(This is a guest post by Daksh Kadian)
Transgender community in India, also referred to as Hijras and Kinnars, has been historically discriminated, deprived of their self-identity and subjected to intense stigma and violence. The criminal procedural law suffers from the same vice and fails to uphold the dignity of transgender persons. This marginalised community is forced to eke out a living from sex work and begging. This results in routine exposure to police action and criminal law where they are left without any protection. The Indian criminal law in general and the safeguards in particular only exist in a binary. They do not account for the concerns of other genders and changing contours of gender identity. In this piece, I shall restrict my analysis to law relating to search and custody of transgender persons.
Section 51 of the Criminal Procedure Code, 1973 [Cr.P.C.] specifies the procedure for search which is to be followed upon arrest of a person. As per the provision, while the person is kept in custody, he/she/they are only allowed to retain necessary items. As a safeguard, a woman can only be searched by a woman officer and with strict regard to decency. There is no such special protection for men.
We run into multiple difficulties when the person so arrested is a transgender person. First and foremost issue is the determining the gender. Many jurisdictions treat the self-identification of the arrestee as the premise for determining the custodial safeguards. A transgender person who identifies as a female is only searched by a female officer and vice versa. However, India’s transgender law follows a certification model to gender determination. An individual can be recognised as transgender only upon obtaining certificate of identity from the District Magistrate, which requires as person to mandatorily undergo a sex-reassignment surgery. Essentially, a major portion of the transgender population which fails to obtain a certificate due to bureaucratic hassles or does not wish to undergo a sex reassignment surgery or cannot afford such surgical processes is rendered without any protection.
In absence of the certificate, a transgender person who may identify as a female will still be searched by a male officer and put in custody with male inmates. The experience can be particularly agonising if the enforcement agencies choose to conduct a strip or intimate search. In Mumbai, a transgender woman despite producing the gender certificate and not being an arrested person, was insisted to undergo a medical examination for gender confirmation in order to determine her eligibility to make a molestation complaint. As per procedure in Indian jails, whenever “transgender individuals are brought to prison, they are sent to the chief medical officer. If they have female genitals, they are classified as women. So it goes for those with male genitals.” This runs contrary to the NALSA Judgment which gives the transgender persons the right to be recognized as ‘third gender’ if they don’t identify with the male-female binary and insofar the issue of gender determination is concerned, it held that “the gender to which a person belongs is to be determined by the person concerned”. In other words, gender identity must be based on self-identification and not on medical examination.
In the US, the police manual of multiple states like Seattle, Columbia and Philadelphia, treat self-identification by the individual as the ground for determining the gender identity of an individual. Under no circumstances the members of the enforcement agencies permitted to search any person solely for the purpose of determining that person’s gender. It is mandatory to use pronouns as requested by the individual (e.g., “she, her, hers” for an individual who self-identifies as a female; “he, him, his” for an individual who self-identifies as a male; and “they, them, their” for an individual who self-identifies as non-binary). The transgender persons are housed in transported and housed in separate detention facilities. In the event a transgender individual requires immediate medical care or medication, including hormone therapy, the individual is transported to the nearest medical facility.
Similar to the US, New South Wales in Australia follows the self-identification model and no importance is attached to the birth certificate per se.
UK has a certification based model but the same is not adhered to in absolute strictness, unlike India. As per information disclosed by London Metropolitan Police pursuant to a Freedom of Information request, a person is asked what gender they consider themselves to be and what gender they would prefer to be treated as, if there is a doubt. If a person is unwilling to make such an election, efforts are made to determine the predominant lifestyle of the person. For example, if they appear to live predominantly as a woman, they should be treated as such. After the above steps have failed to yield conclusive outcome, birth certificate is relied upon.
The absence of separate custody rooms puts the transgender persons to high risk of violence, sexual abuse and assault. Chandramukhi Muvvala, a transgender rights activist, stated that “when someone is forced into a prison with cisgender prisoners, that can lead to bodily harm.” The study conducted by Professor Valerie demonstrates that the practice of forcible allocation of transgender woman to men’s prison made them vulnerable to sexual assault and violence. Manoj, born a male but having feminine features, was sent to the male prison and “his cellmates stripped him the day he was imprisoned after being remanded in judicial custody.” Similarly, Shinoj was “shattered by the experience” of being forced to stay with male inmates and Shinoj left jail with AIDS contracted from cellmates who forced him into sex. As per the United States Transgender Survey 2015, transgender people are ten times more likely to be sexually assaulted by their fellow inmates and five times as likely to be sexually assaulted by staff. No similar studies has been conducted in India but it can be speculated that the results would be same, if not worse, given the complete absence of safeguards. Kerala is one of the only states in India that has endeavoured to set up separate prison blocks for transgender persons.
The second issue is protecting the identity of the arrested transgender person. A lot of transgender individuals do not reveal their real identity to the family and secretly follow their self-perceived gender identity. They tend to fear familial retaliation due to the social stigma associated with their identity. As per Section 50A of the Cr.P.C., the family members of the arrestee have to be compulsorily informed about the fact of arrest and the place of detention. In doing so and in further investigation, it is unclear if the law enforcement agencies should protect this alter ego of the arrested person. It has been observed that the relatives often turn hostile and disown those who assert their gender identity. Left without a support system, upon release such transgender persons are forced to take up sex work and begging to make the ends meet. Ideally, a choice to not disclose gender identity to the family members must be given to the arrested transgender person. However, the non-disclosure of the identity to the family members should not become the ground for depriving the transgender persons of the special protections linked to their gender.
The third issue is lack of respect for the elements of transgender identity. India’s Criminal Procedure Code and police manuals are void of any guidance and regulations that govern the police interaction with transgender individuals. The police has a free hand to not address and refer to transgender individual by their adopted name and preferred pronouns. Vyjayanti Vasanta Mogli, a transgender woman and activist, stated that the police authorities threaten the community members by saying that “tum jaise log gair kanooni ho. Ladke hoke ladkiyon ke kapde pehenna gair kanooni hai. Ye dramebaazi, band karo warna andar kar denge.” (People like you are illegal. Men masquerading as women, wearing women’s clothing is illegal. Stop this pretence or we will arrest you.) The practice of ridiculing and embarrassing a transgender person by the police authorities invades upon the fundamental right to life, basic dignity, privacy, non-discrimination, and freedom of expression.
The fourth issue is the failure of the existing law to address the special medical needs of the community. As per Section 55A of Cr.P.C., it is the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The person so entrusted may be the police or the prison authorities. The above specified healthcare protection ought to encompass procedures such as hormone replacement therapy, sex-reassignment surgery and a well-equipped professional assistance. However, it has been observed that prison health-care machinery is handicapped when it comes to transgender persons. Ishu, a trans-woman, was lodged in Bangalore Central Prison where she developed an infection in Ishu's silicone implants. The prison medical officer only gave generic painkiller medicines instead of referring Ishu to an external hospital. As per Ramya Jawahar Kudekallu of the Alternate Law Forum, “It (Ishu’s case) was a great lapse in medical treatment. It stemmed from two reasons - general apathy and disregard for the well-being of transgenders, and more importantly lack of preparedness of medical officers within prison to deal with such cases.” The CLPR lawyer Jayna Kothari who intervened so to shift Ishu to an outside hospital, observed that “it (transgender health) is a thoroughly neglected area and one that results in a lot of abuse and harassment.” Presently, there are no guidelines to address the medical requirements of the arrested transgender person or those remanded to the custody.
The prevalent practices in India severely impinge upon the fundamental rights of a transgender person to non-discrimination, life with dignity and freedom of expression. The Indian criminal procedural law, in its present form, is marked by evasiveness to the real legitimate concerns of the community. Therefore, it is of paramount importance that the amendments are made in the domain of gender identification, search, and custody by taking inspiration from the gender sensitive policing instruments of other countries.
[Note: This post was updated on 30.07.2020 after different readers pointed out grave errors in some use of language. Sincere apologies for what were inadvertent errors, which have since been corrected.]