JUSTICE FOR SHANAVI PONNUSAMY
CONDEMN GENDER DISCRIMINATION AND TRANSPHOBIA
4 th Aug, 2018: Women Against Sexual Violence and State Repression (WSS) strongly condemns the denial of a job by Air India to Shanavi Ponnusamy on account of her identifying herself as a transwoman. In a shameful but sadly commonplace instance of gender discrimination and transphobia, Shanavi was rejected multiple times by Air India for the cabin crew post once her identity as a transwoman was revealed. Twenty six year old Shanavi comes from a deprived background and is the first graduate from her family in Tiruchendur in Thoothukudi district of Tamil Nadu. She graduated as an electronics and communication engineer in 2010 and had been denied employment almost twenty four times because of her gender identity before she managed to secure a job with a private company, Sutherland Global Services (airline sector). She worked for over a year to gain experience during which she also served in customer care services for Air India (domestic and international) in Chennai, before applying for the post of female cabin crew in Air India for its Northern Region. Shanavi applied to the cabin crew post in Air India four times within a span of two years and has been repeatedly denied the job without any explanation, despite her possessing all the necessary qualifications and fulfilling the eligibility criteria.
Since Shanavi identifies as a woman, it is in this category that she applied for the job. As per the NALSA judgement “transgender persons’ right to decide their self-identified gender” is upheld. However, most education boards are in violation of the NALSA judgment because they have not changed the names and genders on the educational documents of transgender people to reflect their preferred name and gender. It is saddening that Shanavi was forced to disclose her personal history as a transgender woman to Air India, just by submitting her documents. From this point onward, she was subjected to enormous ridicule and hostility for identifying as transgender during the qualifying process for the job. In the context of this ridicule, is it any surprise that the examiners gave her a low score in the entirely subjective category of “personality”? When Shanavi wrote to the Prime Minister’s Office for redressal, her complaint was forwarded to the Ministry for Civil Aviation to seek redressal where she was blatantly told that the transgender category “does not exist in the recruitment policy and if this category is introduced anytime in future we will advertised vacancies accordingly”! This is in clear violation of the landmark NALSA judgment of the Supreme Court of India passed in 2014 which unequivocally directs ‘the Centre and the State Governments to extend all kinds of reservation in cases of admission in educational institutions and for public appointments’ to transgender persons in an effort to remedy the extreme marginalization and oppression experienced by the community. In Shanavi’s case, where she identifies herself primarily as a woman, applying under transgender category becomes important in order to avail of the affirmative action programme as promised by the landmark NALSA judgment of the Supreme Court of India passed in 2014. However, the absence of such a category can not be cited as a barrier to her employment. Significantly, the NALSA judgment also upholds the right to identify with the gender of one’s choice. Therefore, we believe that people should be 1able to apply as women/men /transgender based on their self-declared gender identity, regardless of whether they were assigned that gender at birth. Secondly, if there is any discrepancy with the name and gender on education certificates, or if the candidate were to reveal their transgender identity, they should be considered for affirmative action – that is, hired in preference over other applicants who have similar qualifications. Hiring under such affirmative action policies should not be revealed in the workplace by the employer after the employee is hired so that they can work in a stigma-free environment if they choose, and persons hired in the transgender category should be able to chose the gender of their choice to function in the workplace without being forced to stick to the transgender category. Finally, some employees may transition after joining a workplace under a different gender category and the workplace should support this transition.
With no scope for redressal in sight, Shanavi eventually approached the Supreme Court in November 2017 following which the apex court sent a notice to the Ministry of Civil Aviation and Air India directing them to respond to Shanavi’s grievances within four weeks. However, in utter disregard to the court directive, both the Ministry of Civil Aviation and Air India continued to remain apathetic and unresponsive which compelled Shanavi to take a drastic step and write a letter to the President of India seeking mercy killing. In the letter, which was written in February 2018, Shanavi describes her inability to continue with this arduous legal battle especially since she is struggling to meet even her daily expenses due to lack of employment. Most importantly, she asserts that by denying her employment, the government is also denying her the fundamental constitutionally guaranteed right to live her life with dignity and self- respect. Shanavi’s ordeal was only exacerbated when Air India made public statements citing her low scores on the entirely subjective “personality test” as an excuse for not hiring her, despite the fact that any subjective measure would be subject to bias and prejudice against transgender persons. They further began a vicious slander campaign against Shanavi, debunking her case as an attempt to “arm twist” Air India and a “gross abuse of the process of law”. In their abhorrent counter-affidavit filed months past the stipulated time in the Supreme Court as a response to Shanavi’s petition, Air India disparagingly described Shanavi as “inefficient” and “lacking in merit”. The meritocratic argument has been used historically against the assertions made by the socially oppressed groups and it only goes on to expose the deeply pervasive casteist and brahminical attitudes prevalent in our society.
They even stated they would want to file a defamation case for damages against her over the perceived loss to their reputation. Do they even imagine what it means for a transwoman, who has suffered indignity, discrimination and rejection all her life to assert herself and struggle and come to this stage!? Here’s the country’s first ever transperson, in our 70 years of independence, who could be a potential cabin crew and this is how AI seeks to treat her! Is this how the Central Govt. seeks to implement the directions of the Supreme Court in the NALSA Judgement, 2014, that states that transgender persons must not be discriminated against and that the State must take all possible measures to pro-actively provide employment through affirmative action and even reservations?
Shanavi’s ordeal is indicative of the larger oppression faced by the transgender community within the country. The discriminatory practices against them have continued unabated despite the presence of progressive legislations such as the NALSA judgment. The judgment significantly posits gender identification as an ‘essential component required for enjoying civil rights’. Due to their stigmatized and disadvantaged position in society, a widespread exclusion from most forms of employment, and the lack of recognition of their chosen gender identities, transgender persons have been historically deprived of their legitimate natural and constitutional rights. Transgender persons are most vulnerable to sexual violence and other forms of discrimination and social exclusion which include lack of access to education, employment, housing, basic medical facilities, etc. The degree of vulnerability increases in case of individuals belonging to the bottom of the caste and class hierarchy and many transgender women are left with no option but to self organize and eke out stigmatized livelihoods such as sex work and begging for basic subsistence. Furthermore, vast numbers of transgender people are driven out by their families and the lack of familial and peer support aggravates their precarious social existence. In addition, persistent experiences of misgendering, shame, stigma, lack of recognition, rejection and a general lack of sensitization and awareness about their lives increases the risk of severe mental illnesses and suicide within the transgender population.
It is, therefore, shocking that despite being one of the most vulnerable and marginalized groups requiring legal protections, the transgender community has become a subject of mockery by the lawmakers themselves. On July 31, Alka Lamba, the serving MLA from the Aam Aadmi Party (AAP) derisively described transgender persons as ‘beech wale’ (middle- ones) who clap loudly (“thaali peetna”) in a tweet. The remark was made in her apparent criticism of a political rival on Twitter in which she condescendingly stated that, “Even the ‘middle ones’ don’t clap so much as this person does single handedly… Clever people understand by a mere gesture”. For her to reiterate stereotypes in a bid to insult someone, and to further describe the hijra community as “beech vale” smacks of bigotry. This comes at a time when her party, AAP, has pushed for a transgender welfare board to be created in Delhi, and her stand flies in the face of the stand of the Delhi government. A few days prior to this in July, Maneka Gandhi disparagingly referred to the transgender persons as the ‘other ones’ during the parliamentary debate on the Anti- Trafficking Bill, 2018. Her comment was received with widespread laughter by the male Members of Parliament who were also seen smirking and thumping the tables. The comments made by Ms. Gandhi, who is ironically the Minister for Women and Child Development, are reflective of how the legislature is deeply implicated in perpetuating the worst kind of stereotypes against transgender persons. Ms. Gandhi had to later issue a public apology and retract her statements following huge outrage over her comments. WSS condemns in the strongest possible terms the crude and irresponsible remarks made by Ms. Gandhi which not only serve to trivialize the dehumanizing treatment routinely meted out to transgender persons but also reinforces the existing prejudices and the social exclusion which they face as a stigmatized community.
The comments made by Ms. Gandhi and Ms. Lamba are reflective of how the legislature is deeply implicated in perpetuating the worst conceivable stereotypes against transgender 3persons. The ‘Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018’ which was passed in the Lok Sabha on 26 th July 2018, criminalizes sex work and begging, which are very often the only source of livelihood for transgender persons owing to their precarious socio-economic condition. The Bill creates a new category of ‘aggravated trafficking’ which elevates begging as a crime over other forms of trafficking and also criminalizes the supply of hormone therapy commonly used by transgender persons while transitioning. The punishment for ‘aggravated trafficking’ offences is rigorous imprisonment ranging from ten years to life imprisonment along with a minimum fine of one lakh rupees. The bill also criminalizes “fraud for procuring or producing, printing, issuing or distributing unissued, tampered or fake certificates”, which could be used to penalize transgender persons whose gender or name doesn’t not match with that on the legal and ID documents they have acquired in good faith. The Bill also recommends patronizing solutions under the garb of ‘protection and rehabilitation’ such as sending adult victims to rehabilitation homes or repatriating them to the places of their origin within the country. The Bill calls for creation of additional bureaucratic apparatuses and gives arbitrary powers to the judiciary and the police. It must be noted that the drafting of the anti-trafficking bill was not preceded by any study or research conveying the ground realities and was passed hurriedly without holding any discussions with the stakeholders. The recommendations made by the Supreme Court- appointed panel suggesting community-based approach to rehabilitation and revising outmoded laws such as Immoral Trafficking Prevention Act (ITPA) were also ignored entirely in the course of the drafting. The Anti-Trafficking Bill, thus, reduces trafficking to a law and order problem by ignoring its socio-economic dimensions and grossly violates the dignity and autonomy of the persons identified as ‘victims’. WSS demands that this bill should be referred to a standing committee of the Parliament and not allowed to pass the Rajya Sabha without extensively consultations with begging and sex work communities, including transgender and cisgender members of these communities.
The ‘Transgender Persons (Protection of Rights) Bill, 2016’ which is pending in the parliament displays an extremely problematic understanding of transgender identity and calls for the creation of lengthy and bureaucratic hurdles for the recognition of transgender identity by the state. The Bill even encodes discrimination by prescribing lower punishments for physical and sexual assaults upon transgender persons than upon cisgender women. While not providing any reservations or anti-discriminatory punitive measures for transgender persons, in complete violation of the leaps made by the NALSA judgment, the bill criminalizes the tradition of community begging and community living which sustains the transgender community in the wake of exclusion from all other spaces and sources of livelihood. WSS demands that the ‘Transgender Persons (Protection of Rights) Bill, 2016’ be revisited in the framework of NALSA and should be extensively discussed with the transgender community before it is passed in haste.
WSS reiterates its support to Shanavi Ponnusamy and upholds her constitutionally guaranteed right to identify with the gender of her choice. We also extend our solidarity with Shanavi’s struggle for trans-inclusive and non-discriminatory workplaces in both public and private sectors.
We demand that:
• The NALSA judgment must be implemented and upheld in both letter and spirit in the court of law not only through the recognition of the discrimination by Air India but also by assuring Shanavi of her livelihood and her right to live with dignity as already enshrined in Article 21 of the Constitution of India.
• We demand that transgender persons be allowed to select the category of their choice while applying for jobs and that a transgender category be provided instead of just male or female while seeking employment in accordance with the NALSA judgment passed by the Supreme Court of India in 2014.
• All educational boards should immediately comply with the spirit of the NALSA judgment and change the name and gender of the past education certificates issued to transgender persons, upon receipt of their changed government identity documents.
• Shanavi’s fundamental right to privacy and that of all transgender persons applying for jobs, with respect to the revelation of their transgender identity, should be upheld. The outing of Shanavi’s identity as a transwoman in the course of the struggle has already hampered her prospects of seeking alternative employment, thereby exacerbating her vulnerability.
• The ‘Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018’ in its current form must be withdrawn and should be reviewed by the Standing Committee of the parliament in deliberation with all the stakeholders.
• The ‘Transgender Persons (Protection of Rights) Bill, 2016’ must be revisited in the framework of NALSA and should be extensively discussed with the transgender community before it is passed in haste.
• AAP MLA Alka Lamba must issue a public apology and withdraw the insensitive and highly problematic comments made by her against the transgender community.
• Reporters who cover these stories are urged to move beyond describing all transgender persons as “third gender” and instead use “transgender persons”, with an understanding that these persons’ primary identity may or may not be transgender – they must be asked the preferred name and gender and be consistently referred to in that name and gender. The media should please note that transgender people do not “become” the gender of their choice and stop using the wrong pronouns to refer to transgender people prior to any medical transition – transgender persons may have identified with the gender of their choice for years before any medical intervention and when they choose to have medical procedures is a deeply personal decision that is irrelevant to reporting on transgender persons.