On July 12, the Transgender Welfare Board was constituted in the Union Territory of Jammu and Kashmir. This was done as per the provisions of the Transgender Persons (Protection of Rights) Rules, 2020. The Board, headed by the Chief Secretary of Jammu and Kashmir, has members from various concerned departments and four members from the civil society – two from Jammu and two from Kashmir. However, queer activists have criticized the inclusion of just a single transgender person amongst the representatives. The allegations are that the Board in its present form does not truly represent the grievances and the aspirations of the trans community, raising questions if the government is serious about transgender welfare or whether the new developments are just cosmetic in nature.
The Government of India enacted the Transgender Persons (Protection of Rights) Act, 2019, and Transgender Persons (Protection of Rights) Rules, 2020, after numerous amendments. The current form of legislation has sparked strong opposition from the trans community, which sees them as a dilution of the NALSA judgement. The rules mandate the governments to create Transgender Welfare Boards in each state to protect the rights of the transgender community and ensure their access to welfare measures. Many states had Transgender Welfare / Development Boards even before the Central Rules were notified, but their constitution’s pace has only increased after the new rules came into effect. While some states have constituted Transgender Welfare Boards, the community is unhappy with their functioning.
Dr Ajaz Ahmed of Sonzal Welfare Trust, Kashmir, has criticized the newly formed Transgender Welfare Board calling it non-representational. “This Board finds no representation at all from the community, and the government has made fun of the community by setting up the body without considering transgender community members’ opinions. The Board lacks representation from community members, leaders or experts.”
Speaking of the Uttar Pradesh Transgender Welfare Board, Ritwik, a queer feminist activist from Lucknow, says that only Hijra / Kinnar Community members dominate the transgender representation with no representation from trans men, gender non-binary or intersex community members. “The entire discussion was on how much respect was given to trans people in Hinduism, and we must bring back the same culture. There was no discussion on education, employment, political progress, and empowerment of the community,” notes Ritwik citing discussions in one of the meetings.
Kolika Mitra, who is a member of the West Bengal Transgender Persons Development Board, recommends that “The Transgender Development Board needs to continuously push the government to understand the needs, requirements and rights of the transgender community across caste, religion, class, age, ethnicity, geographical location, and other intersections. It is crucial to address issues and problems around accessibilities, opportunities, and notions of safety in all educational, health, professional, and other public spaces and institutions for the transgender community”.
While nearly a dozen states have formed Trans Welfare Boards, it is interesting to note that Delhi, from where all these legislations are framed, doesn’t have a Transgender Welfare Board yet. The national capital has failed to constitute a Transgender Welfare Board despite numerous representations to the government. A complaint in this regard was filed to the National Human Rights Commission to which the state government responded by saying that the work is in progress. Clearly, the government lacks the will to support the community, which has faced oppression for ages.
It may be noted that in addition to the State Transgender Welfare Boards, the Central government has also constituted the statutory body, National Council for Transgender Persons, to advise the government on all policy-related matters. The Council has also drawn flak for not being representative, for having more cisgender persons on Board than transgender persons, and for picking transgender persons favouring a certain ideology. Recently, the only intersex member of the Council, Gopi Shankar, resigned from it, citing a lack of any constructive work being done by the council, calling the post ‘ceremonial’.
The welfare of transgender persons is a responsibility that is shared by multiple stakeholders. Apart from the National Council and State Welfare Boards, the National Human Rights Commission has been sponsoring research, providing advisory support, and processing complaints of the transgender community. The National Institute of Social Defense is the Secretariat for the National Council and is also responsible for rolling out schemes, including training programs for district magistrates who are responsible for issuing transgender ID cards and certificates. It is interesting to note that so far, not even 10,000 transgender ID cards have been issued when the official count of transgender persons in Census 2011 was 4.87 Lacs.
The Ministry of Social Justice and Empowerment has also come up with shelter homes in a few cities for transgender persons called Garima Greh. The National AIDS Control Organisation is also working towards creating a Centre of Excellence for Gender Affirming Care at AIIMS Delhi. It is noteworthy that Delhi, which hosts many reputed tertiary care public hospitals, has no provision for gender-affirming surgery promised under Transgender Persons Act. This makes transgender persons dependent on expensive and unregulated private service providers.
It is time that this multiplicity of agencies working on empowerment of the transgender persons speak to each other and coordinate their efforts. This could be possible through a council or a coalition of various governmental and non-governmental agencies. An Inter-ministerial group that brings together all the ministries working on transgender rights should be formed at the central level for effective coordination on a mission mode. We also need a National Commission for transgender persons along the lines of the National Commission for Women, which can deal with proactive empowerment of and protection of the rights of transgender persons. The law ministry, which is now identifying and removing redundant laws, needs to review the existing laws that exclude transgender persons. An example is the Medical Termination of Pregnancy Act which is only for women and thus excludes transgender men.
While the Central government has shown intent toward transgender empowerment by enacting Transgender Persons Act, National Council for Transgender Persons, and launching the SMILE Scheme, certain other actions are in contravention of this spirit. For example, in July 2022, India abstained from voting for extending the mandate of the Independent Expert on Sexual Orientation and Gender Identity at the United Nations Human Rights Council. This is a letdown for the sexual and gender minorities. Similarly, enacting several laws last year, like The Surrogacy Act and The Artificial Reproductive Techniques Act, which excludes queer persons from its fold, is not in line with the vision of an “Inclusive India”. As we celebrate the Amrit Mahotsav of India’s freedom, we must strive to undo the historical discrimination against the transgender community and ensure its full mainstreaming in society with rights and dignity.
Dr Aqsa Shaikh (She/Her) is an out and proud trans woman. She is one of India’s first transgender doctors. She is an Associate Professor of Community Medicine, Nodal Officer for Covid Vaccination Centre, Hamdard Institute of Medical Sciences and Research, Jamia Hamdard, Delhi. Aqsa is an academician and researcher and is a vocal advocate for rights-based gender justice for transgender persons.