1. INTRODUCTION
In its historic judgement, the Supreme Court of India has read down Section 377 for situations where consenting adults willfully take part in carnal intercourse which essentially means that the law will not be applicable in such scenarios. Section 377 managed to survive for almost one and a half decade, impervious to both the anti-colonial struggle as well as the formation of a democratic India, which guarantees fundamental right to choose who to love to all its citizens. But that is not all. Several aspects of our interactions have rested on the premise that the LGBT community has no legal recognition. Now that the situation has changed considerably, an approach which is both flexible and sensitive is required to bring about transformations in the management of public spaces in order to make the society a more inclusive one where rights of every person are respected. Therefore, more space is needed in general to constitute a safe haven for the LGBT community which is often oppressed by the hetero-normative perception of the society. The strongly gendered dimension of public spaces like public restrooms suggests that a discursive revisioning of gender is needed to create a more transgender friendly public space. This assertion can be backed by studying the moves of the biggest spender of the country i.e. the Government. A glance through the data of the Swachch Pakhwada campaign reaffirmed our belief.[1] In nearly every report published by the government in power regarding the toilet construction campaign, data of a number of toilets constructed have been tabulated under heads of ‘Males’ and ‘Females’. This approach surely is disastrous as it leaves out a major population out of its tables and fails to cater to their needs. Moreover, the campaign could have had a more social impact if it had focussed on the other gender too. Both the goals, namely of having better infrastructure and refining the social consciousness would have been achieved if the approach were followed.
In its historic judgement, the Supreme Court of India has read down Section 377 for situations where consenting adults willfully take part in carnal intercourse which essentially means that the law will not be applicable in such scenarios. Section 377 managed to survive for almost one and a half decade, impervious to both the anti-colonial struggle as well as the formation of a democratic India, which guarantees fundamental right to choose who to love to all its citizens. But that is not all. Several aspects of our interactions have rested on the premise that the LGBT community has no legal recognition. Now that the situation has changed considerably, an approach which is both flexible and sensitive is required to bring about transformations in the management of public spaces in order to make the society a more inclusive one where rights of every person are respected. Therefore, more space is needed in general to constitute a safe haven for the LGBT community which is often oppressed by the hetero-normative perception of the society. The strongly gendered dimension of public spaces like public restrooms suggests that a discursive revisioning of gender is needed to create a more transgender friendly public space. This assertion can be backed by studying the moves of the biggest spender of the country i.e. the Government. A glance through the data of the Swachch Pakhwada campaign reaffirmed our belief.[1] In nearly every report published by the government in power regarding the toilet construction campaign, data of a number of toilets constructed have been tabulated under heads of ‘Males’ and ‘Females’. This approach surely is disastrous as it leaves out a major population out of its tables and fails to cater to their needs. Moreover, the campaign could have had a more social impact if it had focussed on the other gender too. Both the goals, namely of having better infrastructure and refining the social consciousness would have been achieved if the approach were followed.
2. GROUND REALITIES
Given the often-contentious intersection between advocates fighting for the rights of LGBTs and the regressive social forces, a central question is how the rights of those are negotiated and secured in the public places. It is important to consider to what extent the society allows individuals to express their gender in ways that may challenge socially expected gender dichotomy without fear of hetero-normative restrictions and approbation. The stereotype fostered by Section 377 is obvious in how other individuals and non-state actors treat the community. The Social disapprobation for the queer community, hitherto backed by Section 377, sanctioned verbal harassment, familial fear, restricted access to public spaces and the lack of safe spaces.[2] The concern with inclusivity is especially relevant in the light of the reformist action by the Apex court in reading down of the harsh section for consenting adults from the Indian Penal Code. There is no doubt that they face special problems the rest of us don’t.[3] For instance, using Public toilets in India is less a matter of choice than of ingrained instinct for most people. Men use the men’s room, women the women’s. For anyone belonging to the transgender community, locating a toilet is a herculean task. Unavailability of specific toilet forces them to use male or female toilets which brings with it the risk of sniggering, stares, taunts, threats of violence, sexual assault and harassment. The Apex court in National Legal Services Authority vs Union of India[4] reaffirmed this finding. And finding a “gender neutral” or unisex toilet is rarely an option. Introducing Gender-neutral toilets in public spaces address the concerns of persons who face intimidation and harassment in gender-segregated facilities when they are perceived by others to be in the “wrong” one. It will require changes in architecture, which are costly or even plain impossible in many of our listed buildings. Most striking and inhumane claim could be that since they constitute a minuscule fraction, a hefty budget cannot be allocated for their welfare. The meagre size of the population of LGBT community cannot be the reason for us to evade our responsibility. The high levels of social stigma attached to being gender variant may also make an assessment of the size of the trans population extraordinarily difficult.
3. WINDS OF CHANGE
In the backdrop of this judgement[5], it is essential for us to pay attention to basic needs of transgender persons such as access to public spaces. Forming a holistic perspective requires that the law focuses on more than just recognising their sexuality. Regulations have to be made in efforts to accommodate all lifestyles to meet the needs and requirements of the third gender in order to steer the movement in the right direction. The demand for gender-neutral public spaces must also be understood from the perspective of a rights discourse. While doing so, it becomes necessary to understand the constitutional source from which the claim emerges. Since the court has now placed the entitlement of the transgender population in a constitutional framework, the matter can be approached from the perspective of constitutional analysis. Therefore, the proposed solution is to construct toilets for the other gender too. However, the task of new constructions involves huge expenditure. This leads us to think for solutions which minimize cost and does not entail new constructions. One solution to this is to reserve one toilet out of the many as a gender neutral. This will involve no extra costs and will sufficiently cater to the population of transgenders. Such a move will not only uphold the fundamental rights of the transgender people but can also mark the starting of an awareness campaign of inclusivity.
The unavailability of Unisex toilets violates the fundamental guarantee against discrimination because it unequally targets those whose sexual expression falls in this category. This results in a denial of the self. Identities are obliterated, denying the entitlement to equal participation and dignity under the Constitution. It is a basic right of every person under Article 21[6] of the Indian Constitution to have access to a safe and hygienic toilet. The stability of India’s foundation lies in its effort to protect diversity in all its facets: in the beliefs, ideas and ways of living of her citizens. The mandate to transform society in allegiance to the constitutional principles is a task vested in the state, the judiciary and in the citizen. We must ensure that rights of transgenders are guaranteed. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society.
[1] Ministry of Drinking Water & Sanitation, Govt. of India, Swachhta Pakhwada, Ministry of Drinking Water & Sanitation (2017), https://mdws.gov.in/sites/default/files/Swachhta_Pakhwada_Year_Book_2017.pdf
[2] Zaid Al Baset, The Tasks Ahead Supreme Court Judgment against Section 377, Economic & Political Weekly (Sept. 29, 2018), https://www.epw.in/journal/2018/39/commentary/supreme-court-judgment-against-section.html
[3] Saptarshi Mandal, Section 377: Whose Concerns Does The Judgment Address?, EPW (Sept. 15, 2018), https://www.epw.in/engage/article/section-377-whose-concerns-does-judgment
[4] MANU/SC/0309/2014
[5] Navtej Johar v. Union of India, 2018 SCC OnLine SC 1350
[6] Article 21, The Indian Constitution
