This post won the 2023 Laadli Media & Advertising Awards for Gender Sensitivity.
When Shakti*, a transman, informed officials that he had undergone an upper body operation and was on a monthly dose of testosterone, he was ridiculed. “The lady doctor asked me to strip, and when I refused, two prison officials forcefully undressed me. Everyone kept staring at my private parts and made fun of the stitches on my chest,” he recalls.
Kamala*, a transwomen, found herself in a male prison, where she was constantly raped by male inmates. “I was threatened to keep quiet by the other prisoners, and they kept asking me for sexual gratification. I had severe hemorrhoids with infection and puss, to an extent that I was unable to walk. I was taken to a doctor and then kept in an isolation ward,” she talks of her experience of incarceration.
When 19-year-old Ishu*, another transwoman, was incarcerated in Bengaluru Central Prison, she developed a serious infection in her silicone implants. When she told the prison medical officer about it, she was taken lightly and put on generic painkillers. She was only sent to an outside hospital after a legal advocacy team intervened in her case.
The experiences of the three trans persons aren’t just one-off incidents, but the lived realities of hundreds of trangender people incarcerated in Indian prisons presently. While the very nature of prisons makes prisoners a vulnerable category on their own, transgender persons in India’s prison systems remain the most invisible among all vulnerable groups, and at a greater risk of both physical and sexual abuse from prison officials, as well as medical negligence.
According to studies, transgender prisoners also experience an amplification of trauma underpinned due to lack of legal gender recognition, inability to gender-affirm, discrimination, transphobia, gender maltreatment and violence by other prisoners and prison staff.
What Data Says
Just how invisible transgender persons are in the Indian prison system can be gauged from the near absence of data about them. For example, the National Crime Records Bureau’s Prison Statistics still reports data of prisoners in the male-female binary.
A study conducted by Commonwealth Human Rights Initiative (CHRI) and University of Dundee, found that just 9 out of 34 Indian states and union territories – recorded data on prisoners outside of male and female binary
While others like Arunachal Pradesh, Assam, Chhattisgarh, Mizoram, Nagaland, Tamil Nadu, Telangana, Chandigarh, and Andaman & NicobarIslands did not record data of Transgender inmates separately at all, in states like Jharkhand, Uttar Pradesh, New Delhi, West Bengal etc., it was found that there was no internal uniformity in jail record-keeping.
The absence of a proper mechanism or uniformity in the maintenance of data at the national and state level means it is difficult to estimate their exact numbers. According to data, 214 transgender persons are recorded to be imprisoned in different prisons throughout the country, but experts say that this number is likely to be much higher.
The absence of a proper mechanism also means that they are prone to misgendering – something that has a direct consequence on their treatment by prison officials during their admission to prisons.
While Model Prison Manual Rules ( MPM) dictate that specific admission process with respect to recording prisoner information, physical search, medical examination of inmates and allocation of wards, transgender persons face specific problems with respect to these procedures.
Particularly problematic is the issue of body searches. While prison rules call for male prisoners being searched by male staff, and female prisoners by females, currently there exists no policy on search procedures for trangender prisoners. Due to this, procedures like strip search and superficial checking can be very invasive and affect the individual’s dignity.
Medical examination of the individuals and their placement within prisons are the two other aspects that require careful consideration. For example, the CHRI report, that gathered data on this found that presently there is no uniform policy across states for placment of trangender prisoners. In absence of a uniform policy, different states follow different procedures, with some placing prisoners as per gender mentioned in court warrants, or on the basis of a medical officer’;s advice.
“This reduces both gender and gender identity to genitalia, which is violative to the experience of transgender persons. Further, this determination of gender identity through an inspection of genitalia, removes scope for negotiations of safety and comfort that the transgender person could avail through the self- determination of gender identity,” scholars Arijit Ghosh and Sai Bouroythu say.
When Law Is Not Enough
Indian courts have repeatedly upheld the right of trans people for government’s recognition on their own terms, without mandatory recognition or discrimination. In 2014, in its landmark National Legal Services Authority (NALSA) versus Union of India judgement, the Supreme Court of India had ruled that transgender people should be recognised as a third gender.
Amongst its directions, the court had backed transgender persons right to self-determination of gender identity, legal recognition of the transgender identity, establishment of transgender welfare boards, and direction to governments at the central and state level to devise policies for inclusion of the community.
Unfortunately, the implementation of the judgment has been found lacking, with prejudice against the community, still reflecting through colonial era laws, as well as a new set of policies set out by the government. A case in point is the The Transgender Persons ( Protection of Rights) Act, that was enacted in 2019, but several sections of which have been challenged in the Supreme Court of India, with trans activists saying that some of the rules of the act violate the provisions of the Act itself.
For example, while the NALSA judgment allowed self-determination of gender, the 2019 Act gives the district magistrate power to recognize a person as trans. It also specifies that to identify as male or as female, a proof of surgery be supplied to the magistrate – something that goes against the idea of self determination.
Activists say that the 2019 Act also institutionalizes legal discrimination since it makes sexual abuse against transgender people by just “6 months of imprisonment and fine”, which is much less than the punishment for rape against women that is punishable by seven years , but that may also be for life or for a term extending to ten years, and also liable for fine.
Way Forward
While India has taken its first steps to enable legal provisions with respect to transgender people, just recognition of the community’s rights are not enough. It is important for the process to go beyond, and gather data on the experience of the community within the prison system and focus on specific vulnerabilities faced by them.
To begin with, state governments and prison systems need to make facilities for inmates to be able to self-identify as transgender. They also need to review their existing acts and rules to ensure recognition of third gender as a special category in documentation, special search procedures, as well as placement criteria with emphasis on ‘identity based placement’ instead of it being genitalia based.
Specific issues that require action include violence experienced by the community based on gender identity, as well as devising measures that take into account specific medical needs of transgender people.
“Prison administrators must provide all transgender persons adequate access to medical care and counselling, including with regard to reproductive health, access to HIV/ AIDS information and access to hormonal or other therapy as well as to gender reassignment treatments where desired”, said the CHRI report.
Lastly, it is essential that any laws passed with relation to the community have the community’s consultation. Any efforts to bring in reforms without talking to the community first will only lead to botched policymaking and further resistance from the community due to the same.
*names changed