Vikramaditya Sahai on the historical antecedents to the Transgender Persons (Protection of Rights) Act, 2019.

Transgender people (trans) find themselves disenfranchised in the Transgender Act 2019. However, this is not a contemporary development. Rather, it is rooted in the colonial legacy of British and French colonialism in India. Trans were categorized as a medical case (in terms of occupational immobility) and in an attempt to control the so-called hijra gharana (Eunuch’s houses, or houses of transgender people), boys were “rescued”. French doctors declared Trans-ness, non-binary-ness or third gender-ness a bio-medical issue. In this understanding, trans-ness is not only a form of “gender-based identity” but actually based on genealogy, kinship and patronages. One of the most important cases in the history of sexuality and gender in India was the Queen Empress vs. Khairati case of 1884. In it, Khairati, biologically male but identifying as a woman, was put before a court for cross-dressing and “habitual sodomite”. She was eventually acquitted, but precedence for harassing transgender people was set. This was a first case registered under Section 377 of the Indian Penal Code, which penalizes sexual acts “against the order of nature”. Only in 2018, the application of Section 377 to consensual homosexual sex between adults has been declared unconstitutional.

Vikramaditya Sahai is a post graduate in political science from University of Delhi. They have previously worked as faculty at the Gender Studies Department, Ambedkar University, Delhi and as a consultant on a project to study non-normative sexuality and gender housed at the Advanced Centre for Women Studies, TISS, Bombay. They are interested in sex, feeling, and the structure and narrative of living in their relation with forms of sociality, law and politics.

The NALSA judgement of 2014 (National Legal Services Authority v. Union of India) has been a landmark judgement of the Surpreme Court of India, introducing the third gender for transgender people. In Article 14 of the Constitution of India, discrimination is prohibited on the grounds of race, caste or sex; however, there is no category of gender. The Transgender Persons (Protection of Rights) Act, 2019, is seen by many in country and internationally as a regression from the NALSA judgement of 2014.

Power is only understood to be at work when there is abuse and violation, and it is for this reason that all conversations about power are instantly made to be about checking abuse and violation in the Trans Act, power between cis and trans people is criminalised with sexual abuse and the conversations around abuse. This I feel actually empowers the State with greater surveillance and greater powers because the biggest violator of this Trans act in this country is the State.

What does a rights-based discourse actually mean when the State itself is the primary actor that leads to violation? It is for this reason that we need to have these conversations during Pride month; to think about how to bring the conversation about power away from criminality to a conversation about freedom and equality.