Transphobia in Indian Prisons: The Dark Reality



Understanding Transphobia

“Seldom, our society realises or cares to realise the trauma, agony and pain which the members of transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.”


Supreme Court, in the NALSA judgement[1], had recognised the existence of the third gender and gave trans people the right to self-identify as male, female or non-binary. However, the Indian prisons still support a regressive system where trans people are misgendered and abused. The prison systems maintain all of their records of sex, thereby conforming to the gender binary.[2] Most trans and non-binary people are often assigned the prisons of the gender they were assigned at birth instead of the gender they identified with now, which worsens their gender dysphoria.[3] To fully understand the struggles that trans women undergo in prisons, it is essential to understand basic concepts regarding sex and gender.


The Transgender Persons (Protection of Rights) Act, 2019 defines a transgender person as:-

“A person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such persons has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”


This definition lumps all genderqueer persons under the term transgender, which is incorrect if the definition provided by the Transequality website, where transgender people have been defined as those whose assigned gender at birth does not align with the gender they identify with now.[4]


Gender dysphoria refers to the distress caused by the disharmony between a person’s sex and gender.[5] Sex refers to the physical characteristics, including reproductive organs, hormones, etc., possessed by the person at birth. In contrast gender is a social construct that determines the social roles with which a person identifies.[6] Cis-gendered people are those whose gender and sex are congruent, in contrast to transgender and non-binary people.[7]


It is necessary to understand the various facets of transphobia in everyday life. One of the most overlooked aspects of this form of bigotry is how it plays out in prisons.


Transphobia in Prisons


Lack of primary education about sex and gender identity has forced people not operating within the confines of the gender binary into exclusion. Most states in India in India do not even maintain separate records about trans inmates, which is revealed by the report prepared by Commonwealth Human Rights Initiative[8]. Without any information about transgender people and their situation-specific needs, the prisons cannot even take any initiative towards alleviating the situation even if they wanted to.


Prisons are confines where the inmates are highly vulnerable due to the power imbalance not just between the prison authorities and the inmates but also within the power structures created within the prison inmates. The prison inmates are entirely dependent on the prison authorities for their survival, even though they are in acute danger of being abused by these same authorities in the first place.[9] While every inmate is exposed to a new layer of vulnerability in the situation owing to their separation from their friends, family and comfort zone, certain groups like transgender people find themselves in even more danger than the others.


The United Nations have recognised this fact in the Nelson Mandela Rules, highlighting the situation's gravity.[10] These rules elucidate how prisons need to pay heed to the unique requirements of ultra-vulnerable groups. Transgender and transsexual inmates usually face medical complications regarding hormonal treatment, genital surgery, breast surgeries etc., that are centred around a trans person’s transition to the appropriate sex. Trans prisoners in Bengaluru reportedly only received generic painkillers for fatal surgery based infections[11]. Apart from the difficulties faced at a medical level, trans people are also at a far higher risk of sexual abuse at the hands of the inmates and the prison authorities.[12] It is incredibly disheartening to see that despite conscious efforts of awareness being spread about queer rights, prisons have maintained their bigoted biases from time immemorial.


The Proposed Solution


With growing awareness about trans rights, prisons have taken up efforts to bring about the requisite reforms. However, these reforms barely meet the bare minimum requirement of change required to incorporate trans people into the folds of a functioning society. The Vellore Academy of Prison and Correctional Administration undertook an effort of sensitisation of genderqueer prisoners amongst the prison officials. However, this effort had minimal impact at best.[13]


There needs to be a complete upheaval of the system in place. A separate prison for genderqueer folks needs to be established, and genderqueer prisoners should be given the choice of prison they want to be admitted to. Medical facilities need to be updated to address trans-specific concerns. Whether or not the trans person has transitioned their gender, their gender identity needs to be respected to not worsen the gender dysphoria this oppressed class of people experiences.


Conclusion


Although prison reforms will make a remarkable difference in fighting the war against transphobia, we need to acknowledge that this transphobia culminates from aeons of bigotry being perpetuated in our culture. Mere legislation will not erase the exclusionism that trans people experience their entire lives. The world operates on the gender binary, and the fact that the prison systems operate along the same lines is not surprising.

However, merely framing laws against the maltreatment of trans people in prisons will not suffice. Gender education needs to be incorporated in all members of society, and sensitivity surrounding these issues needs to be developed at an early age.

India is a nation that prides itself on its diversity, and the lack of acceptance towards the various factions of society is extremely shameful. India needs to welcome positive change with open arms if it is to progress to its full potential.


[1] National Legal Services Authority v. Union of India [2] Prison Statistics India | National Crime Records Bureau Ncrb.gov.in, https://ncrb.gov.in/en/prison-statistics-india (last visited Mar 16, 2021) [3] Transgender Persons Invisible In India’s Prisons - BehanBox BehanBox, https://behanbox.com/transgender-persons-invisible-in-indias-prisons/ (last visited Mar 16, 2021) [4] Frequently Asked Questions about Transgender People National Center for Transgender Equality, https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people (last visited Mar 16, 2021) [5] What Is Gender Dysphoria? Psychiatry.org, https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria#:~:text=Gender%20dysphoria%3A%20A%20concept%20designated,gender%20 diverse%20people%20experience%20dysphoria. (last visited Mar 16, 2021) [6] What is gender? What is sex? - CIHR Cihr-irsc.gc.ca, https://cihr-irsc.gc.ca/e/48642.html#:~:text=“Sex”%20and%20’gender’,attributes%20in%20humans%20and%20animals.&text=Gender%20refers%20to%20the%20socially,men%2C%20and%20gender%20diverse%20people. (last visited Mar 16, 2021) [7] Supra Note IV [8] Arijeet Ghosh, Madhurima Dhanuka & Sai Bourothu, LOST IDENTITY: Transgender Persons inside Indian Prisons. [9] Ibid [10] A/RES/70/175 - E - A/RES/70/175 - Desktop Undocs.org, https://undocs.org/A/RES/70/175 (last visited Mar 16, 2021) [11] Transgender prison inmates face abuse, neglect in Bengaluru U.S., https://www.reuters.com/article/india-transgender-prison-health-idINKBN1570S9 (last visited Mar 16, 2021) [12] Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an Indian Prison The Wire, https://thewire.in/lgbtqia/transgender-prisoners-india (last visited Mar 16, 2021) [13] Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an Indian Prison The Wire, https://thewire.in/lgbtqia/transgender-prisoners-india (last visited Mar 16, 2021)

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