Reflections on Access to Justice for Transgender People in India

By Shivani Dewalla 

Our arrival unto the world is marked by “their” presence. Marriages would be incomplete without “their” performances, “their” blessings. The halt at the traffic light is one of the most likely places to spot “them”. But why is it that their presence is only restricted to such occasions? Why are they not present in our classrooms? In our offices? Why are they not our neighbours? Or our friends? “Their” existence and conditions are synonymous to the English idiom ‘elephant in the room’; they exist but they are seldom part of our daily conversations, daily life. In fact even if this article ends without naming “them”, it will not be a task for the readers to identify them- such is their pervasiveness in the Indian society.

Hijra, kinnar, chhakka, khwaja, trans, sera are some of the common words that are used to address this gender nonconforming section of our society. Most of the times other gender nonconforming and sexually diverse sections like gay, lesbian, queer are loosely and incorrectly clustered under the same category. “Hijars/Trans” as we commonly call them, are transgender people or intersex people – whose sense of personal identity does not necessarily coincide with their birth sex. In popular perception cross dressers or drag artists are often taken to be as non-cisgender people.

In the Indian context, the transgender community has been an integral part of the culture. From popular legendary figures to regular mentions in the Vedic literature and epics, the presence of transgender characters is a testament to the acceptance of sexual diversity in India. Transgenders have been popularised as a part of the Hindu culture through revered texts including Mahabharata; having been immortalised in characters like Shikhandi, Brihanala and as a manifestation of Shiva and Shakti-Ardhavarishvara. History of India and India’s present culture paints a picture where Hijras/Transgender people often hold important religious significance and consequently were and still are sought out for blessings. This however does not exempt them from facing social inequality, exclusion and often being seen as people associated with witch craft and bad omen. And therefore we come back to the same question: If transgender people are ubiquitous, why is their relevance in our daily lives so limited?

The answer being, that these communities for centuries have been subjected to social exclusion which often means being excluded from the family upon birth or afterwards. Thereafter being coerced to live in ghettos especially demarcated for transgender community. Living on the margins of the society, they are deemed unfit for the “normal” ways of the society and thus remain excluded from schools, offices and other public spaces; making appearances only on occasions either like weddings or sustaining themselves through begging. The lack of access to any other means of livelihood has pushed them to begging and performing folk dances and songs at weddings etc since from the early days of their lives.

Example of positive initiatives:

But a hope can be seen in the initiative taken up by Mrs. Usha Jha and myself, who wish to curate an even brighter future for transgenders in Bihar. Mrs Usha Jha is an entrepreneur and a social worker who runs a project under the name ‘Petal Crafts’ registered under Micro, Small and Medium Enterprises program of the Government of India since 1991- providing a means of livelihood to women of Bihar(state in India) and staging Bihar on International platform. Together they have been working relentlessly towards, not only the upliftment of the transgender community, but also have come up with a novel idea to proliferate the inherent gem of Bihar-Madhubani art. We are set to work with Dimple Jasmin, the representative of the transgender community. Jasmin heads a whole regiment of enthusiastic transgender men and women who wish to re-write their own fates by learning the skill of Madhubani art.

Madhubani paintings and Bihar (State in India) are two sides of the same coin for many. The art form represents the ancient traditions of Mithila and often depict scenes from mythological texts, epics, festivals and other ceremonial occasions. This art form imbued with vibrant colours and geometrical patterns was the brainchild of various groups of women in Mithila region and is now being taken up by varied groups and individuals as it both restores the traditional identity of Bihar and is a lucrative handicrafts business. The introduction of transgender communities to such a skill would provide an alternate means of livelihood to these marginalised group and also open entrepreneurial avenues for them as well as others.

This project called Pehchaan” aims to aid the transgender community in Bihar find their ground and explore themselves beyond the word “Hijra”. By providing them with this skill, Pehchaan has opened those doors that hitherto didn’t exist for the community- the door to a means of livelihood. The project will train and consequently enable them to become financially independent, so their lives are not doomed with limited job opportunity.

The shared dream of Usha Jha and myself, draws a balance between progression and tradition. The project will revive the dying art of Madhubani art and even help it thrive better. As well as, many other transgender men and women like Jasmin, will finally get to carve out their own “Pehchaan”.

Pehchaan tries to splotch the pages of Indian culture with vibrance; in hues of gender and sexual diversity- trying to paint a future with as many colours as in a rainbow.

Our guest writer is Shivani Dewalla, a litigation counsel currently working with the Addition Solicitor General of India, Supreme Court. She is a lawyer working in Delhi, who envisions an equal space for marginalised section in the society and is the genius behind many such programmes. 

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