verma Committee, which was formed in the aftermath of the Nirbhaya gangrape, also echoed the commission’s views.
However, the current laws only extend protection to women.
In the existing scenario, activists and lawyers say that there is a need to either include a section within the existing rape laws to cover the transgender and MSM community or introduce a separate section altogether.
Section 377 — which imposes a blanket ban on and criminalises all penile or non-vaginal sexual intercourse under “unnatural offences” — also stands in the way of the community reporting sexual violence, as it criminalises their sexuality. For this reason, many are afraid of approaching the police and doctors.
In October 2013, Sirat, a transgender from Koraput in Odisha was walking back home from a Durga Puja event where she was performing. En route, five men who were drinking in a parked car stopped her and asked her to have sex with them.
When Sirat refused and started walking away, they followed her and dragged her into the car. In the car, they took turns to rape her and later dumped her in a ditch. She suffered an asthma attack and bled profusely from the violent assault. Then, a friend came to her aid and took her home for the night.
The next day, at the hospital, she was unable to tell the doctor what had happened. The doctor asked her to strip down. When she refused and instead lowered her pants, the doctor pulled at her clothes and asked, “Why are you so shy? Are you a girl? No? Then stand like a man.” The doctor then instructed her to spread her legs and went on to insert three fingers in her anus for ‘medical’ examination. She was later admitted in the hospital for three days.
Once discharged, she approached the police. Her nightmare continued unabated. The policemen asked her. “Really? Did men rape you? Did you really bleed?” They were reluctant to file her complaint. Sirat says, “I realised that if I pressurised them to register my complaint, they would further humiliate me by going to my family.” Her family is not aware of her sexuality.
“The police are unable to understand issues relating to sexuality while handling these cases. We as an NGO need to explain how to them. To ensure that preliminary investigations are fool proof, the police as well as doctors need to be sensitised,” says Nayreen Daruwala, director, policy and programmes of Mumbai-based NGO Sneha, that works on gender and health rights.
In March, the Ministry of Health and Family Welfare issued a new set of national guidelines for dealing with criminal sexual assault cases.
The Department of Health Research, the Indian Council of Medical Research, and medical, forensic and legal experts formulated these guidelines, that were widely discussed as “guidelines that ban the two-finger test”.
However, the guidelines are detailed and not limited to banning the two-finger test. They lay down specific pointers for doctors to conduct medico-legal examinations in cases of sexual violence against women, children, the transgender community, people with alternate sexualities and sex workers.
Setting out protocols for health professionals while handling cases of sexual violence against the transgender community, the guidelines state: “Health professionals are often ignorant of the variations in biology and gender identity and also tend to ‘pathologise’ them.”
The guidelines include — recording the appropriate gender of the individual, recording genital-anatomical variations of transgender or intersex people, maintaining confidentiality and so on.
The guidelines also cover attitudes of doctors. For example, the inadvertent discovery during examination or historytaking that a person is transgender or intersex must not be treated with ridicule, hostility, surprise, shock or dismay. Such reactions convey that the person is being judged and that is likely to make them uncomfortable in the healthcare setting. They also acknowledge that although the law doesn’t recognise gender identity-based hate crimes, it is important for the health professionals to record the survivor’s account of the assault as part of the procedural history-taking, making note of the survivor’s perception of the reasons for the assault, if it is based on his/her gender identity.
Since March, four states — Karnataka, Tamil Nadu, Meghalaya and Orissa — have issued relevant directives to health professionals. “The guidelines issued by the Health Ministry is a great step forward but this must be backed up with adequate training and sensitisation of healthcare professionals,” says Padma Deosthali of Centre for Enquiry into Health and Allied Themes.