Surgery still mandated for transgenders to exercise fundamental rights

Almost three years after a Supreme Court judgement that recognised the fundamental rights of transgenders, they are still forced to get a gender reassignment surgery.

Published: 25th June 2017 07:44 AM  |   Last Updated: 25th June 2017 08:04 AM   |  A+A-

Picture for representation purpose only

Express News Service

CHENNAI: Almost three years after a Supreme Court judgement that recognised the fundamental rights of transgenders, they are unable to exercise their rights, without undergoing a gender reassignment surgery first. The law, however, does not require it.

The surgery is painful, expensive and done only in select hospitals across the country. "While our rights exist in legislation, the reality is far from it," Rose Venkatesan, India's first transgender TV host, told Express.

The first widely known judgement to recognise the fundamental rights of transgenders is the National Legal Services Authority (NALSA) v Union of India judgement, which was passed in 2014. The judgement gave broad directives to the Central and State governments to implement public health, social welfare and other schemes for transgenders.

This move made it illegal for government institutions to identify one's gender based on whether or not the person has undergone a surgery but rather accept self-identification. Almost three years after the judgement, the law has still not translated into practice. "In order to avail any educational or medical opportunity, we need to have a medical certificate of our gender-reassignment surgery," said Grace Banu, a transgender activist from Chennai.

Grace lives in a modest apartment in Chennai, where she encourages young transgenders — who yearn for education — to become a member of her family. A family usually has a senior member who then adopts "children" or "siblings".

K Prithika Yashini, India's first transgender police officer, hails from the family Grace lives with. "I encourage all of them to study. And the ones who can't afford the surgery have to continue being trapped in their birth gender till they complete desired education," Grace said, adding that the certificate was required to benefit from even a few government schemes.

"The voter's ID is the only one we can get without much hassle," she said, adding that a surgery is mandated to even change their name officially.

Transgenders who recognise their gender conflict at a young age, are completely demotivated to pursue higher education. "When you're busy battling yourself and your identity, it's hard to concentrate on other things," said Regina, another family member in the house. The engineer works with the accounting team at the food takeaway startup Kolapasi. "I wanted to run away after school. I didn't want to be trapped as a man anymore. I wanted to be myself," she said.

Regina, a teenager back then, could not afford surgery, which costs anywhere between `60,000 and `2 lakh. In Tamil Nadu, the government hospitals that perform the surgery for free, however, do not provide sufficient after-care. "The after-care costs at least `40,000," she remarked.
Most transgenders opt to undergo surgery at private units over government hospitals. "The surgery is free. But it's badly done. There are incisions everywhere and healing is tough," Grace said, adding transgenders feel experimented on when they choose a government facility.

Regina was told that surgery in Thailand would be clean and would make her function like a 'normal' woman as long as she took the medication and hormone pills regularly. But the high school graduate needed at least `3 lakh for it. If she had to pursue a college education, she had to do it as a man. That's when she approached Grace, who promised to welcome her into the family, the moment she graduated.
"I would've been happy to have come out as a transgender after school. But I had to sustain the trauma of being a man for four more years," Regina said.

Government authorities, however, have a different explanation for demanding a sex-change surgery certificate. The explanation is linked to a widely criticised part of the Nalsa judgement.
The judgement said that all transgenders can enjoy the benefits of the OBC reservation category. Upper caste boys, who wanted a better reservation for exams or government benefits, simply chose to call themselves transgenders. To avoid this, the presence of the medical certificate proving sex-reassignment, gave transgenders a clean chit.

However, these loopholes make living harder for transgenders. Activists feel the gap between legislation and actual rights stems from the origin of the movement. "Addressing the HIV crisis in Chennai and Mumbai was the start of the movement in India. In 1992-1993, the government started working out strategies to reduce the disease in these cities and now we have a transgender welfare board in Tamil Nadu," said Dr L Ramakrishnan, vice president of SAATHII (Solidarity and Action Against The HIV Infection in India).

"Even in large cities which are more receptive, it is odd that we have to use the prevalence of HIV as a leverage to get the government's attention for basic rights," he said, adding this poses the risk of excluding many who are in need of help. "Discrimination can be battled with enforcement of administrative and judicial framework," he said.

"The conversation about transgenders is still about sex and genitals and not about growth and development of other members of the community," said Rose, adding that the system should work on enforcing their fundamental rights and choices.

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