How A Regressive Transgender Act Was Finally Thrown Out
The Telangana High Court recently struck down the state’s Eunuch’s Act which criminalised the entire transgender community. We explain why it was outdated and violative of citizen rights
In a landmark judgement, the Telangana High Court recently struck down the Telangana Eunuchs Act, 1329 F describing it as “unconstitutional”. The constitutional bench, comprising Chief Justice Ujjal Bhuyan and Justice CV Bhaskar Reddy, found the Act violative of Articles 14 and 21 of the Indian Constitution as well as the rights to privacy and dignity of transgender persons.
The Draconian law, first enacted in 1919, criminalised the state’s transgender community by giving the police unprecedented powers to arrest any “eunuch”, a derogatory term for gender-non conforming people found “crossdressing”, singing and dancing in public spaces.
Previously known as the Andhra Pradesh (Telangana Area) Eunuchs Act F, the High Court repealed the act based on a PIL filed in 2018 by transgender rights activist Vyjayanti Vasantha Mogli, and two other activists, Sayantan Datta and KMV Monalisa.
What was the history behind this Act that gained notoriety for its gender discriminatory nature? And what has been the five-year journey of the move to have it repealed? We explain.
The origins of the Telangana Eunuchs Act lie in the Criminal Tribes Act (CTA), 1871 of colonial India which labelled socially marginalised groups who practised hereditary caste occupations as criminal tribes. These communities, which are today known as denotified tribes, mostly practised a nomadic lifestyle and indigenous ways of living. Part II, section 24 of the CTA, criminalised “eunuchs”, defining them as men who “appear to be impotent”. This part of the Act required police to surveil and arrest trans communities who wore women’s clothing and were suspected of kidnapping, and engaging in “unnatural sex”.
The law also banned transgender people from residing with male children under the age of 17 years, and also forcibly removed male children from transgender and hijra households, thereby interfering with hijra succession and inheritance practices.
Historian Jessica Hinchy writes in her book Governing Gender and Sexuality in Colonial India, how the CTA was part of a colonial project to exterminate the transgender population. Transgender communities in pre-Independence India actively participated in public life, engaging in begging, badhai (ceremonies pegged to childbirth and weddings), and expressing their gender through “crossdressing”. But colonial authorities, for whom binary gender notions were unquestionable, considered their practices “obscene”.
Similar to the CTA, the Telangana Eunuchs Act 1919 requires the state government to maintain a register containing the names and addresses of “all eunuchs residing in the City of Hyderabad”, on suspicion that they are engaged in unnatural sex (under section 377) or kidnapping of young boys. Any transgender person who “emasculates himself” could be arrested without a warrant, and could be imprisoned for up to two years for residing with boys under 16 years of age.
While the CTA was repealed in 1952, its after effects have continued to shape Indian law and policy as well as societal sentiments. The Eunuchs Act is one such residue of the times.
Karnataka too, in 2011, introduced a new section in its Police Act – “Section 36(A) Power to Regulate Eunuchs” – that gave unchecked powers to the police to “prevent, suppress or control undesirable activities of eunuchs” . It also allowed the preparation and maintenance of a register of the names and places of residence of all transgender people residing in a particular area who are suspected of “kidnapping and emasculating boys or of committing unnatural offences or any other offences or abetting the commission of such offences”.
However, a PIL filed by the Karnataka Sexual Minorities Forum led by Akkai Padmashali and Jeeva challenged the validity of the section in 2016. Acknowledging that such an Act disproportionately criminalises the transgender population and violates their right to life, liberty and equality, the Karnataka High Court amended it to substitute the word “eunuch” with “persons”. However, many activists feel that this is not enough because it will not eliminate the spirit of Section 36 (A) that is detrimental to the transgender community.
‘Law Was Horrifically Abused’
As we said earlier, in 2018, a group of activists with the help of Centre For Law and Policy Research (CLPR) filed a petition challenging the Telangana Eunuchs Act. They argued that it was violative of the rights of transgender persons and their right to live with dignity, personal autonomy and self-determination as upheld by the Supreme Court in the NALSA v. Union of India and the Justice Ks Puttaswamy vs Union of India & Anr. The Telangana High Court then passed an interim stay on the Eunuchs Act in 2018. The Telangana Eunuchs Act was then repealed altogether in the judgement dated July 6, 2023.
Datta, who is a queer trans science journalist, says how the decision to the Act validated the highly discriminatory and derogatory treatment and perception of the transgender community. “The Act by giving the police unchecked and arbitrary powers allowed the state to treat the transgender community as criminals and second-class citizens”, they say.
It was in their Hyderabad university days that Datta first met Mogli, who later started working on ways to get the Eunuchs Act repealed. Datta joined her petition. “We first started by filing RTIs in the government and police departments in order to generate a database on the frequency of the use of the Act. Even though the Act was not being used substantially, its existence still continued to threaten the lives of the transgender population, who already existed at the margins”, says Datta.
Mogli tells Behanbox that police and public harassment of transgender persons had been going on for years in Telangana. “They would routinely lock trans people up and call them a host of derogatory names. The severity with which SHOs, SIs and ACPs would abuse transgender people was horrific. This was happening despite the NALSA judgement of 2014. If databases had to file a complaint against trans persons, police personnel still used the term ‘Eunuch’,” she says. “Even community-based NGOs responsible for distributing condoms to transgender communities had no idea what it was. They would often ask us “Yeh ‘unuch’ kya hain? Kuchh gali hain kya?” (What is an ‘unuch?’ Is it an expletive?). It went to show how activism around LGBTQIA+ issues was limited to Section 377, with no conversation on the severity and ignominy of the Eunuchs Act.”
Reservation, Constitution of Welfare Board and Pension
Along with the PIL to scrap the archaic law, Mogli, Datta and Monalisa also filed two other petitions in the High Court. “The second PIL i.e KMV Monalisa vs State of Telangana demands the establishment of Transgender Welfare boards as well as horizontal reservation for transgender people, something which Dalit trans activists have been rallying for a long time,” says Datta. The third PIL was to get relief from the authorities in the form of ration, health facilities etc, during COVID-19.
“We have seen that in states that constituted Transgender Welfare boards, like West Bengal and Kerala, they are either not functional or severely lack negotiating powers with the government. With our petition, we hope that transgender Welfare boards constitute at least 50% representation from the transgender community from the grassroots,” says Datta.
In its judgement, the Telangana bench has ordered the state government to issue government orders or administrative instructions to provide reservation to trans persons in education and employment till the Telangana Assembly brings in a law to this effect. It has also directed the state to extend to trans persons the benefits of the Aasara Pension Scheme which offers Rs 2000 per month as financial aid to the elderly, widows, weavers, toddy tappers, AIDS patients, and persons with disability.
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