Litigation as a Tool for Change: Transgender Rights in India
Janya Kothari and Mihir Rajamane reflect on strategic litigation around transgender research, undertaken by the Centre for Law and Policy Research, including valuable lessons for Scotland.
Janya is Executive Director of the Centre for Law and Policy Research – a law centre and policy forum with strands including LGBT+ and disability rights. She is a Senior Advocate and practices in the Supreme Court of India. Mihir is a Junior Researcher with the Centre, alongside reading for the BA Jurisprudence at the University of Oxford. He is interested in law and public policy, and their role in providing material benefit to people.
The rights of transgender persons in India has had an indispensable relationship with courtroom litigation. The watershed moment came in 2014, when the Supreme Court recognised transgender persons in law and their fundamental rights under the Constitution of India, 1950 including the right to live with dignity and the right to equalityi. Following this, the courtroom became a new reliable platform to engage in advocacy for recognition of transgender rights.
The Centre for Law & Policy Research (CLPR) has taken on almost 30 cases over the last 5 years, representing transgender clients in order to secure their rights, besides its other work on anti-discrimination and equality for persons with disabilities, women and girls and Dalit and Adivasi persons.ii
One of the first petitions CLPR filed on behalf of transgender persons was in the landmark caseiii that struck down s 377 of the Indian Penal Code, 1860. The section criminalised consensual sex ‘against the order of nature’, such as same-sex intercourse. However, the law’s criminalisation was much broader in practice. It was used to criminalise transgender persons in their everyday lives that were filled with violence and threats only on account of their identity. The petition filed by our three transgender clients, who were the only trans petitioners among all the petitioners in the set of cases, challenged this law for violating the fundamental rights of the LGBTQIA+ community.
The petition was heard along with several other petitions challenging the law. In 2018, a five judge Bench of the Supreme Court struck down the law, recognising that s 377 was a relic of colonial morality. The representation on behalf of transgender persons ensured that the judgment, which focused on the freedom of sexual orientation, also went further and also embraced equality and autonomy rights based on gender identity. Various judges’ opinions recognised the cis-heteronormative structures in society, and the particular impacts such criminalisation would have on access to healthcare for transgender persons, especially in HIV prevention efforts.
Along with the 2014 judgment recognising transgender persons, the 2018 s 377 judgment has cemented the judiciary’s position as an important forum for the negotiation of transgender rights in India. However, its role is not limited to Supreme Court rulings. At the State level, High Courts have quickly taken up the task of implementing the constitutional vision expressed by these Supreme Court rulings. This is where the tool of strategic litigation has come to life.
In India, strategic litigation goes beyond the ‘standard’ case of a petitioner asking for judicial review regarding something that affects them. In the 1970s, the Courts in India relaxed their procedural rules, allowing for ‘public interest litigations’ (PILs)iv. This allows public spirited persons or organisations to approach courts on behalf of the public interest, even if they are not personally effected by an issue if the persons who are affected by it do not have the means to access the courts themselves. The Courts through its PIL innovation have played an important role in implementation of fundamental rights for marginalised groups.
The Courts as a Forum for Constitutional Dialogue with the Government
Some of the most important outcomes achieved through strategic litigation have been in cases where the Court has not necessarily issued an order but acts as a constitutional mediator with the government. In one important case relating to change of name and gender in educational certificates, though it was an individual petition, the Karnataka High Court went beyond the relief and directed the government to issue a Circular to all institutions to allow name and gender change requests by transgender applicants, which was done by the government.
Most recently, one of the most significant developments have been in a case relating to equal opportunities for transgender persons in public employment. In a PIL relating to reservations for transgender persons in public employment, the State Government of Karnataka had informed the Karnataka High Court that they intended to provide affirmative action for transgender persons by reserving some posts in public employment by merely including transgender persons within the OBC or “Other Backward Castes” category. CLPR filed an intervention in this PIL on behalf of Jeeva, an NGO working on transgender and intersex rights and requested the government to implement the reservations across various caste-based groups instead and provide horizontal reservation. This approach would ensure that instead of being lumped within the OBC category, within which it would be almost impossible for trans persons to be selected for government jobs, if a horizontal reservation for transgender persons was provided that cuts across different caste categories, the same way that reservation was provided for women in public employment, the different caste identities of transgender persons would be recognised and would recognise the intersection between gender identity and caste when providing affirmative actionv.
The proceedings in High Court did not involve a tradition judicial review. Instead, the Court primarily acted as a forum where Jeeva could put forth its claim, rooted firmly in the promises of equality, liberty and dignity in the Indian Constitution. This elevates the claim in three very important ways. First, it provides the authority of the judiciary to take the claim seriously, even if the Court says it cannot issue orders, as it did in this case. Second, the claim is framed in constitutional terms, which allows the claim to be cast as an obligation, rather than a grant of political will. Third, the forum grants legitimacy to the claim in mainstream discourse, through reporting and other media that bring light to this claim.
Ultimately, while the Court could only order the government to consider the claim, the government did consider it, and amended its civil services recruitment rules, to the one proposed by Jeeva and provided 1% horizontal reservation in government employmentvi. The example provides a lesson in how the Court can be used as a forum for negotiations in a constitutional framework. A similar process took place in another case at the Karnataka High Court, where the State Government agreed to amend a law that previously allowed the ‘control’ and ‘registration’ of ‘eunuchs’ by removing the mention of the term ‘eunuchs’ replacing it with ‘persons’.
Perhaps the best example in action of how the Courts act as a forum for constitutional negotiation came during the COVID-19 pandemic. In various States, High Courts took up petitions requesting relief as the economic shut down left many vulnerable people in a dire situation. CLPR represented transgender persons and organisations in five High Courtsvii. In each, laying a claim to the right to life, the petitioners requested immediate relief for basic provisions like food, shelter and healthcare.
In two of these States, the State was ordered to provide food supplies irrespective of whether transgender persons had the documentation necessary to claim State benefits. This is something particularly important for transgender persons who continue to face problems in obtaining correct documentation under the Transgender Persons (Protection of Rights) Act, 2019 (‘Trans Act’). In two others, the State agreed to either do it themselves, or provide the necessary documentation immediately. The Courts also heard the concerns of transgender persons related to access to vaccines and healthcare. Two States also agreed to provide cash assistance.
While some of these measures may have been taken regardless of whether transgender persons came to the Court, bringing the claims to Court certainly appears to have sped up the process.
The Litigation Roadblock: Pendency
While the above successes can make one think that litigation is the best way to bring about social change, this may not always be the case and there are challenges here as well. Court delays are a huge problem in India, and often many important cases of strategic litigation remain pending with little outcome. We have seen that constitutional challenges to laws such as the regressive Trans Act that imposes medical conditions on change of gender, among other things, have also remained pendingviii. In the meantime, transgender persons continue to struggle to legally change their gender on documentation.
Much of the recent delay can be attributed to reduced Court time and other cases being prioritised during the COVID-19 pandemic. However, this cannot be the only reason. The interest of the Court and the judges is a vital factor in strategic litigation of this kind in India: it is impossible to achieve even small outcomes unless the Court is willing to provide time for such cases, let alone rule in favour of the petitioners. This serves as a reminder that while the Court is an important forum to make use of, it is essential that other methods of engagement with the State and society continue through representation, organisation, education and protest.
Petitioner-led Strategic Litigation
In our experience in CLPR we have found that strategic litigation efforts which have the best outcomes are ones which are led by the petitioners and which are rooted in grassroots work and with communities on the ground. In such strategic litigation, the reliefs and remedies are devised by the needs of the community, and also implemented by civil society groups, activities and NGOs with community support. All of CLPR’s petitioners in transgender rights litigation have been transgender persons, often community leaders, or organisations led by transgender persons who work closely with trans, LGBTQI, and Dalit and Adivasi groups. This ensures that the representations in Court are part and parcel of the broader transgender rights movement.
Taking Strategic Litigation Forward
Most legal systems in the West do not allow strategic litigation through PILs, or where the prayers for relief are for positive rights. However, many Global South nations have evolved their legal procedure and jurisprudence in recognition of the need for the positive implementation of human rights. Regardless, the lessons from Indian strategic litigation on using Courts as a forum for constitutional negotiation and to urge the Court to provide systemic solutions for creating a culture of respecting human rights, can be applied within the limits of each system.
The Indian legal system is still in need of reform and improvement to ensure that strategic litigation is made more accessible. The Courts need to be able to resolve their pendency issues and delays if litigation is to be a viable route for securing rights. There is also a need for ensuring judges have the ability and interest to prioritise such cases. This requires systemic change, such as creating special Equality Courts, with judges trained for the job of adjudicating equality and human rights matters.
However, the special role of strategic litigation in the recognition of transgender rights in India cannot be taken away. Along with education, advocacy, awareness and other efforts to bring about change, the courts, lawyers and the judiciary have played a very important part in advancing equality for trans persons and at CLPR we have learnt valuable lessons from such litigation and hope that these lessons are useful for similar struggles for equality in other parts of the world.
i NALSA v Union of India AIR 2014 SC 1863.
ii Read more at Transgender Rights Litigation (CLPR)<https://clpr.org.in/our-work/transgender-rights/>.
iii Navtej Johar v Union of India (2018) 10 SCC 1.
iv Read more about PILs at here
v Read more about the difference between these two affirmative action policies in Jayna Kothari et al, Making Rights Real: Providing Reservation for Transgender & Intersex Persons in Education and Public Employment (CLPR, Bangalore, 2018) available at <https://translaw.clpr.org.in/reports-and-policies/making-rights-real-policy-brief-india/>.
vi The specifics of the policy can be found at Mihir Rajamane, Horizontal Reservations for Transgender Persons : Taking Intersectionality Forward (CLPR Blog, 2021) available at <https://clpr.org.in/blog/horizontal-reservations-for-transgender-persons-taking-intersectionality-forward/>.
vii Mohammed Arif Jameel v Union of India WP 6435/2020 (Karnataka High Court); Vyjayanti Vasanta Mogli v State of Telangana & Ors. WP 74/2020 (Telangana High Court); Kabeer C @ Aneera v State of Kerala & Ors. WP(C) 9890/2020 (Kerala High Court); Grace Banu v. The Chief Secretary, Government of Tamil Nadu WP 12035/2021 (Madras High Court); Thangjam Santa Singh v. State of Manipur & Ors PIL 45/2021 (Manipur High Court).
viii Grace Banu Ganeshan & Ors. v Union of India & anr. WP(C) 406/2020 (Supreme Court); Ondede v Union of India WP 11679/2020 (Karnataka High Court).